TEXAS BOARD OF NURSING
Board of Nursing SOAH Case Hearings
In the event that a nurse’s case is not resolved through either a dismissal or Agreed Order, the Texas Board of Nursing will eventually set up a contested case hearing at the State Office of Administrative Hearings (SOAH). Consisting of several dozen Administrative Law Judges (ALJs), SOAH is an independent state agency whose sole purpose is to hear administrative matters facing Texas state agencies, such as the Texas Board of Nursing. SOAH’s independence is closely guarded and both the Nursing Board and their attorneys are not allowed to communicate with an Administrative Law Judge about a nurse’s case behind closed doors.
If you have a SOAH case, you need the legal experience and knowledge that a qualified Texas nursing license defense attorney of the Leichter Law Firm. Contact us at 512-495-9995 today.
Findings of Fact
A SOAH hearing provides a valuable opportunity for the nurse to present their story before an impartial party. The SOAH ALJ is empowered to receive evidence, make rulings on evidence, and issue Proposals for Decisions (PFDs) containing findings of fact and conclusions of law. The Proposal For Decision is a recommendation to the Texas Board of Nursing and not necessarily a binding decision as the Nursing Board possess some ability to alter the ruling of the ALJ.
Nevertheless, the ALJ’s factual findings are especially important due to the Board of Nursing’s very limited ability to modify a finding of fact. Indeed, the Texas Board of Nursing may only change findings of fact for “technical errors,” such as wrong dates or misspelled names. In comparison, the Texas Nursing Board cannot, for example, change a factual finding by an ALJ that a nurse did not cause harm to a patient, falsify their nursing notes, or divert narcotics. Thus, ALJs can weigh testimony, make credibility determinations, and determine the actual facts of a nurse licensee’s case with a large degree of autonomy.
Conclusions of Law
In contrast, the Texas Board of Nursing has more discretion to modify the ALJ’s conclusions of law. The Administrative Procedure Act grants the Board of Nursing the power to change conclusions of law in order to comply with its interpretation of Board policy or to correct a PFD for relying on an incorrect prior decision.
The Leichter Law Firm’s nursing license defense lawyers have substantial experience making these legal distinctions; in fact, our Board of Nursing attorneys prepare a case from the beginning with an eye towards obtaining findings of fact from the ALJ, rendering it as difficult as possible for the Texas Board of Nursing to reverse a favorable Proposal For Decision.
After the ALJ has finished the Proposal for Decision, both the Board and nurse’s attorney have the opportunity to make exceptions to the PFD. These exceptions provide an additional chance for an experienced nursing license defense attorney to persuade the ALJ to add more Findings of Fact to the PFD to make it increasingly difficult for the Board of Nursing to impose discipline on the nurse’s license. The rules also permit your attorney to refute any exceptions filed by Board staff. Once the period for exceptions has run, the PFD is presented to the full Board at its next quarterly meeting. As this is the one opportunity for the Nursing Board to attempt to alter an unfavorable decision, it is vital that the nurse and their attorney be prepared to successfully avoid any detrimental modifications and convince the Board that they must adopt the ALJ’s ruling as written.
Like most professional licensing boards in Texas, it is the Board of Nursing’s position that it has complete discretion to decide what disciplinary action to impose on a nurse once there is a violation of the Nurse Practice Act. However, the Administrative Procedure Act and governing case law conflict with the Board’s position. The Nursing Board does hold substantial discretion when deciding how to sanction a nurse who has been proven to be in violation of the Nursing Practice Act; however, the Board’s sanction cannot be arbitrary and capricious or outside the Board’s disciplinary practice for similar cases.
Any Texas nurse who has been notified that their case is set for an administrative trial at SOAH should seek experienced legal counsel. The Texas Board of Nursing will be represented by one or more of their Staff attorneys, whose sole job is to obtain a favorable decision that allows the Board to impose the sought after disciplinary sanction. Licensees who represent themselves pro se or are represented by an otherwise capable lawyer unfamiliar with SOAH and the administrative process consistently receive worse results. Additionally, over the last few years the Texas Board of Nursing has steadily increased the number of their Staff attorneys, meaning far more cases are pushed to trial at SOAH than in the past.
Our nursing license defense attorneys at the Leichter Law Firm are experienced SOAH litigators against the Texas Board of Nursing and other Texas licensing agencies such, as the Texas Medical Board, Texas State Board of Pharmacy, Texas State Board of Dental Examiners, Texas Department of Aging and Disability Services, Texas Department of Insurance, and Texas Real Estate Commission. Our lawyers know how to approach a case to achieve a favorable result that will stand firm when it is presented to the Texas Board of Nursing for a final decision. Call 512-495-9995 to talk with our legal team today.