The Texas BON, the Judge's PFD and the battle over fairness

On July 3, 2012 a public hearing was held by the Texas Board of Nursing regarding the proposed rule changes to 22 Texas Administrative Code 213.23. The proposed rule changes will significantly alter what an Administrative Law Judge is able to do when issuing a PFD (proposal for decision).  This has been a hot issue for several years in Texas and there has been a movement to allow the State Office of Administrative Hearings Judges be the final decision maker instead of the current procedure which sends the Judge's PFD to the Board and the Board determines if they are going to accept the PFD or change it.  This "second bite of the apple" by regulatory agencies causes cries of unjust and unfair by licensees because a licensee can spend the time and money to go to a hearing, win and still end up with a disciplinary action if the Board decides to change the Judge's PFD.  The last session of the Legislature found a bill passing both the House and the Senate only to have Governor Perry veto the bill.  Gov Perry stated he did not believe the SOAH Judges had the same expertise as the Board members and the end result should then remain with the Boards.  However, the hearing process allows for the Board to provide its expertise to the Judge just as the licensee explains their stance.  The hearing process would allow for the Board's policies and procedures to be provided and explained.  Judges are not required to be experts, that is the role of expert witnesses.
Back to the proposed rule changes: 

The Texas Chapter of The American Association of Nurse Attorneys had provided written comments on June 18, 2012 and also requested a public hearing.  We  were not informed of the public meeting but one of our members discovered the scheduled meeting while reviewing the Texas Register.  There were 4 speakers commenting on the proposed rules and below are some of the comments made during the meeting:
A public member stated he did not believe the Board really wanted a public hearing because they limited notice of the public hearing and it was scheduled in the afternoon on the day before a major holiday (June 4).  [As a note, I also wondered why the Board scheduled the public hearing for such an inconvenient date and why the public hearing was not held during the upcoming July Board meeting.  The public hearing was held with only the President of the Board present; no other members were present to hear the comments made in response to the proposed rules]  The public member stated he believed this proposed rule will not decrease costs but will actually increase costs due to increased district court cases filed by nurses who feel so wronged by the process.  He stated this rule takes away from the right to a fair hearing and could lead to the formation of nursing unions as a means to fight the Board's increased regulation.  He said to decrease costs, instead of this rule change the push should be to have the staff move cases and resolve them quicker and the Board should be able to resolve a case within six months.
The Texas Chapter of The American Association of Nurse Attorneys pointed out in addition to their written comments that they believe the NPA requires a Judge to issue sanction recommendations.

The Texas Nurses Association urged the Board to delay any action because they believe the correct venue for deciding a Judge's role in issuing the Proposal for Decision (PFD) is the Legislature and not all the various health care regulatory agencies.  They stated there may be an issue with statutory authority.  They are concerned prohibiting SOAH Judges from making recommendations would have the potential of removing valuable information needed to determine appropriate sanctions.  Finally, they recommended it is probably time for there to be an overall evaluation of SOAH's role by all stakeholders and decide if they are going to be judicial or not.
A defense attorney stated the NPA 301.454 (d) gives SOAH authority and the Judge is bound by the same factors.  Also, this proposed rule will put the Board in the position of judging evidence.  She stated there is a current system which allows the Board to monitor the application of their policy.  Lastly, that there should be an individual approach to discipline because otherwise it is an assembly line approach which removes the need for the specialized Board members and staff.

[This info is also located on healthlicensedefense.com]