Recently, the Board of Nurse Examiners has adopted two practices that besides being unlawful under the Board’s own rules and the applicable law cause great harm to the licensee, one even rising to an effective denial of due process. The first such practice involves the prosecution of disciplinary actions by filing formal charges internally against the nurse, without first offering the licensee a chance to present their case at an informal conference. Not only is this skipping of the informal process contrary to Nursing Board Rules, it also places an undue burden on licensees who are needlessly forced to shoulder increased legal costs and emotional strain.
Similar to many Texas state licensing boards, the Board of Nurse Examiners has adopted rules mandating that a licensee facing a disciplinary action be given the opportunity to participate in an informal settlement conference before the filing of formal charges. Pursuant to the Nursing Practice and Administrative Procedure Acts, the Board Rule regarding informal proceedings expressly states that the licensee be given an “opportunity to be heard.” Title 2 Texas Administrative Code § 213.20(b). Presumably, the rationale for this rule is to ensure that licensees and Board Staff have a chance to informally present their respective cases and hopefully achieve an agreed settlement. Such a procedure avoids encumbering the State Office of Administrative Hearings with an additional case when the matter is open to informal settlement. Likewise the costs of a formal SOAH proceeding are far greater for both the Board and the licensee when compared to an informal conference.
Even more egregiously, the BNE has in some cases decided to file formal charges, broadcast such filing on their website for public viewing, but refuse or wait many months to also docket the case at the State Office of Administrative Hearings. This effectively places the matter in administrative limbo as under the APA until the case is docketed, SOAH does not gain jurisdiction over the matter. This means there will not be a date for a formal hearing, an Administrative Law Judge will not be appointed to preside over the case, and parties can not effectively file motions or perform discovery. Title 1 TAC § 155.9(e). Such practice clearly violates SOAH’s Rules of Procedure which explicitly mandate that an agency pursuing a contested case “shall” docket the case. § 155.9. Moreover, a failure to docket the case after the filing of formal charges also contravenes the APA’s stricture that parties are entitled to a hearing on the merits. Texas Government Code § 2001.051. Simply put, the Board of Nurse Examiners has no legal authority to pursue this policy -in fact such practice violates the rules.
Besides failing to adhere to the law, the Board’s contested hearing practice also deprives licensees of due process. This is not surprising given that the rules being ignored by the Board were designed precisely to safeguard this Constitutional guarantee. Whenever the Board files formal charges against a licensee they also provide public notice that such licensee faces pending charges of a disciplinary nature. This public notice, without the presence of an agreed order finding any actual wrong-doing by the licensee, in turn causes significant damage to a nurse’s current and future employment prospects, their finances, and their professional reputation. This is all the more so if the BNE has also chosen to wrongly circumvent the informal settlement process. If the licensee was able to actively pursue dismissal of the BNE’s allegations or whatever relief they are entitled to, public notice would not rise to the level of a due process problem. Yet absent the docketing of the case this issue comes into plain focus; the nurse is subjected to the stigma of pending formal charges without any chance to clear their name. The BNE’s heinous policy of filing formal charges against a licensee accusing them of violating the Nursing Practice Act and Board Rules without taking the next step of ensuring they will have their day in court not only violates applicable law, it also represents a deprivation of even the most basic semblance of due process.
Unfortunately, the BNE’s inexcusable trial tactics do not appear to be a merely temporary turn. I speculate that the Board’s current practices may be due to the sharp increase in licensure actions pursued by the Board in recent years and the resulting difficulty to an overburdened Board Staff. Since the surge in licensure actions has no signs of letting up in the near future, the BNE will likely continue its current tact. In truth, these two practices should be seen as linked: the Board shouldered with more disciplinary actions than it can handle starts to bypass informal conferences and instead goes straight to SOAH, but then in order to place the matter on the back-burner, the BNE avoids their responsibility to docket the case. Yet, regardless of the administrative difficulties they may be facing, the law says what it says and that is that a licensee is entitled to and “opportunity to be heard” in an informal hearing and then in a formal hearing on the merits once formal charges have been filed. If the Board truly is experiencing difficulty in handling their case load the correct recourse is to petition the state government for more resources. It is not an excuse to violate the clear mandates of state administrative law.