Texas Board of Nursing Complaints and Investigations

Complaint investigations conducted by the Texas Board of Nursing can last many months and usually involve several common procedural steps. Having an experienced attorney who is familiar with the BON’s processes is crucial to ensuring you know and understand your rights and options every step of the way and can also help ensure the best possible outcome.

While the Board of Nursing maintains that most complaint investigations take 5-12 months to resolve, this timeline can be unilaterally extended by the investigator and can sometimes last for multiple years. However, while pending, the investigation remains confidential (not public record) and does not restrict the nurse’s license or scope of nursing practice. The investigator will periodically notify both the complainant and the nurse under investigation of the case’s status and final outcome.

Initiation of the Investigation

When the Texas Board of Nursing receives a complaint, it is initially reviewed to make sure there is enough information to identify the nurse at issue and to determine whether the complaint is within the Board’s jurisdiction. For example, nursing care that takes place in another state or by a nurse who is not licensed in Texas may not be in the Texas BON’s jurisdiction. The identity of the complainant is always kept confidential.

Once these initial jurisdictional hurdles are cleared, the Nursing Board will notify the nurse under investigation about the complaint, usually via Certified and/or First-Class Mail (see our Anatomy of a BON Investigation Letter blog post for a breakdown of the individual components). The BON will also send out subpoenas to gather the relevant evidence, including personnel files, patient medical records, policies and procedures, witness statements, and other records as applicable.

The letter will advise the nurse that he or she has the opportunity to respond to the allegations, and it is wise to hire an attorney at this stage.

The investigator will review the investigative materials and any response from the nurse to determine whether there is evidence to support a violation by the nurse. If the evidence is insufficient, the Board of Nursing will close the case. However, if the BON investigator believes that a violation exists and some form of discipline and/or monitoring is required to protect the public, the investigator will send the nurse a settlement offer in the form of a proposed Agreed Order. The proposed Order will contain the Board’s investigative findings, a sanction level, and various requirements that the nurse must abide by while the Order is in effect. The proposed Order is not effective until and unless the nurse signs and notarizes the document indicating acceptance, and the Board members ratify the Order at a Board meeting.

Nursing Board sanction levels are, in order from lowest to highest: remedial education, warning, reprimand, probated suspension, enforced suspension, and revocation. Except in limited circumstances Agreed Orders are public information and will remain a part of the nurse’s licensure history forever. Additionally, all disciplinary actions appear in the BON’s quarterly newsletter. As required by law, they are also reported to the National Council of State Boards of Nursing (NCSBN) which operates nursys.com and the National Practitioner Data Bank (NPDB).

Order requirements can include a combination of the following stipulations: 

• Remedial education courses
• Fine
• Supervised practice
• Practice restrictions
• Quarterly employer performance evaluations
• Drug testing
• Support group meetings
• Criminal probation reports
• Mental health reports
• Participation in TPAPN

If the nurse accepts the proposed Order, it will be scheduled for review at the next Board meeting to be ratified. If the nurse does not wish to accept the proposed Order, the BON’s “informal” settlement process begins. 

Informal Settlement Process

The Nursing Board and the nurse may negotiate the Agreed Order in writing and/or in person. The BON periodically have Informal Settlement Conferences (“ISCs”) where the Executive Director (or her designee), the Director of Enforcement, a BON attorney, and the investigator will meet with the nurse to discuss the conduct and evidence at issue and try to negotiate an agreeable settlement. After this dialogue, the Board of Nursing staff will meet privately to determine whether to make any changes to the proposed Agreed Order. At the end of the ISC, the panel generally notifies the nurse of any recommended changes and mails out a new proposed Agreed Order. The BON has complete discretion in granting requests for ISCs, so not every nurse under investigation will have the opportunity to participate in one. Even in cases where an ISC is not granted, the nurse has the opportunity to respond to, and negotiate, the proposed Order through written correspondence.  

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Formal Settlement Process

If the Nursing Board and the nurse are unable to reach an agreement informally, the BON will file Formal Charges. The Formal Charges will outline the violations the BON believes the nurse has committed, along with the associated statutes and rules. The Formal Charges require the nurse to file a written response within a statutorily defined period. While the Formal Charges themselves will not be made public, the fact that Formal Charges have been filed will be reflected on the nurse’s online public licensure verification. Once the case resolves, the Formal Charges notation will be removed from the nurse’s license and replaced with any resulting Order. While the Board can file Formal Charges at any time during an investigation, they are more likely to do so the longer settlement negotiations go on.

Once Formal Charges are filed and the nurse submits a written answer, settlement negotiations generally continue while the parties schedule a formal disciplinary hearing at the State Office of Administrative Hearings (“SOAH”) before an Administrative Law Judge (“ALJ”). These formal hearings are essentially trials, where both sides present evidence and witness testimony. At the conclusion of the hearing, the parties will either give oral closing arguments or submit written closing briefs. Afterward, the ALJ will review the evidence and submit a Proposal for Decision (“PFD”) containing their findings of fact, conclusions of law, and recommended Board action. If either party believes the PFD contains inaccuracies or misapplications of law, they can file exceptions to the PFD within a certain period of time. Once any exceptions are reviewed, the ALJ will issue a letter either denying any changes to the PFD or listing the amendments made. The PFD will then be presented at a Board meeting for the Board members to review and act on. If the ALJ makes findings of one or more violations of the Nursing Practice Act and/or Board rules, they will make recommendations as to the appropriate sanctions, but the ultimate decision on disciplinary action rests with the Board of Nursing.

The Texas Board of Nursing is not required to lay out all of your options to you, so having an attorney well-versed with the process is an important part of successfully navigating a BON case. The lawyers at Lype, Dest & Smith have a combined decades’ worth of experience in dealing with the BON at every step in the process. You can learn more about our experience defending clients before the Texas Board of Nursing by clicking here. If you’re the subject of a Nursing Board investigation, we would love to help you through it.

Betty Smith

Ms. Smith’s practice focuses on administrative and health care law with a primary emphasis on professional license defense. She has represented numerous clients before various state agencies including the Texas Board of Nursing, Texas Medical Board, Texas Department of Licensing and Regulation, and the Texas Real Estate Commission.

Years of experience: 7 years
Bar number: 24102510 (TX) & 36027 (LA)
Location: Austin, TX
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Dan Lype

Not afraid to go to court when necessary, Dan has successfully litigated cases all the way to the Supreme Court of Texas. Dan also prides himself on being readily available to clients throughout their cases. He strongly believes effective representation should be a collaborative effort between a client and their attorney.

Years of experience: 15 years
Justia Profile: Dan Lype
Bar number: 24065658
Location: Austin, TX