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Investigation Phase

The Investigation Phase with the Texas Board of Nursing (BON) revolves around the initial investigation letter, (as discussed in the previous section), the licensee’s response to the letter, and an oftentimes long waiting process.  Although the legal procedural process for Registered Nurse (RN), Licensed Vocational Nurse (LVN), Certified Registered Nurse Anesthetist (CRNA) and Advanced Practice Nurse (APN) is the same, the substantive issues and the legal manner of response from the licensed nurse is often practice specific and will vary given the nature of the complaint and the practice specifics as noticed by the complaint.

The licensee’s response to the initial investigation letter will shape the rest of the investigative process, which usually necessitates the experience of an administrative law attorney who does a great deal of work in the area of Texas professional license defense / Texas nursing license defense.  There are many pitfalls to answering correspondence from the Board.

The common mistakes we see when nurse licensees respond to the Board on their own include:

    • Volunteering extraneous information that may be evidence of a violation, or volunteering information that could cause the investigator to widen their search for other potential violations.
    • Admitting to violations without a good understanding of what they are admitting to.
    • Writing in a manner that is not clear or conducive to clarifying the issues raised in the Board’s allegations.

There is an art to responding to the Texas Nursing Board, and the benefit to submitting a clear, thoroughly thought-out response can in some cases be dismissal of the case entirely.  If dismissal is not possible, then the response can at least narrow down the allegations.

Many times, before we make a substantive response to the BON’s allegations, our nurse attorney’s will make a legal request / demand for information from the State Board’s investigative file.  This allows us to have more information about what is alleged before we make our response.  After submission of a response to the Board’s investigative letter, it commonly takes a few months before the BON responds, and the responses can be varied.

If there is a question of the licensee’s fitness to practice nursing, sometimes the BON will respond with a request that the licensee be subjected to a forensic evaluation or a substance abuse evaluation with a polygraph component.  The evaluation must be done by someone on the Board’s approved list, and we typically send clients to the evaluators that have proven to be objective in their evaluations.  An evaluation can have a great effect on how the Board ultimately proceeds, for better or for worse.  A bad evaluation can be very difficult for the Board to see past, whereas, a good evaluation can lead to a dismissal of one’s case.

Speaking of dismissal, sometimes a clear and well-reasoned response to the Nursing Board’s investigative letter can result in dismissal of the case.  The opportunity to have the BON close their investigation early on is reason enough to hire an attorney experienced with Texas Nursing Board matters and legal process upon receipt of that initial investigation letter.

It is also common for the Texas Board of Nursing to respond with a Proposed Agreed Order.  The Agreed Order is the BON’s attempt to settle cases before they go to trial.  Sometimes, the offer is reasonable and we will recommend that our client take it.  Sometimes, the Agreed Order is borne out of the same misunderstanding of the situation that is reflected in the initial allegations.  In that case, we take the opportunity to negotiate the Agreed Order.

Negotiating with Board staff over what is appropriate and what is not appropriate in regards to an Agreed Order is a tough task, and should be left in the hands of an experienced administrative law attorney.  An experienced professional licensing defense attorney will know what is possible, what is typically done by the Texas State Board, and what the alleged violations are “worth” in terms of discipline.  The Texas nursing license defense lawyers of the Leichter Law Firm have handled well over 1000 Texas Board of Nursing matters we have a bevy of cases to compare the active case to and we are well aware of the precedential value of a file given a set of facts and alleged Texas Nursing Practice Act / Nursing Board Rule violations.  Contact us today, at 512-495-9995.