Administrative Hearings- What are Those?

Having spoken with several nurses recently, it is obvious that an Administrative Hearing is not well understood. A hearing in Administrative Law is comparable to a trial in criminal or civil courts. The main exception is that there is no jury in Administrative Law and some of the evidence rules are different. But, an Administrative Hearing is just as serious as a criminal case or a civil lawsuit.

The Texas Board of Nursing does not usually go to a hearing at the State Office of Administrative Hearings (SOAH)with a nurse unless the allegations are serious or the Board has not been able to obtain a response from the nurse or the parties have not been able to resolve the case through negotiations. The case may not be negotiated either because the nurse does not believe she/he did anything wrong, or they do not agree with the severity of the proposed restrictions by the Board.

Hearings are very expensive and time consuming and there is little control over the outcome, which are the reasons I try to avoid hearings. The Board is usually reasonable and a negotiated agreement that the nurse is content with and that protects the public can usually be reached by the parties. However, this is not always true and at times the only solution is to proceed to a hearing in order to protect one's rights.

The key hint to nurses is to NOT ignore the correspondence sent by the Board and to be sure and seek appropriate legal advice when that correspondence is received.

Help for Nurses Accused of Impairment

The Texas Board of Nursing and TPAPN have developed a program called the Extended Evaluation Program (EEP) that promises to be a big help to those nurses accused of substance abuse, that have a positive drug screen, but that have been evaluated as having a low probability of substance abuse. Think about a situation where a nurse took a pain pill and then was screened at work and came up positive. The nurse is adamant that he/she does not have a problem with drugs and is not a candidate for traditional TPAPN. The Board wants to monitor the nurse to assure that the nurse does not have an issue with drugs or alcohol. EEP seems to be the answer.

EEP allows TPAPN to screen the nurse for drugs and alcohol for a year. Participation in EEP is confidential and if after one year, the nurse remained compliant with the program, the matter is dismissed. Because the program is so new, I have not heard of any issues or problems.

Who Reviews The Board?

There is an article in the 9/23/07 Austin American Statesman that asks Should The Sun Set On The Sunset Committee? The Sunset Committee is charged with reviewing state agencies to determine if they are fulfilling their mandates and deserve to continue. I personally have not been pleased with the Sunset Committee. I testified this summer when the Texas Nursing Board was being reviewed. Although everyone that testified informed the Sunset Committee that TPAPN should not be altered, the Sunset Committee still recommended changes which the Legislature enacted. The impression was that it did not make a difference to testify before the Committee.

To Lie or Not To Lie

The Legislature passed HB1168, which allows a licensing authority (like the Board of Nursing) to deny an application for licensure or to suspend or revoke a license if the individual (nurse) knowingly:

1. made a false statement when applying or renewing a license
2. misrepresented information when applying or renewing a license
3. refuses to provide information when requested by the agency
4. failed to provide all of the individual’s criminal history

The Texas Nursing Board has been doing this, but this new legislation establishes a more formal proceeding and adds these provisions to the Government Code, a state statute.

Never, Ever Lie to the Board. True, they may not find out, but if they do discover the falsification, the resulting disciplinary action on the individual is increased.