Monday, May 5, 2008

SOAH Hearings and Justice

If you have never been to a Board of Nurses' hearing before the State Office of Administrative Hearings, you are very lucky. This proceeding is what the BON uses if all methods of informal resolution fail. SOAH hearings are similar to trials, although there is no jury only an administrative law judge. During the hearings, evidence is offered and testimony is given and after all pleadings are completed by both the Board and the nurse, the Judge makes a proposal for decision. It is now when the process becomes unfair.

With normal trials, if one of the parties to the proceeding does not like the outcome, they must appeal the decision to a higher court. In Administrative cases in Texas, the Administrative Law Judge issues a proposal for decision, but they are not the ultimate decision maker, they are only proposing a resolution of the case based on the evidence. The case is then presented to the BON to decide whether to accept or alter the Judge's decision. So, even though the nurse has spent lots of time and money to present his/her case, the BON can decide not to accept the Judge's recommendation. Then the only recourse is for the nurse to spend more time and more money to take the matter to a higher court.

The just and fair process would be to have the SOAH Judges be the ultimate fact finders and then if either side is unhappy with the recommendation, they can appeal it. As the process is currently, the BON has vast power over a process in which they were not present to hear or review the evidence. I was recently at the BON regarding a hearing in which the Judge recommended that the charges against my client be dismissed. At the Board meeting, there were some Board members voicing their dislike of the recommendation and wanting to impose restrictions. This was without reviewing any of the evidence or the testimony. One member even stated that the recommendation for dismissal could have been due to legal maneuvering. If the Board members had been able to be at the hearing, they would have heard testimony that overwhelmingly supported my client, they would have heard that the Board's expert was confused as to the facts and was basing his opinion on faulty information, they would have heard how my client was being held responsible for something she had no control over or responsibility for and they would have seen that there was no evidence to support the Board's allegations. The problem is that the Board is used to seeing violations of the Nurse Practice Act and they are not accustomed to having an innocent nurse come before them, so they assume that there must be some other explanation other than the evidence that the Judge considered.

What ended up happening is that the Board issued an Order and Opinion that contained information which was incorrect and not supported by the evidence of the case. Although, I pointed this out to them and told them that the Judge in the case had also stated that the rationale being presented by the Board's staff was incorrect in light of the evidence. Yet, the Board accepted the Board staff's position and enacted this arbitrary and capricious Order which is a valid appellate issue. But, my client does not want to spend additional money to pursue the case with an upper court.

Too often nurses do not fight the Board, even when they are innocent, because they cannot afford the fight and even if they could what good will it do when the Board can alter the Judge's recommendation. Nurses must contact their professional associations and their state Senators and state Representatives to get this changed. The process should be fair for all, nurses and BON alike. SOAH needs to be the ultimate decision maker in administrative law hearings.

As a final note, please be sure to read my posts regarding malpractice insurance and why all nurses should have insurance to cover administrative actions. Also, be sure that the insurance you get offers at least $20,000 for administrative hearings and that they do not put a cap on the attorney's billable rate (so that you are not restricted in whom you want to hire).