Earlier, I had posted an excerpt from the Texas Register regarding a proposed change to the Rules of the Texas Board of Nursing. On June 13th, the Board posted notice of a Public Hearing on the matter (The notice is after the jump).
The timing of this is interesting, because as the President-elect of The American Association of Nurse Attorney’s – Texas Chapter, I was involved in vetting a letter requesting a public hearing sent from TAANA-Texas on June 18th, several days after this matter was set for a public hearing. Unfortunately, I don’t know at this time who else is requesting a public hearing, or if the Board was anticipating the TAANA-Texas filing.
Now that the “political” intrigue is out of the way, if you are a nurse in Texas, you need to pay attention to this rule change. In my opinion, it is designed to trample the due process rights of nurses by removing the recommendation of a sanction by a neutral party (the Administrative Law Judge) and vesting it completely in the hands of the Board of Nursing. In effect, Board staff, who are effectively the investigators and prosecutors, will have all of the power to recommend sanctions, which are generally rubber-stamped by the Board members. There is no statutory authority for the Board to be taking this action and a recent court decision (Froemming v. Texas Board of Dental Examiners, No. 03-11-00399-CV Court of Appeals of Texas, Third District, Austin, June 1, 2012) indicates that a recommendation for sanction is the same as a finding of fact or conclusion of law, even though the Board has the authority to overturn the sanction, as long as they don’t abuse their discretion in doing so:
In essence, the Board argues that the ALJ’s label of “recommendation” removes any limit on its discretion to change or modify the ALJ’s penalty recommendation. We disagree that the labeling of the ALJ’s proposed sanction as a “recommendation” rather than as a “finding of fact” or a “conclusion of law” ultimately determines its binding effect. While this Court has previously recognized that an agency, like the Board, is not required to give “presumptively binding” effect to an ALJ’s recommendation regarding sanctions in the same manner as with other findings of fact and conclusions of law, we have nevertheless analyzed whether the requirements of section 2001.058(e) of the APA have been met. Froemming, at 7.
In a footnote to this selection, the court gives even more reason to consider a sanction on the same footing as a finding of fact or conclusion of law in the Proposal for Decision:
Further, the propriety of distinguishing an ALJ’s recommendation regarding sanctions from other findings of fact and conclusions of law, as urged by the Board, has recently been called into question by a leading commentator in Texas administrative law. Ron Beal, Contested Cases Under the Texas Administrative Procedure-Act-Selected Issues: Ex Parte Contacts and Disciplinary Rule 3.05; the Breadth of the Agency Record; ALJ Findings Related to Proposed Sanctions; and the Power of an Agency to Modify, 12 Tex. Tech. Admin. L. J. 223, 278 (2011). Froemming, at 7, fn. 4.
The hearing will be July 3rd, at 1:00pm. If you wish to make comments on the proposed rule, the contact information for sending comments is after the jump.