How to do a Nursing Board Appeal. In Missouri, the State Board of Nursing holds hearings every 3 months. The Decisions and discipline are mailed to the nurse. The Decision states you have 30 days to file an appeal in circuit court. This is the first time a Judge will review your case. Not a commissioner, hearing officer, or Board.
Where do I appeal?
You have 2 choices: First, the Missouri county of your residence. For travelers, this is not an option. Second, Cole County Circuit Court. That is the county where Jefferson City, the capitol, is located, as well as the Board. So, how do you choose? I favor Cole County because those judges hear many appeals. Not just nurses, but every licensed profession in the state. However, when I file your appeal in Cole County, some judges will require me to travel there. I charge for travel time, so the client must decide if this is a good business decision. I’m located in St. Louis County, so there is less travel time in eastern Missouri.
Petition For Review (PFR)
Missouri law allows for the licensee to file a Petition For Review of the Board decision. That is the name of the lawsuit I file for your “appeal”. What is a PFR? We ask the judge to “review” the decision and Order of the Board of Nursing. What is reviewed? The evidence from the Board hearing only. There is no new testimony. (There is a narrow exception for new evidence, at the discretion of the court.) Why is this significant? If you did not appear for your Board hearing, you will not have the opportunity to testify in court. Likewise, if you did not submit documents at the hearing, you may not submit them for the first time at a PFR. See my Blog on Board Disciplinary Hearings. https://libermanlawfirm.com/you-received-a-notice-of-nursing-board-hearing-this-is-what-to-expect/
How is this an appeal if there is no court trial?
The Petition For Review is just that, a review of the Board hearing. We are the “Petitioner”, and the Board is the “Respondent”. Here is the procedure in Court:
- We request the Board to file its evidence with the Court. That is what we call the “legal file”. The legal file has 2 components: The documents, and a transcript of the hearing. You will recall there was a court reporter at the Board hearing typing down the questions and answers. The reporter types it up into a transcript.
- Usually 60 days after the legal file is submitted, we, the Petitioner, file a Brief. In our brief, I will review the legal file and point out each page and line number which supports our side.
- 30 days after our brief, Respondent files its brief.
- 15 days after that, I will file our Reply brief.
- The judge will set a date and time for oral argument for attorneys.
- The court issues its Judgment and Order.
What do we have to prove for a successful appeal?
536.140 Revised Mo Statute lists 7 ways to win a PFR (https://revisor.mo.gov/main/OneSection.aspx?section=536.140&bid=57191) We have to prove the Board’s Decision was any of the following:
(1) Is in violation of constitutional provisions; (2) Is in excess of the statutory authority or jurisdiction of the agency; (3) Is unsupported by competent and substantial evidence upon the whole record; (4) Is, for any other reason, unauthorized by law; (5) Is made upon unlawful procedure or without a fair trial; (6) Is arbitrary, capricious or unreasonable; (7) Involves an abuse of discretion.
These are difficult, particularly because the law gives our Boards great discretion in disciplinary actions. Sometimes we ask the judge to throw out the Board’s discipline. Other times we ask that it be reduced. These are not easy cases, I would say below 50% chance of winning. However, if you don’t appeal, you have zero chance.
Restraining Order May Keep You Working
When filing the PFR, I will also ask the Judge for a Temporary Restraining Order to keep the Board discipline from going into effect during our appeal. I have good success, depending on what the violation is. This alone may be a reason for appeal, keeping you in your job and employable during the appeal.
