Legislature, Are You Listening?

The next session of the Texas Legislature is quickly approaching and movements are underway to decide what issues should be addressed by new statutes/laws. I have been asked what issues for nurses and the Nursing Board need to be addressed and changed:

1. The State Office of Administrative Hearings [SOAH] should make the final decision in a contested case hearing. Currently if a nurse chooses to go to a hearing before a SOAH Judge to resolve pending allegations the Judge is only allowed to issue a Proposal for a Decision and not a final decision. This means that the Judge’s decision is presented to the Nursing Board and the Board can decide whether to accept all or part or none of the Judge’s recommendations. Thus, after spending a great deal of time and money litigating the case, a nurse could receive a dismissal form the Judge only to have the Board reject that recommendation. The better resolution, and the more fair, would be to have the SOAH Judge be the final decision maker and if either side disagreed with the ruling, they can appeal to the District Court.

2. Deferred Adjudications should not be considered convictions. Frequently, individuals agree to deferred adjudications because they do not have the resources to fight the criminal charge or they are advised that due to external factors a jury/judge may convict them even though they are innocent or harsher sentences might be imposed then what was necessarily warranted. Some nurses are even told that the deferred adjudication will be removed from their record once probation is completed (NOT TRUE!!) or that the Board will not take action on a Deferred Adjudication (once again, NOT TRUE!!!)

Under the Board’s current rules a deferred adjudication subjects a nurse to the same punishment as a conviction. The nurse can attempt to explain the factors surrounding the decision to accept deferred adjudication, but if the Board decides against them, there is little recourse because of the statute. The Legislature should look at this part of the Nurse Practice Act again and consider the unfair impact it has and that it goes against the initial rationale for development of deferred adjudication provisions.