| (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).
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| Source Note: The provisions of this §213.20 adopted to be effective August 15, 2002, 27 TexReg 7170; amended to be effective October 10, 2007, 32 TexReg 7058; amended to be effective November 15, 2009, 34 TexReg 7812; amended to be effective February 16, 2021, 46 TexReg 1058 |
