Our attorneys have represented nursing clients in cases involving many different types of complaints.
Being a nurse is stressful already. With rampant staffing shortages, the COVID-19 pandemic, and unit politics, a Board of Nursing complaint can interfere with your education and livelihood. BON investigations can be extremely lengthy and may put your nursing education and/or employment opportunities at risk. Even investigations that are unlikely to end with formal BON discipline can cause serious damage to your reputation and employability.
Given the significant time and expense involved in completing a nursing program and obtaining licensure as a nurse, it is risky to face the Texas Board of Nursing without a qualified advocate in your corner. The BON has a seemingly endless state budget with their own investigators and attorneys, who are generally not on the nurse’s side. Seeking the advice and possible representation of an attorney who understands the BON’s process and policies is crucial to achieving a favorable outcome.
Our attorneys at Lype, Dest & Smith Lawyers have defended hundreds of nurses in investigations and disciplinary actions before the BON. This experience covers a wide array of types of Board complaints both common and uncommon. We have represented clients at every possible stage of a BON case from initial investigations to informal conferences, trials, and appeals of Board Orders. This background means our attorneys do not need to spend hours researching the Nursing Practice Act or BON rules or procedure. Most importantly, our extensive experience has given us an understanding of the best way to represent clients in virtually any situation before the BON.
Our attorneys have represented nursing clients in cases involving many different types of complaints. Some of the most common types of BON complaints include alleged:
Board of Nursing complaints come from a variety of sources, the most common being nursing employers, nursing coworkers, patients and/or their families, and other state agencies.
When an employer suspends and/or terminates a nurse for engaging in “conduct subject to reporting” (defined below), that employer is required to report the nurse to the BON. This unfortunately means that a nurse who is fired must usually attempt to find a new job while also navigating a BON investigation. This can be a tricky time, with many nurses wondering: Am I allowed to still work? Will my new employer know about the investigation? What are the next steps?
“Your legal challenges deserve precise attention and dedicated advocacy. We’re committed to navigating the complexities of law, ensuring your rights are safeguarded and your objectives achieved. Trust our experienced team to stand by you every step of the way.”
Dan Lype
Founding Attorney
Once the BON receives a complaint, it is initially reviewed to determine if the complaint is within the BON’s jurisdiction and if the allegations, if proven, would constitute a violation of the Nursing Practice Act and/or Board rules. If the complaint meets these criteria, the case is assigned to an investigator who sends a letter to the nurse via first class and certified mail notifying them that the BON is investigating a complaint against them. The letter will contain a brief description of the allegations, as contained in the complaint, and request the nurse submit a written response with various information and/or documentation within 30 days. The complainant and actual complaint are always kept confidential.
The BON investigator will simultaneously send out a subpoena to the facility and/or other entities at issue for copies of the nurse’s personnel file, schedules and assignments, applicable patient records, and any other materials the BON deems relevant. The investigator will also send out requests for statements to any potential witnesses. The investigation letter does NOT advise the nurse that he or she has the right to review all of the materials obtained by the BON prior to submitting a written response to the allegations.
Once the BON’s evidence is compiled and the nurse submits a written response, the BON investigator will review everything to determine if the BON can prove a violation has occurred. If it is determined that there is either not enough evidence to prove a violation, or if a violation may have occurred but the BON decides it does not warrant disciplinary action, the investigator will send the nurse a letter stating that the investigation has been closed. If the BON believes a violation has occurred and that disciplinary action is warranted, the investigator will send out a settlement offer in the form of a proposed Agreed Order. The sanction level of the proposed Order can range from Remedial Education (lowest) to Voluntary Surrender (highest). The terms of the Order, which depend on the sanction level, can include remedial education courses, employer notification and monitoring, supervised practice, restricted practice, drug testing, among other stipulations.
If the nurse does not agree with the proposed Order, the case can progress via either informal or formal proceedings. Informal proceedings can consist of written counteroffers to the BON and/or an informal settlement conference (ISC). If the case proceeds to an ISC, the nurse and their attorney will appear before a BON panel to discuss their case, answer questions, and try to reach an agreed resolution. Informal conferences are confidential, and since the COVID-19 pandemic have been held by telephone or videoconference. ISCs are conducted by the Executive Director or his/her designee and are attended by a BON panel consisting of the investigator assigned to the case, the Director or Enforcement, a BON attorney, and a nursing consultant. At the close of the ISC, the panel can move to dismiss the case or recommend that it be resolved through either the existing or an amended proposed Agreed Order.
If the ISC does not lead to a dismissal or settlement, the case will move to formal resolution proceedings. A BON attorney will file Formal Charges and the case will be set for either mediation or a contested case hearing on the merits (trial) at the State Office of Administrative Hearings (SOAH). SOAH is a separate state agency responsible for conducting mediations and trials between Texas licensing agencies and their licensees. If the parties agree to mediation, this may be attempted prior to a trial. At mediation, the nurse and his/her attorney meet with the BON attorney and nurse consultant to attempt to reach an agreed resolution with the assistance of an administrative law judge (ALJ) mediator. If the parties are unable to settle the case via mediation, it will be set for a trial. A contested case hearing is a non-jury, bench trial before an ALJ. If mediation was attempted prior to trial, the ALJ presiding over the trial will be different than the one assigned as mediator. Witnesses may be called to provide sworn testimony and evidence will be admitted by the judge. The BON is represented by their own attorney who has extensive experience litigating these types of cases.
After a trial and the close of evidence, the ALJ will issue a detailed recommendation known as a Proposal for Decision (PFD). The PFD overviews and analyzes the evidence and includes factual and legal findings established at trial. The PDF also includes whether the BON has met their burden to prove one or more violations by the nurse. If the ALJ decides the BON has failed to prove a violation, the PFD will recommend the case be dismissed. If the ALJ decides the BON has established at least one violation, he or she will recommend the BON issue a disciplinary sanction level and requirements of a disciplinary Order.
The BON will then consider the PFD at a full Board meeting. The BON has the authority to accept the PFD’s recommendation as-is or, in some cases, may disagree with the ALJ’s legal conclusions or recommended sanction and propose their own amended Order. At the Board meeting, the BON will enter a final Board Order resolving the case. Once entered, the nurse may appeal the final Order by filing a petition for judicial review with the Travis County District Court within a very rigid timeframe.
If you find yourself the subject of a BON investigation, request for a psychological evaluation, or proposed Agreed Order, please contact us.
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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Client was the primary nurse for a medically complex patient who coded while under his care and subsequently expired several days later. After responding to the nursing Board’s allegations that the client failed to properly assess and intervene, the Board proposed a two-year Agreed Order of probated suspension. After careful preparation and extensive review of the relevant materials (which included witness affidavits, communication logs, medical records, and cardiac rhythm strips, among other things), the firm prepared for and attended an Informal Settlement Conference (ISC) with the client where they presented a solid case that the client had appropriately assessed and intervened on behalf of this particular patient, and that her eventual unfortunate demise was the result of factors beyond the client’s control. The BON panel decided to close their investigation without any disciplinary action.
Experienced nurse working in a nursing home was accused of pushing a patient against the wall. Since the patient suffered from dementia, the primary accuser was another healthcare worker who claimed to have witnessed the incident. The client claimed the patient was a known abuser and the patient fell back against the wall when the nurse put her arms up to prevent him from assaulting her. The nurse’s case was set for hearing at the State Office of Administrative Hearings. Case was dismissed on the eve of trial after our investigation showed the alleged witness was not telling the truth.
Nurse was terminated by their employer after being accused of administering 40 meq of IV Potassium on an order calling for only 20 meq. Client was also accused of violating the standard of care by using a Dial-Flow instead of a continuous infusion pump. We presented evidence establishing that client infused 20 meq as ordered and that Dial-Flow tubing was used due to unreliability of facility’s infusion pump. The Board of Nursing dismissed the client’s case.
Nurse practitioner working in a mental health setting had engaged in an intimate relationship with a patient. Defense focused on accepting responsibility while also contextualizing relationship within client’s larger career as a nurse and showing extenuating circumstances that contributed to client’s lapse in judgment. Board agreed to resolve the case through a probationary order that allowed client to continue practicing as a nurse practitioner.
Nurse practitioner was convicted of the felony offense of Acquiring a Controlled Substance by Fraud related to their practice in an alleged pill mill. After the presentation of remedial evidence including the client’s cooperation with the prosecutor in their criminal case, the Board of Nursing agreed to a probationary order that allowed the client to continue working as a nurse practitioner.
Client was terminated from her job for diverting narcotics for personal use and reported to the BON. The firm counseled the client through the process of entering and completing a rehabilitation intensive outpatient program (IOP) and secured a confidential TPAPN referral for the client without any lapse in her clearance to work or restrictions on her license (TPAPN typically prohibits nurses from working until they receive a “return to work” authorization from their mental health provider, which can sometimes take up to 90 days).
Client was arrested for assault-family violence and interfering with an emergency call after drunkenly assaulting her spouse and throwing his cell phone against a wall when he tried to call 911. She retained the firm for assistance with her RN renewal in disclosing the arrest and deferred adjudication to the nursing Board. The firm was able to obtain an early expunction of the arrest and court records, severely limiting the required disclosures to the BON and precluding any potential referral of the nurse to the Texas Peer Assistance Program for Nurses (TPAPN).
Client engaged in a romantic relationship with an inmate patient. Although the two ultimately were married upon the patient’s release, the BON sought to revoke the nurse’s license. The nurse retained the firm upon the BON filing Formal Charges and the firm successfully negotiated a 2-year probation of the nurse’s license at a SOAH mediation.
Client was investigated by the BON for separate incidents of alleged impairment and failing to properly monitor and/or document events while patient was under anesthesia during a surgical procedure. Client hired the firm, who thoroughly reviewed the relevant materials and engaged a forensic toxicologist to refute the BON’s primary evidence. Instead of the Board’s proposed public TPAPN Order, the firm was able to secure the client’s confidential TPAPN participation limited to three years (instead of the five years usually required for APRNs). Client was able to continue working as a CRNA without TPAPN’s normal 1-year prohibition of access to controlled medications and client’s TPAPN participation was unable to be presented as adverse evidence in an associated civil medical malpractice proceeding.
If you are being investigated by the Texas Board of Nursing, contact the attorneys at Lype, Dest & Smith for a consultation. Fighting the Board alone is unwise and often leads to a bad result. Early intervention by an experienced attorney can make all the different in the outcome of your case.
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A thorough and experienced lawyer. We are grateful to have Dan and his staff helped us with our case, dealing with Texas Medical Board. Dan is honest, experienced and very thorough. He was supportive throughout the proceedings. His caring and calm nature has made us feel at ease during the whole process. His office staff was professional and responsive. Dan responded to our phone calls and emails promptly. We wholeheartedly recommend Dan and his firm without any reservation.
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“ Wonderful Administrative Lawyer. Mr. Lype represented me at a hearing before the Texas Board of Law Examiners. After substantial preparation, I was well prepared for the hearing. Dan has relationships with the staff members and was able to help me understand exactly what to expect. With Dan’s assistance I was ab...”
“ Great Attorneys in Texas. This attorney is very diligent ,calm ,professional who will listen to you and very aggressive in his pursuit for justice for his clients.His main goal is exoneration for which he effortfully seeks.Plea deal would be his lost resort. Recently successfully represented me before the Texas Me...”
“ Worth every penny. Mr Lype is a bulldog when it comes to defending his client. He is diligent, agreesive and great listener. He provides timely updates on your case. Mr Lype is very verse in the healthcare laws of Texas and is worth having on your team. I would use him every time. ”
“ Highly recommend. I had pretty serious allegations resulting in an investigation. Dan helped guide me perfectly And gave me reassurance that I really needed.. He knew exactly how much information to provide at each step along the way. During my hearing, he pleaded my case very effectively. Due to his expertise, my...”
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