Understanding a Board of Nursing Proposed Agreed Order
Should a Texas Nurse Take the Proposed Disciplinary Order (i.e., Agreed Order) Offered by the Texas Board of Nursing?
Texas nurses who are the subject of a complaint and are the subject of a board investigation may receive a proposed disciplinary order (i.e., Agreed Order) from the Texas Board of Nursing as a way to resolve the complaint. If they accept the proposed disciplinary recommendation and its terms and conditions, without more, this concludes the case against the nurse.
Make no mistake that if this decision is made, this constitutes disciplinary action against that nurse’s license with consequences to the nurse.
Agreed Orders are Disciplinary Orders and They are Permanent and a Matter of Public Record
These disciplinary orders, once entered, become the permanent record for a licensee and will follow him or her for the duration of his or her professional career. The discipline entered will most assuredly follow that licensee to a new state/jurisdiction should the licensee leave Texas because of federal reporting requirements and agreements among state licensing boards to share disciplinary information. Further, most other licensing state licensing boards inquire about disciplinary history of an applicant seeking licensure in that jurisdiction. Texas employers and prospective employers will have access to this information. Because of the magnitude of the consequences, the decision to accept any proposed order is one that should not be made lightly. A licensee would be wise to carefully consider the proposed terms and conditions of the order and its ramifications before agreeing to accept the disciplinary terms and conditions.
Findings of Fact and Conclusions of Law
The basis of any disciplinary action must be supported by the Findings of Fact (i.e., the violation(s)) and the statute and/or Board rule that has been violated; the Conclusions of Law. This means the violation or the misconduct that has been determined by the licensing board during its investigation. If there is a violation(s), the licensee must determine if the conditions and stipulations are consistent with the violation(s). For example, the firm handled a licensing board that proposed that the client attend counseling by a mental health provider based on an underlying violation. The firm successfully argued against this condition as there was no Finding of Fact demonstrating that the firm’s client had mental health issues that affected their practice relative to the underlying finding of violation.
Special care should always be made regarding any proposed condition or stipulation to ensure that it is justified, that it is not too punitive, or that it is not restrictive given the actual Finding(s) of Fact for the case. Most boards, including the Texas Board of Nursing and the Texas State Board of Dental Examiners, for example, have adopted a disciplinary matrix or a guideline that aligns certain discipline for different types of misconduct. These guidelines should always be consulted to determine if what is being recommended is appropriate for the type of misconduct in the case.
Careful Review of Any Proposed Order is Absolutely Crucial
Generally speaking, licensing boards exist to protect the interests of the public. In light of this objective for licensing boards, it should come as no surprise that licensing boards tend to err on the side of caution and recommend disciplinary action along with terms and conditions that may be more stringent and onerous than the findings in the case might ordinarily warrant. Because they are erring on the side of caution (i.e., protecting the public) while attempting to dispose of the case, their proposed disciplinary action, with Findings of Facts and Conclusions of Law in the disciplinary order, will likely tend to be more advantageous to the licensing board.
We find that when licensees accept proposed disciplinary orders and do so without more, including consulting with an attorney, they often will not necessarily receive the best disciplinary order or on the best possible terms.
No Obligation to Accept a Proposed Disciplinary Order Offered and Failure to Accept the Proposed Order Does Not In Any Way Impede or Diminish One’s Defense(s) or Ability to Proceed With One’s Defense(s)
A nurse (or any licensee) should never feel that they must accept the initial proposed order offered. There is no legal requirement or obligation to do so. Declining a proposed order does not terminate rights that one may have regarding appearing in-person before the licensing and regulatory board “informally” or at a “formal” hearing before the State Office of Administrative Hearings (SOAH) to defend against the charge(s). If a licensee believes that they have not done anything inappropriate or that the facts show that they have not violated any rules or regulations, they should reject the proposed order and continue to defend against the allegation(s).
It is important to note that one should not ever merely accept the proposed disciplinary order hoping that they can go back at a later point in time to challenge the order and have it dismissed/removed or to receive disciplinary action that is altogether different than the one they initially agreed upon. Once agreed to and entered by the licensing board an order is public and permanent with very limited ways to have the entered order set aside.
The Bottom Line
Although there may be situations where accepting a proposed order from the licensing board as presented may be appropriate for a licensee in order for them to minimize a combination of time, expense, and stress, more often than not, one should always exercise great care and fully consider what is being offered and the consequences of accepting the proposed order before acting upon such, including the consequences to their professional standing. Special attention should always be paid to the disciplinary terms and conditions including the inclusion and exclusion of certain Findings of Fact and Conclusions of Law. One should remember that rejection of the proposed order is an appropriate response (especially if there were no violations) and additional options remain available.
