I have been representing nurses in disciplinary cases before the Texas Board of Nursing for over ten years. My five lawyer law firm has assisted approximately 1000 nurses in a variety of legal and nursing license matters with the Board. This includes RN’s, LVN’s and advance practice nurses such as family nurse practitioners and CRNA’s. During this time the Board’s Staff attorneys have grown in number from 2 to 6. The Board’s general counsel (Dusty Johnston) has been a constant as has the director of enforcement and the Executive Director –Katherine Thomas. The Staff has grown in number as well with additions made in investigations, enforcement and licensing.
Five years ago the Nursing Board’s case log was backed up and a nurse undergoing an investigation could expect the case to drag on for three to five years. A competent attorney who was familiar with the Board’s processes could expect an informal conference to be afforded to their Client. At this conference reasonable efforts to talk, settle or have the case dismissed would occur before Formal Charges were filed and the matter was set by the nursing board’s lawyers for a contested case hearing at the State Office of Administrative Hearings –SOAH.
Today the Texas Board of Nursing, the enforcement division and its six lawyer Staff have a much different approach. The disciplinary case comes through investigations where it is worked up by an investigator and reviewed by a supervising investigator / team leader. While the team considers material filed by the nurse and their attorney, if there is reason to believe the nurse has violated the Nursing Practice Act the nurse is sent a proposed agreed order for their review. At this juncture one can ask for an informal conference but unless the case is practice related and the evidence is tenuous the request for an informal is unlikely to be granted. Instead, the Respondent Nurse can either accept the offer or the case will move on to SOAH for the next phase of litigation. This is an emotional and difficult decision for any nurse and their attorney.
If the proposed Agreed Order is rejected formal charges are filed internally with the Board and posted on the Texas Board of Nursing’s website for public viewing. Employers often balk at nurses who have formal charges filed against them and many are fired as a result even though they are just defending themselves and their license. Although the nursing license is now tagged or marked the nurse has no ability to defend their license through discovery until the Board’s attorneys docket the matter at SOAH and formal discovery begins. This is tacitly unfair but unless the nurse through her attorney requests the matter be expeditiously docketed they just remain in limbo with a mark across their license and name.