The State Office of Administrative Hearings ["SOAH"] is where contested cases are tried between a nurse and the Texas Board of Nursing. An administrative law judge (ALJ) is assigned to the case and the proceeding is like a judge-alone trial without a jury. Witnesses are called to testify, records are put into evidence, and legal argument entertained. A transcript or recording is made. After the hearing, the ALJ may take weeks or months to issue a Proposal for Decision (PFD) analyzing the evidence and recommending a decision to the Board. The nurse’s attorney and the agency staff attorney exchange exceptions and replies about the PFD – essentially objections and argument either for or against the PFD. The PFD is then presented to either the full Board or the Board’s Eligibility and Disciplinary Committee for approval. If presented to the full Board, they will hold a hearing on the PFD in which the ALJ presents the PFD and counsel for both sides argue their positions. The Board may ask questions, review the pleadings and the record, and deliberate at length. When all is said and done, the Board either votes to adopt the PFD, adopt something different than the PFD, or dismiss the case even if the PFD recommends action. (this is taken from information contained on my firm's website )
Very few nurses ever have to go to SOAH, which is good news considering the potential pitfalls discussed above and in an earlier blog. An experienced attorney can negotiate a resolution with the BON that addresses the Board's concerns for public safety and that is acceptable to the nurse. SOAH should be reserved for those times where a satisfactory resolution cannot be reached with the Board by way of negotiation.
Nurses need to beware of attorneys that use SOAH as a means to churn fees by creating unnecessary litigation. When I worked for the Medical Board, we were well aware that certain attorneys when hired would never negotiate and the case would end up in litigation at SOAH. To us it always seemed like such a shame that a licensee would be subjected to the stress and expense of a hearing when the Board was willing to negotiate. By failing to negotiate, the licensee is subject to a drawn out process that may generate unnecessary fees and expenses and the licensee potentially risks receiving more severe restrictions. Hearings should be reserved for those special cases where negotiation fails to reach a fair conclusion to the claim.