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Texas Board of Nursing Defense

Understand how BON Affects Your Nursing Practice

What is the Texas Board of Nursing (BON)?

The Texas Board of Nursing (BON) is entrusted with overseeing and regulating nursing practices within the state of Texas. This authority is granted to BON through the Texas state legislature in accordance with the Texas Nursing Practice Act. Under this Act, BON is empowered to both issue licenses and take disciplinary actions against nurses who violate the Nursing Practice Act, as well as the administrative rules and regulations adopted by the Board to interpret and enforce its statutes.

In addition, BON has the mandate to establish eligibility criteria for licensure for all categories of nurses, including registered nurses (RNs), licensed vocational nurses (LVNs), and advanced practice nurses (APNs) in Texas. Additionally, BON holds the authority to discipline these nurses, exerting control over their licensure status when necessary.

How does BON affect Your Nursing Practice?

Texas boasts a staggering 300,000 licensed nurses, with its Board of Nursing earning a reputation for its proactive and strict approach in comparison to other state licensing boards. This number significantly surpasses the combined total of licensees supervised by various other Texas regulatory bodies, including the Texas Medical Board, Texas State Board of Pharmacy, Texas State Board of Dental Examiners, and Texas State Board of Veterinary Examiners.

With the healthcare industry leaning towards increased involvement of skilled nurses across various healthcare settings, along with a growing reliance on Nurse Practitioners and other Advanced Practice Nurses in primary care, it is foreseeable that the Nursing Board’s responsibilities will continue to expand in tandem with the state’s burgeoning population.

Types of BON Disciplinary Cases

Disciplinary cases falling under the Texas Board of Nursing’s authority involve two distinct aspects — substantive and procedural. The substantive aspect centers on the essence of the allegation or the nature of the issue in question, whereas the procedural aspect pertains to the particular phase within the disciplinary process.

Procedural milestones or stages in the development of an investigation or BON disciplinary case handled by the Phan Law Firm include:

  • Agreed Order Negotiations
  • Appeals and Motions for Rehearing
  • Appeals of Board Actions to District Court
  • Formal Charges
  • Informal Settlement Conference
  • Investigation Phase
  • Nursing Board Hearings
  • Probation or Agreed Order Violations
  • Receipt of an Initial Complaint Letter
  • State Office of Administrative Hearings (SOAH) Contested Case Proceedings
  • State Office of Administrative Hearings (SOAH) Mediations
  • Temporary Suspension Hearings

BON Board Hearing Representation

Types of nursing license defense cases handled by the Phan Law Firm include: 

  • Allegations of Patient Abuse
  • Board Order Violations and Compliance Issues
  • Chemical Dependency/Substance Abuse
  • Complaints Originating from DADS or APS
  • Criminal Arrests and Convictions
  • Discipline by Another State Licensing Board
  • Documentations Errors
  • Failure to Disclose Criminal History
  • Falsifying Documentation
  • Inability to Practice due to a Physical or Mental Health Condition
  • Intemperate Use of Drugs or Alcohol
  • Negative Nurse Peer Review
  • Non-therapeutic prescribing by an APN
  • Practice Violations
  • Scope of Practice Violations
  • TPAPN Violations
  • Unprofessional Conduct

Understanding the BON Complaint Process

Written Notification from BON

Nurses will receive written notification from the Board of Nursing that they are being formally investigated.

The written notification will contain each allegation of wrongdoing. In this notice of complaint letter, the Board of Nursing specifically alerts the nurse, referred to in this setting as the Respondent, that they are empowered and entitled to hire the assistance of an attorney. This, perhaps, is one of the most powerful lines in the Board complaint letter as it advises the Respondent nurse that they are entitled to hire an attorney.

What Happens After the Complaint is Filed

Once a Board complaint is received from the originated source (e.g., hospital or nurse’s employer) and the Board, depending on the type of violation(s) involved, opens up an investigation against the nurse, and a complaint letter is prepared and sent to the nurse’s last known address on file at the Board as required of all nurses who must provide the Board of Nursing with an updated address, outlines the allegations in the complaint letter and provides cursory information and notice to the nurse.

The Board of Nursing will then inform the nurse in this communication that he or she must respond to the Board and respond specifically with an explanation to each and every allegation contained in the letter. The Board of Nursing will also advise, in the letter, that the nurse must respond with an explanation by an internally determined date (i.e., not statutory or rule), usually thirty days from the date of the letter and not the date the letter was received. It is critical that the nurse who receives this letter not ignore the letter as the act of failing to cooperate with the Board and a Board investigator is in and of itself a violation that can also be actionable for discipline.

One should know that the Board of Nursing has subpoena powers. This means that it can legally compel parties (usually hospitals) and individuals (usually individuals working at hospitals) to provide information to the Board as part of its authority under the statute to conduct an investigation. Thus, the Board of Nursing can compel and obtain information such as medical records and a nurse’s employee/personnel file and can compel witnesses to provide witness statements (i.e., affidavits). This process at the Board is the investigatory process in which the Board attempts to determine whether it has sufficient evidence or proof to establish the alleged violations in the complaint letter.

One should understand that the Board of Nursing, because it is the party bringing forth claims of wrongdoing, is deemed, under the law, as the party who bears the burden of proving the violation(s). This means that it is not the responsibility of the nurse to disprove that he or she is in violation, at least under the law and legal standard. Accordingly, in any case reviewed, it is critical to review and understand the evidence and information available to the Board of Nursing in determining the manner and course of action for the nurse faced with a Board complaint.

As the investigatory process evolves, the Board of Nursing, as part of its investigation process, will most likely attempt to use the explanation provided by the nurse who is responding to the allegation(s) as part of its case to determine whether or not the nurse engaged in the conduct alleged. In other words, any admissions of wrongdoing, even those that were not alleged in the letter, will be used against the nurse to establish a violation(s) against the nurse, subjecting the nurse to discipline. If nothing else, this potential pitfall is crucial for a nurse who may be wavering on whether he or she wants to hire an attorney to resolve in hiring an attorney and the Phan Law Firm, P.C., as soon as the complaint letter is received.

A Finding(s) During the Investigatory Process of a Violation(s) and the Proposed Agreed Order

Suppose the Board of Nursing believes, during the course of its investigation, that a nurse has committed a violation(s). In that case, it will issue a proposed disciplinary order, otherwise known as an Agreed Order.

The proposed Agreed Order will list specifically each violation and the provision in the law for that violation. The proposed Agreed Order will also contain the proposed permanent mark of discipline, which ranges from the least severe, such as the Remedial Education mark, all the way to the most severe mark, a Revocation.

A nurse who receives this proposed Agreed Order must decide whether to accept the proposed discipline or to further contest the determinations of the Board of Nursing if he or she disagrees, either contested parts of the proposed Agreed Order that is objectionable or as a whole; the entirety of the proposed Agreed Order.

It is important to understand that if a nurse agrees with the proposed Agreed Order and signs it, this will be disciplinary action on the nurse’s license that will be permanent for as long as the nurse holds a license (notwithstanding a few exceptions).

The Formal Disciplinary Phase of a Board of Nursing Investigation

If the nurse does not agree with the proposed Agreed Order, the Board of Nursing will file a document known as Formal Charges.

This is a legal document that specifies each allegation against the nurse and the legal authority for that claim. Once this document is filed, the complaint itself becomes public in nature as the Formal Charges are attached next to the nurse’s licensure information on the Board’s website.

The Board of Nursing then begins the formal resolution process by filing the matter for a contested case hearing (i.e., trial) with the State Office of Administrative Hearings (SOAH) before an Administrative Law Judge (ALJ).

A Contested Case Hearing at the State Office of Administrative Hearings

In this formal proceeding, the Board of Nursing attempts to persuade the ALJ, with the evidence it has accumulated, that the nurse is in violation of the alleged wrongful conduct.

Because the nurse is a party to this proceeding, he or she will assuredly be called as a witness to this proceeding. One must know that a nurse who enters this phase of the proceedings will be afforded due process, but one must understand the process of this formal proceeding and not ignore it.

If the Board of Nursing is successful in persuading the ALJ, the ALJ will issue a decision called a Proposal for Decision (PFD) with findings of fact and conclusions of law. If there is a finding of violation found, the nurse, invariably (with few exceptions), will receive discipline on their license from the Board.

Important Considerations

A nurse should be aware that once an attorney is hired, the attorney is able to speak, visit, and negotiate directly with the Board investigatory staff and Board attorney on behalf of the nurse. When an attorney is hired, the Board of Nursing can no longer contact or visit directly with the nurse without that nurse’s attorney’s permission. In the firm’s experience, cases that attorneys handle receive different treatment than those without.

How do we know this? Experience. Over the years, the firm has been hired by many nurses who initially did not hire an attorney. Upon review of the Board’s evidence in the matter and upon review of the proposed action by the Board, the result attained by the firm and how the Board interacts with the firm almost invariably differed from what was originally proposed to the nurse without an attorney.

Having seen this pattern repeat itself with regularity, the firm can say with a fair degree of certainty that having counsel assist a nurse with a Board complaint, at a minimum, equalizes the playing field given that the Board staff investigator is being advised by an in-house staff attorney at every turn. Given that the Board has at least seven in-house attorneys, one must seriously consider hiring an attorney specializing in this area of practice to guide the nurse through the disciplinary process.

During the Board of Nursing’s disciplinary complaint process, it is important to recognize that the Phan Law Firm, P.C., is devoted to defending nurses, whether they are licensed vocational nurses, registered nurses, and/or advanced practice nurses, with respect to complaints that affect their licenses. As a leading Texas Board license defense firm, Phan Law Firm devotes its practice exclusively to defending nurses and other professionals.

Nursing Board Defense Lawyer

The above is a brief outline of the disciplinary process for a nurse, regardless of his or her practice field or practice facility, faced with a Board complaint. Both types of processes are well known to Mr. Phan as he served as the Assistant General Counsel with the Texas Board of Nursing (BON), in addition to being the head attorney at the Texas State Board of Dental Examiners and a former State of Texas prosecutor exclusively dealing within the area of administrative law.

In private practice for the last 15 years, Mr. Phan has focused his practice exclusively on defending nurses and similar other health-related professionals against Board complaints and disciplinary proceedings.

As one can see, the disciplinary process is daunting. Each step requires an experienced attorney in this area who can provide sound, thoughtful legal advice at each instance so that the nurse is in the best position to understand the consequences of each action and make the best decision for him or her, depending on the unique facts of each case.

Nurses often feel alone when faced with a Board complaint, not knowing who to turn to for help involving a complaint brought by the Board of Nursing. The Phan Law Firm, P.C., understands this. Candidly, the decision to hire an attorney is a critical and important decision, one that is not to be taken lightly. Given the years of education and training by nurses, the firm expects that each potential nurse-client will continue to do his or her due diligence in researching an attorney and finding an attorney and firm that can best obtain the right result for him or her. One of the key considerations, the firm believes, is whether that attorney has experience with the Board of Nursing and has defended nurses before the Board of Nursing. The Phan Law Firm has the right expertise for the best possible results.

Texas Board Defense Lawyer

Former Texas Board of Nursing (BON) Assistant General Counsel, former Texas State Board of Dental Examiners (TSBDE) General Counsel, and former Texas State Prosecutor with an intimate understanding of the board complaint process, disciplinary proceedings, licensure issues, and SOAH contested case hearings.