Current through Reg. 50, No. 13; March 28, 2025
(a) The Board's policy is to encourage the
resolution and early settlement of internal and external disputes, including
contested cases, through voluntary settlement processes such as informal
proceedings or alternative dispute resolution. Any matter within the Board's
jurisdiction may be resolved informally by stipulation, agreed settlement,
agreed order, dismissal, or default. These matters may also be resolved using
any ADR procedure or combination of procedures described by Chapter 154, Civil
Practice and Remedies Code.
(b) In
disciplinary matters, the Board shall offer the complainant and the licensee
the opportunity to be heard. The offer may be made at any time prior to
disposition and may be included on the Board's complaint form, on any notice
required by statute or these rules, or otherwise.
(c) Informal proceedings may be conducted in
person, by attorney, or by electronic, telephonic, or written
communication.
(d) Informal
proceedings shall be conducted pursuant to the following procedural standards:
(1) Respondent shall have a right to be
represented by an attorney of record. At any time, should respondent choose to
obtain representation by an attorney and advises staff of such choice, the
conference will be discontinued;
(2) Respondent will be expected to answer
questions concerning the allegations contained in notice of complaint or formal
charges, but may decline to answer any questions posed during the
conference;
(3) Respondent and
staff participation in the conference is voluntary and may be terminated by
either party without prejudicing the right to proceed with a contested case.
Respondent will be expected to cooperate fully with the Enforcement Staff to
ensure that it has all pertinent information relating to the complaint or
formal charges against respondent; and
(4) Although, a verbatim transcript is not
being kept of the informal conference, party admissions and outline notes may
be used at a formal hearing if this matter is docketed as a formal complaint at
the State Office of Administrative Hearings.
(e) Informal conferences may be conducted at
any time by the executive director or designee.
(f) The Board's counsel or assistant attorney
general shall participate in informal proceedings.
(g) Disposition of matters considered
informally may be made at any time in an agreed order containing such terms as
the executive director may deem reasonable and necessary. Except as to matters
delegated to the executive director for ratification, said agreed order shall
not be final and effective until the Board, or an eligibility and disciplinary
committee, votes to accept the proposed disposition.
(h) Referral to peer assistance after report
to the Board.
(1) A nurse required to be
reported under Texas Occupations Code Annotated §§301.401 - 301.409,
may obtain informal disposition through referral to a peer assistance program
as specified in Texas Occupations Code Annotated §301.410, as amended, if
the nurse:
(A) makes a written stipulation of
the nurse's impairment by dependency on chemicals or by mental
illness;
(B) makes a written waiver
of the nurse's right to administrative hearing and judicial review of:
(i) all matters contained in the stipulation
of impairment;
(ii) any future
modification or extension of the peer assistance contract;
(iii) the future imposition of sanctions
under Texas Occupations Code Annotated § 301.453 in the event the
executive director should determine the nurse has failed to comply with the
requirements of the peer assistance program; and
(C) makes a written contract with the Board
of Nursing through its executive director promising to:
(i) undergo and pay for such physical and
mental evaluations as the peer assistance program determines to be reasonable
and necessary to evaluate the nurse's impairment; to plan, implement and
monitor the nurse's rehabilitation; and, to determine if, when and under what
conditions the nurse can safely return to practice;
(ii) sign a participation agreement with the
peer assistance program;
(iii)
comply with each and every requirement of the peer assistance program in full
and timely fashion for the duration of the contract and any extension(s)
thereof; and
(iv) waive
confidentiality and privilege and authorize release of information about the
nurse's impairment and rehabilitation to the peer assistance program and the
executive director of the Board of Nursing.
(2) Disposition of a complaint by referral to
a peer assistance program is not a finding which requires imposition of a
sanction under Texas Occupations Code Annotated § 301.453.
(3) In the event the nurse fails to comply
with the nurse's contract with the Board of Nursing or the nurse's
participation agreement with the peer assistance program, such non-compliance
will be considered by the executive director at an informal proceeding after
notice to the nurse of the non-compliance and opportunity to respond. At the
informal proceeding, the executive director may consider facts relevant to the
alleged non-compliance, modify or extend the contract or participation
agreement, declare the contract satisfied or impose §301.453 sanctions on
the nurse which will result in public discipline and reporting to the National
Council of State Boards of Nursing's Disciplinary Data Bank.
(i) ADR shall be
conducted pursuant to the following procedural standards:
(1) Any ADR procedure used to resolve
disputes before the Board shall comply with the requirements of the NPA,
chapter 2009 of the Government Code, and any model guidelines for the use of
ADR issued by the State Office of Administrative Hearings, which may be found
at: http://www.soah.state.tx.us.
(2) The Board's general counsel or his
designee shall be the Board's dispute resolution coordinator (DRC). The DRC
shall perform the following functions, as required:
(A) coordinate the implementation of the
Board's ADR policy;
(B) serve as a
resource for any staff training or education needed to implement the ADR
procedures; and
(C) collect data to
evaluate the effectiveness of ADR procedures implemented by the
Board.
(3) The Board, a
committee of the Board, a respondent in a disciplinary matter pending before
the Board, the executive director, or a Board employee engaged in a dispute
with the executive director or another employee, may request that the contested
matter be submitted to ADR. The request must be in writing, be addressed to the
DRC, and state the issues to be determined. The person requesting ADR and the
DRC will determine which method of ADR is most appropriate. If the person
requesting ADR is the respondent in a disciplinary proceeding, the executive
director shall determine if the Board will participate in ADR or proceed with
the Board's normal disciplinary processes. The matter may be submitted to ADR
only upon approval by all concerned parties.
(4) Any costs associated with retaining an
impartial third party mediator, moderator, facilitator, or arbitrator, shall be
borne by the party requesting ADR.
(5) Agreements of the parties to ADR must be
in writing and are enforceable in the same manner as any other written
contract. Confidentiality of records and communications related to the subject
matter of an ADR proceeding shall be governed by §
154.073
of the Civil Practice and Remedies Code.
(6) If the ADR process does not result in an
agreement, the matter shall be referred to the Board for other appropriate
disposition.
(j) If
eligibility matters are not resolved informally, the petitioner may obtain a
hearing before SOAH by submitting a written request to the staff.
(k) If disciplinary matters are not resolved
informally, formal charges may be filed in accordance with §
213.15 of this title (relating to
Commencement of Disciplinary Proceedings) and the case may be set for a hearing
before SOAH in accordance with §
213.22 of this title (relating to
Formal Proceedings).
(l)
Pre-docketing conferences may be conducted by the executive director prior to
SOAH acquiring jurisdiction over the contested case. The executive director,
unilaterally or at the request of any party, may direct the parties, their
attorneys or representatives to appear before the executive director at a
specified time and place for a conference prior to the hearing for the purpose
of:
(1) simplifying the issues;
(2) considering the making of admissions or
stipulations of fact or law;
(3)
reviewing the procedure governing the hearing;
(4) limiting the number of witnesses whose
testimony will be repetitious; and
(5) doing any act that may simplify the
proceedings, and disposing of the matters in controversy, including settling
all or part of the issues in dispute pursuant to §
213.20 and §
213.21 of this title (Informal
Proceedings and Agreed Disposition).
