General Overview of the Disciplinary Process
A streaming video, Board of Nursing Complaint Process: Investigation to Resolution, has been developed by the National Council State Boards of Nursing (NCSBN) 2010 Disciplinary Resource Committee and produced by NCSBN. The video is intended for nurses facing disciplinary action and provides a high level overview on the topics:
- The board of nursing investigation process;
- Due process rights;
- Formal and informal administrative hearings; and
- Types of resolutions.
Texas Board of Nursing Overview
More than 16,000 complaints were received by the Texas Board of Nursing (BON or Board) in Fiscal Year 2010 and this number is increasing every year. However, not all complaints result in an investigation or disciplinary action by the Board. Many of the complaints received by the Board contain insufficient information about the nurses identity, are out of the Board's jurisdiction, are considered "minor incidents" or are about issues that even if proven would not constitute violations of the Nursing Practice Act (NPA). In all cases, the identity of the complainant is kept confidential.
The BON provides "due process" to the nurse by notifying him/her of the investigation and the allegations, unless doing so would jeopardize the Board's investigation. The nurse is afforded the opportunity to respond to the allegations made against him/her and to show compliance with the NPA for retention of the license.
The investigator then obtains necessary evidence and interviews witnesses. Most of this process is conducted through the mail and over the phone. Occasionally, investigators make on site visits.
Once all relevant evidence has been obtained, the investigations team reviews the evidence in order to determine whether or not a violation of the NPA occurred. The team then decides whether to close or settle the case, based on the evidence. If the case is closed, the complaint and all evidence is expunged from the nurse's file, unless it is closed without prejudice. All evidence is kept on file in cases closed without prejudice for at least 2 years and then destroyed if no additional information or complaints are received about the nurse during that time period. If the team determines that a settlement is needed to resolve the case, the case will be settled either formally or informally.
Informal Settlement Processes
This process typically begins with the nurse being offered a proposed agreed order containing the investigative findings, conclusions of law, sanction, and stipulated requirements necessary to ensure that the nurse is safe to practice. Typical sanctions and remedies include warning, reprimand, imposition of fines, completion of remedial education classes, practice supervision and restrictions on the license for finite periods of time.
If the nurse agrees with the contents of the proposed order, the nurse and his/her counsel of record sign the order before a notary and return it to the Board's office. The proposed order is then scheduled for review by the full Board or by the Eligibility and Disciplinary committee of the Board at their next meeting. The Board may choose to ratify the order as is, suggest modification, or reject it; however, most agreed orders are usually ratified on initial review by the Board.
When an order is ratified, it then becomes a final order of the Board and the terms of the order are in effect. A copy of the final order of the Board is mailed to the nurse, in care of his/her counsel of record, if applicable, to the last known employer and to the complainant. Disciplinary action is printed in the next BON quarterly newsletter and is also reported to the National Council of State Boards of Nursing, Inc., the Healthcare Integrity and Protection Data Bank (HIPDB), and the National Practitioner Data Bank (NPDB). Most disciplinary actions taken by the Board are public information and become a permanent part of the licensure record.
However, if the nurse does not agree with the contents of the proposed order, he/she will often submit proposed revisions to the order in writing for the Board's consideration. If any of the submitted revisions are accepted, a new proposed agreed order incorporating the accepted revisions will typically be sent.
In some cases and at the Board's discretion, the nurse may be invited to attend an informal settlement conference at the Board's office in Austin. Informal conferences may be scheduled a month or more in advance and provide an opportunity for the nurse and Board staff to engage in a dialogue regarding the evidence, possible violations, and acceptable settlement. Informal settlement conferences are most often used in cases where substantial evidence exists to prove one or more violations of the NPA. In attendance at the conference are Katherine Thomas, Executive Director, or her designee, Anthony Diggs, Director of Investigations, or his designee, legal counsel for the Board, the assigned investigator and the nurse and his/her counsel of record, if applicable. During the conference, all evidence is presented and reviewed and questions are asked of the nurse by those in attendance. The nurse and his/her counsel is also provided the opportunity to respond to the allegations, to ask questions and to provide any additional information that he/she feels is appropriate. At the conclusion of the conference, the nurse is informed of the recommended disposition of his/her case.
If the panel determines that the nurse should be disciplined, the Board will mail a proposed agreed order to the nurse in care of his/her counsel of record. As with other proposed agreed orders, the nurse may sign the order before a notary and return it or he/she may submit proposed revisions to the order for the Board's consideration.
Formal Settlement Processes
If the nurse and the Board are unable to reach an agreement for informal settlement, or if the Board is unable to make contact with the nurse during the investigation, the Board will file formal charges based on the allegations. Formal charges require that the nurse file an answer to the charges in writing. If such an answer is not filed, the nurse's case may proceed toward revocation of the license(s) by default.
If an answer to the charges is filed, negotiations toward an agreed settlement may still occur while a public disciplinary hearing before an Administrative Law Judge (ALJ) is being scheduled. If the case does not reach a settlement and proceeds to hearing, this hearing represents the "nurse's day in court". The Board's staff present the evidence against the nurse and the nurse, who may have legal counsel, is provided the opportunity to present his/her side of the case. The ALJ renders a proposal for decision, which contains findings of fact and conclusions of law, and submits this proposal to the Board. Based on the findings of fact, conclusions of law and the proposal for decision, the Board may find that a violation has occurred and impose a penalty or may find that no violation occurred and close the case with no action.