The Texas Board of Nursing and the Changing Landscape of its Disciplinary Process
I have been representing nurses in disciplinary cases before the Texas Board of Nursing for over ten years. My five lawyer law firm has assisted approximately 1000 nurses in a variety of legal and nursing license matters with the Board. This includes RN’s, LVN’s and advance practice nurses such as family nurse practitioners and CRNA’s. During this time the Board’s Staff attorneys have grown in number from 2 to 6. The Board’s general counsel (Dusty Johnston) has been a constant as has the director of enforcement and the Executive Director –Katherine Thomas. The Staff has grown in number as well with additions made in investigations, enforcement and licensing.
Five years ago the Nursing Board’s case log was backed up and a nurse undergoing an investigation could expect the case to drag on for three to five years. A competent attorney who was familiar with the Board’s processes could expect an informal conference to be afforded to their Client. At this conference reasonable efforts to talk, settle or have the case dismissed would occur before Formal Charges were filed and the matter was set by the nursing board’s lawyers for a contested case hearing at the State Office of Administrative Hearings –SOAH.
Today the Texas Board of Nursing, the enforcement division and its six lawyer Staff have a much different approach. The disciplinary case comes through investigations where it is worked up by an investigator and reviewed by a supervising investigator / team leader. While the team considers material filed by the nurse and their attorney, if there is reason to believe the nurse has violated the Nursing Practice Act the nurse is sent a proposed agreed order for their review. At this juncture one can ask for an informal conference but unless the case is practice related and the evidence is tenuous the request for an informal is unlikely to be granted. Instead, the Respondent Nurse can either accept the offer or the case will move on to SOAH for the next phase of litigation. This is an emotional and difficult decision for any nurse and their attorney.
If the proposed Agreed Order is rejected formal charges are filed internally with the Board and posted on the Texas Board of Nursing’s website for public viewing. Employers often balk at nurses who have formal charges filed against them and many are fired as a result even though they are just defending themselves and their license. Although the nursing license is now tagged or marked the nurse has no ability to defend their license through discovery until the Board’s attorneys docket the matter at SOAH and formal discovery begins. This is tacitly unfair but unless the nurse through her attorney requests the matter be expeditiously docketed they just remain in limbo with a mark across their license and name.
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Criminal Prosecution of Pain Management Physicians by State and Federal Law Enforcement is on the Rise
There has been a recent and rapid rise in the number of physicians being prosecuted for the alleged non-therapeutic prescribing of controlled substances under both state and federal law. In the last week alone I have received numerous phone calls from a variety of medical and osteopathic doctors who had been arrested and/or indicted by the federal government or a local law enforcement branch after a joint investigation by a task force of state and federal agencies such as the Texas Medical Board (TMB), Drug Enforcement Administration (DEA), a local sheriff’s and/or police office and the State Board of Pharmacy. These individuals are being charged by prosecuting attorneys in United States District Court (Federal Court) with crimes under the Federal Controlled Substances Act or in State Court for violations of the Health and Safety Code and the Medical Practice Act. In most cases the basic charge is the delivery of a prescription (to a patient and within the context of the physician’s medical practice) for a controlled substance without a valid therapeutic purpose. Many of the physicians I spoke with questioned why and how the government can substitute its’ clinical judgment for the physicians. Essentially this amounts to a physician being prosecuted and jailed for a standard of care based decision that was once a purely civil or administrative inquiry. My law practice has been handling these cases for years and over the last year the number of inquiries to our attorneys has increased tenfold suggesting the marked rise in government prosecutions is very real.
Oftentimes the Government relies on the sheer number of prescriptions written or the types / combinations of medications prescribed to make its’ case. It then utilizes experts to opine that a reasonable physician would not prescribe this combination of medications to this many patients and thus the treatment of patient X was non-therapeutic. This is a questionable way to go about proving a case, but it does not stop the Government from doing its investigation, arresting the doctor, forcing the surrender of their DEA issued controlled substances registration, initiating the inevitable discipline and loss of the physician’s medical license and the consequent destruction of their medical practice pending prosecution(s). While violations of the administrative rules surrounding the handling and use of prescriptive authority carry civil and administrative monetary provisions, violations of a state or federal statute mean confinement upon conviction and the inevitable loss of the physician’s career in medicine. For many physicians the result has been the very conservative treatment of patients and arguably the under treatment of both acute and chronic pain. I have thankfully yet to see the government pursue a case that involved palliative care.
Continue Reading...The Texas Medical Board's Remedial Plan -is it really a non-disciplinary order?
The Texas Medical Board has a new method of resolving outstanding investigations, courtesy of the 2011 legislative session- the Remedial Plan. If you are a physician with an investigation pending before the Medical Board, you may very well encounter the Remedial Plan. They are being offered frequently. In some cases that will be good news , but contrary to how Board staff may sell it, the Remedial Plan is not suited for everyone.
Let me give an overview of the Remedial Plan. The Board terms the Remedial Plan as a non-disciplinary order. It cannot be offered in instances where the complaint concerns a patient death, commission of a felony, or an instance where a physician becomes sexually, financially, or personally involved with a patient in an inappropriate manner. The Remedial Plan also cannot assess an administrative penalty, or revoke, suspend, limit or restrict a person’s license. Typically the Remedial Plans include continuing education and/or the requirement to take the Jurisprudence Exam. They also could include non-restrictive terms like a physician chart monitor, and they virtually always carry a $500 administration fee.
Despite the limitations on when a Remedial Plan can be offered, there are still many circumstances that qualify, and this is borne out in how frequently Board disciplinary panels are offering them. They are being offered before Informal Settlement Conferences (ISC) in an attempt to forgo the need to hold a hearing. They are also being offered at ISC’s in lieu of other discipline. This all sounds like good news. It is a “non-disciplinary” order after all. However, one corresponding trend that does concern me, as an attorney that is now encountering these Remedial Plans quite frequently, is that Panels are offering Remedial Plans in circumstances where they otherwise would have dismissed the case entirely. The Board Panels feel too comfortable offering the Remedial Plan because it is “non-disciplinary.” It seems the Board Panel can justify offering a Remedial Plan in instances where they could not otherwise justify disciplinary action.
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Texas Pharmacy Board Update: Crackdown on Houston Independent Pharmacies Continues
Several months ago I began a series of posts focused on the combined State and Federal taskforce sweeping the Houston metropolitan area targeting physicians and pharmacists viewed as engaged in the non-therapeutic prescribing and dispensing of narcotics, particularly for the treatment of pain. This process continues to develop and generate new sets of licensees' criminally indicted and/or scheduled for temporary suspension hearings before their respective licensing boards.
With respect to the Texas State Board of Pharmacy, the TSBP has been setting an average of at least two pharmacies, along with the employed pharmacists, every month for temporary suspension hearings. A temporary suspension hearing is an extraordinary remedy designed to immediately remove from operation a pharmacy or pharmacist whose continued practice represents an ongoing threat to the public welfare. A temporary suspension bypasses the normal disciplinary procedure by allowing the Pharmacy Board to immediately remove a licensee from practice pending a final resolution by the Board.
Such hearings can be held with little or no notice to the licensee and are decided by a three-member panel of the Board rather than an independent administrative law judge. For a number of reasons, these hearings are almost always difficult for the licensee. As the Board panel is generally comprised of lay persons without a legal background, the rules of evidence are usually only loosely followed if at all. The short notice given to the pharmacist or pharmacy, oftentimes less than two weeks, permits little preparation time especially given it typically takes the licensee a few days even to locate an attorney. Most importantly, as the panel is comprised of Board members, the hearing's decision-makers are usually very sympathetic and receptive to the arguments and evidence presented by Board Staff. A licensee often, and not without good reason, has the impression that the deck has been stacked against them.
If the Board panel does vote to temporarily suspend the licensee's certificate, the only recourse is to appeal this order to District Court in Travis County. This is also an expensive and time-consuming process and the review provided is limited to determining whether or not the agency abused its discretion, not a full re-weighing of the merits. Moreover, in the interim, the pharmacist and/or pharmacy remains suspended.
My office recently represented two pharmacists, and their respective pharmacies, at a temporary suspension hearing before the Pharmacy Board. The allegations were that the pharmacist had over a period of time dispensed thousands of units of hydrocodone, alprazolam, and carisprodal which they know or should have known were non-therapeutic. The evidence presented by Board Staff at the temporary suspension hearing primarily consisted of a patient list of what they considered the thirty "top-offenders." Notably, the Board investigator, who has no medical background, had never even reviewed these individuals' medical records prior to reaching this conclusion. My firm was able to present evidence and testimony that every one of these patients was receiving appropriate care for their illnesses which for most involved a large array of comorbities. In fact, one of the alleged "top-offenders" was the pharmacist's own elderly mother who was receiving appropriate care from several specialists.
My firm was also able to present evidence that virtually every one of these patients had filled scripts at several other pharmacies, including big chains such as Walgreens, CVS, Wal-Mart, and HEB. Not surprisingly not one of the corporate pharmacies had been prosecuted or disciplined by the Texas Pharmacy Board for filling the exact same prescriptions for the same patients.
Currently, there is no sign that the Pharmacy Board intends to slow down its prosecution of independent Houston pharmacies for the non-therapeutic dispensing of pain medications. Unfortunately, oftentimes the Pharmacy Board appears to schedule licensees for temporary suspension hearing with little to no investigation as to whether they are actually inappropriately dispensing prescriptions, a trend which I believe the case discussed above amply illustrates. A temporary suspension hearing can be completely devastating to an independent pharmacist and make the difference between continuing as an ongoing concern and going out of business even if the licensee is later vindicated. Any Texas pharmacist or pharmacy who receives notice of a temporary suspension hearing should immediately contact an attorney familiar with the Texas Pharmacy Board and its processes.
The Texas Medical Board: Statutory Reforms to the Disciplinary Process
The 2011 regular Legislative Session resulted in a moderate reform of the Texas Medical Board’s disciplinary process. The Governor signed House Bill 680 into law on June 17, 2011. The modest reform measures that were ultimately included in HB 680 are not likely to satisfy the longtime proponents of Medical Board reform. A number of the more significant reform measures, like granting a jury trial for revoked physicians, and eliminating the confidentiality of complainants, were left on the cutting room floor. Below is a rundown of the legislative changes that were signed into law.
First, TMB can no longer consider a complaint that is based on care that was provided more than seven years prior to receipt of the complaint by the TMB. Like any statute of limitations, the seeming purpose behind this legislation would be to protect doctors from having to defend against stale complaints about care that was provided in the distant past. Memories fade. Records get shredded (they must be kept for a minimum of seven years according to TMB rules). This is a reasonable change and will decrease stale complaints, but complaints like this are not very common.
Second, TMB can no longer accept anonymous complaints. Some clarification is needed here. This is saying that the Texas Medical Board can no longer accept complaints in which the complainant’s identity is unknown to the TMB. The TMB can still keep the identities of complainants confidential from the physician, if the complainant so chooses. Like the first reform, this will not have a very far-reaching effect since this type of anonymous complaint makes up about 2% of all complaints. Should the complaint go to litigation the attorney representing the physician may be able to pierce the veil of anonymity if the case is to proceed to trial.
Third, a physician taking part in an Informal Settlement Conference (ISC) with the TMB may now request that the proceeding be recorded. The recording would remain part of the TMB’s investigatory file, and would thereby be confidential. Presumably this record of the meeting would act as a check on any inclination the Board might have towards bullying the physician or acting in some way that would seem to be an abuse of their power. The ISC is a legal proceeding in which a semblance of due process is afforded to the physician. At some point the recording may also be helpful should an Agreed Order be presented to the doctor that does not reflect what the panel recommended. Additionally, if the complainant waived their anonymity and made a statement to the ISC panel while being assisted by the Board’s Staff attorney this statement may become relevant if it is contradicted at a later point in the disciplinary process.
Fourth, TMB must inform the physician when a complaint is filed by an insurance or pharmaceutical company, and must disclose the name and address of the insurance company or pharmaceutical company to the physician upon receipt of the complaint.
Finally, after a contested case hearing at the State Office of Administrative Hearings (SOAH), TMB must issue a final Order that implements the Administrative Law Judge’s findings of fact and conclusion of law. The discretion remains with the TMB as to what the appropriate action or sanction should be if a violation is found.
Wave of Temporray Suspensions Target Houston Physicians and Pharmacists
Over the past several weeks there has been an onslaught of temporary suspensions by the Texas Medical Board and Texas State Board of Pharmacy targeting Houston area physicians and pharmacists. These emergency suspensions have all stemmed from the joint state and federal task force combing Harris County for the non-therapeutic prescribing and dispensing of medications commonly used to treat chronic pain: primarily hydrocodone, soma, xanax, and klonopin. Presently, there is no sign that this barrage of suspensions will let up.
Most of the physicians, pharmacists, and pharmacies which have been temporarily suspended seem to have been selected because they have already been arrested or otherwise targeted by the Harris County task force. Moreover, many of these individuals have appeared in local media coverage of the crackdown. Temporary suspensions by the Medical and Pharmacy Board only allow for short notice to the affected practitioner meaning the licensee has little chance to prepare their defense.
Moreover, it has been my firm's experience with such suspensions that the licensee faces an uphill battle as the deciding panel is made up of three Board members, not an independent judge unaffiliated with the prosecuting agency. Generally speaking, such Board panels accept Board Staff's claims and evidence at face value particularly when the practitioner has been arrested or the subject of media attention. The evidence presented in such hearings is usually the testimony of DEA agents or local law enforcement who have been involved in the case. Oftentimes, this involves testimony from an undercover officer who received pain medication from a physician after falsely telling the practitioner they suffer from chronic pain and undergoing an assessment in conformance with the Medical Board's rules on pain management. It is unclear how this constitutes non-therapeutic prescribing as the physician is essentially being lied to by the undercover agent. A Houston pharmacist was likewise recently suspended based merely on the number of pain prescriptions dispensed by their pharmacy as well as the accidental early filling of a single prescription presented by an undercover officer.
Again, the evidence presented is often flimsy at best and likely would not result in an emergency suspension were the matter before an independent administrative law judge. Simply because a licensee has been arrested does not mean the unproven charges will result in a criminal conviction. The unfortunate result of the current approach by the Medical and Pharmacy Board is the suspension of innocent pharmacists and physicians along with those knowingly engaged in the provision of illegitimate pain medication.
A temporary suspension will dramatically impact a practitioner's career and remain a part of their permanent licensure record. Additionally, if the licensee is a physician a report will be generated with the National Practitioner Data Bank and remain there indefinitely. Once a physician or pharmacist is temporarily suspended their only recourse to overturn the suspension is to appeal the case to District Court in Travis County, a process which is neither timely nor inexpensive.
Legally speaking, the temporary suspension of a physician's or pharmacist's license is meant to be an extraordinary remedy designed to immediately remove such individuals from practice due to an imminent danger to the public were they allowed to continue working. Regrettably, it appears as though many of the persons who have been temporarily suspended in the past few weeks have legitimate defenses to the charges levied by their respective Boards. Any physician or pharmacist who receives notice of a temporary suspension hearing should contact an attorney immediately as there will be little time to prepare and a negative result could cause irreparable harm to their career and reputation.
Texas Board of Nursing's Deferred Disciplinary Order
The Texas Board of Nursing has recently started offering a new type of agreed order which allows, with some significant reservations, nurses to avoid a permanent disciplinary mark on their record. Pursuant to the Legislature's mandate that the Board administer a pilot program to study the feasibility of deferred disciplinary actions, the BON has enacted rules governing this program and outlining what type of cases are eligible for the new deferred disciplinary order. For those interested, the enacting statute is located at Section 301.1607 of the Nursing Practice Act and the governing rule is found at Title 22, Section 213.34 of the Texas Administrative Code.
A nurse who receives a deferred disciplinary order can have the order and original complaint dismissed and removed from their licensure record with the Board of Nursing if they successfully complete the terms of the order and receive no further disciplinary actions within the next five years. At the end of the five year period the deferred order is effectively sealed and any record of its existence is removed from the Board's website. Additionally, this disciplinary action is then deemed confidential and is not subject to disclosure to either the public or a nurse's employer.
There are significant limitations to these confidentiality protections. First, prior to the five year mark, the deferred disciplinary order is completely public and will appear in both the Board's Newsletter and on the nurse's online licensure page. Second, as with any Board order, the BON is required to file a report with the Healthcare Integrity Protections Data Bank (HIPDB). As this is a creation of Congress, it is subject to federal law and does not recognize confidentiality protections created at the state level. This means that a record of the disciplinary action taken against the nurse will stay in HIPDB indefinitely and remain accessible to employers regardless of its erasure in Texas.
Eligibility for a deferred disciplinary order is restricted to those cases which can be resolved through either a Warning with Stipulations or less severe order. Matters normally disposed of through a Reprimand, Probated Suspension, Enforced Suspension, or Revocation are not eligible for a deferred disciplinary action. Furthermore cases involving criminal or sexual misconduct, chemical dependency or substance abuse, intentional acts, falsification, or deception are likewise not eligible for the pilot program. The program is designed to apply to nurses whose cases show a lack of situational awareness or a knowledge or practice deficit. Finally, nurses with a prior disciplinary history with the Board cannot receive a deferred disciplinary order.
Its limitations aside, the deferred discipline pilot program is a welcome development and should prove beneficial in resolving marginal cases involving minor violations of the Nursing Practice Act. A nurse with an active case before the Board of Nursing curious about whether they may be eligible for a deferred disciplinary order should contact an attorney experienced in administrative law and in representing clients before the BON.
The Texas Medical Board's New Fast-Track Process for Resolving Minor Cases
The Texas Medical Board receives about 6,000 complaints each year, and in an effort to resolve select “minor” violations of the Medical Practice Act (Act) more quickly, an administrative penalty order has been developed and put into use called the Fast-track Order (Fast-track).
Not every violation of the Act is eligible for a Fast-track. The Fast-track has been referred to as the speeding ticket of the Board’s disciplinary options. Its use is limited to a relatively small list of violations, including: failure to complete continuing medical education (CME) requirements; failure to change address with Board; and failure to provide copies of medical records in a timely manner upon request.
If Board staff determines that a licensee’s alleged violation is eligible for a Fast-track, they will send a brief notice of the allegations to the licensee with a synopsis of the allegations and the deadlines for response.
The licensee is given three choices:
- The first option is to plead no contest and pay the fine. Sometimes this can be an attractive outcome if the licensee inarguably violated the Act, and wants to save the time and money of even taking the case as far as an Informal Settlement Conference (ISC). A no-contest plea means that the Fast-track will be entered by the Board, and the licensee’s public profile will be updated to reflect the discipline. The order itself is a brief document, containing only a brief statement of the allegation, but its presence is a permanent mark on the licensee’s public profile.
- The second option the licensee is given is to respond in writing to the allegation. The licensee’s right to an ISC is thereby waived, and the written response is considered by the Board’s Disciplinary Process Review Committee (DPRC). DPRC will then either dismiss the case or impose the fast-track penalty without any further input from the licensee.
- The final option is to reject the fast-track order and proceed to an ISC, which is to say that the case would proceed through the regular disciplinary process. The licensee would be invited to attend an ISC and discuss the allegations with a Panel of Board representatives.
If the licensee chooses not to answer at all, the Board has the authority to impose the administrative penalty. This happens often if the Board does not have the licensee’s current contact information, and when the discrepancy is noticed by the licensee somewhere down the road, they find themselves mired in bureaucratic quicksand trying to straighten it out.
Ultimately, if you receive a Fast-Track, and you are faced with the prospect of choosing one of the above options, you should realize that each one of the above options has its variables to consider, whether it be the amount of time and money that will be spent, or the visibility of a given disciplinary outcome. If you have received a Fast-Track letter from the Board, it is in your best interests to consult with an attorney to best evaluate your options. The Leichter Law Firm has successfully defended many clients before the Board, and is mindful of the pitfalls of the Board’s disciplinary process. Do not hesitate to call us for a free consultation at (512) 495-9995.
Combined State and Federal Task Force Clamps Down on Alleged Pill-Mills in Houston
Over the last few years substantial momentum has been steadily building on both the administrative and criminal fronts against physicians whose practice primarily or substantially involves pain management and the pharmacists who file their prescriptions. In many instances, this governmental clamp down is fully justified as every pharmacist and physician familiar with this practice area is well aware of the significant problem associated with the non-therapeutic prescribing of powerful narcotics and other controlled substances. Tragically, many physicians and pharmacies who provide legitimate pain control have also been captured in this ever-widening net. The consequences can be severe and can include the loss, restriction, or temporary suspension of the individual/entity's state license, loss of a physician's DEA and DPS controlled substances registrations, substantial monetary fines, and even criminal prosecution.
As an attorney who has defended numerous physicians, pharmacists, and pharmacies in both state and federal administrative and criminal actions, it has been my impression that the pace of this clamp-down has only increased. I hope to write a series of articles detailing different aspects of non-therapeutic prescribing/dispensing cases and what practitioners and pharmacists can expect should they be unfortunate enough to be targeted under this or a related claim. This article will focus on the combined state-federal task force presently sweeping Texas to shut-down so-called "pill mills."
The Pill-Mill Taskforce:
The expression “pill-mill” is becoming an increasingly recognizable term to the general public due to investigative journalistic pieces done by national news outlets like 20/20 and CBS News. A true pill-mill is typically comprised of a network of dubious physicians and pharmacists that dole out controlled substance prescriptions to individuals, based not on medical necessity, but on their cash value on the street.
Along with growing media exposure came the realization by government regulators and law enforcement officials that much of the pill-mill activity in Texas is based in Harris County. In response, a taskforce of interested state and federal agencies and law enforcement entities was formed to combat non-therapeutic prescribing in the Houston area. The taskforce includes members of the federal Drug Enforcement Agency (DEA), the Texas Medical Board (TMB), the Texas State Board of Pharmacy (TSBP), and local law enforcement. The taskforce has been very aggressive in pursuing and sanctioning Houston pain management clinics and pharmacies. As discussed above, the consequences can be severe and extend all the way to convictions for serious felony offenses.
Targeted Physicians and Pharmacies:
The joint task force uses several different methods to select targeted practitioners and dispensing pharmacies. These include utilizing databanks maintained by the DEA to pull down the largest prescribers and dispensers of certain medications within a given county. The task force also refers to the list of pain clinics which were required to register with the Texas Medical Board following the last Legislative session. Other red flags include all-cash transactions, high numbers of daily patients, large or atypical numbers of narcotics and other targeted medications, frequent use of the pain cocktail of Soma, Xanax, and Hydrocodone.
Once targeted, a physician or pharmacy is immediately placed on the defensive as they face a coordinated assault by law enforcement officials, the DEA and DPS, as well as the applicable state licensing agencies. These investigations are accusatory in nature and generally proceed on the presumption that the individual/entity is engaged or participating in non-therapeutic prescribing. Oftentimes the first indication that an individual has been targeted will be an armed raid of the person's practice or pharmacy and the seizing of their prescription or dispensing records. The physician or pharmacist may be asked on the spot to sign a statement or affidavit connected with the allegations or asked by the DEA or DPS to surrender their controlled substances registration.
Again, it bears reminding that the sudden arrival of the task force may only be because the targeted entity showed up high on the DEA's records on the volume of narcotics prescribed/dispensed or some other such indication which, by itself, has little bearing on whether or not such prescriptions are for a legitimate therapeutic need. I have represented several physicians targeted by the task force despite their having in place rigorous safeguards and practices designed to ensure that all prescriptions are for legitimate medical conditions and taken only at a therapeutic dose.
This task force represents the leading edge of regulatory pushback at what has increasingly been identified as a widespread problem: physicians and pharmacies who fuel prescription drug abuse by persons who lack a legitimate medical need. The problem is that this combined dragnet continues to ensnare numerous physicians and pharmacists who provide genuine and legitimate pain relief to Texas patients.
Any physician or pharmacist contacted or raided by the joint task force or any of its individual members should seek legal representation immediately. If you are raided by the task force you should contact an attorney on the spot and refrain from giving any oral or written statement, signing any documents, surrendering your license or controlled substance registration, or acquiescing to any demand without first seeking legal counsel. The stakes are very high and a mistake could permanently prejudice your ability to defend yourself.
Anonymous Complaint Process at the Texas Medical Board
Discipline at the Texas Medical Board (Board) is a complaint driven process- meaning that every investigation opened by the Board’s investigators results from the filing of a complaint. The Board receives roughly 6,000 complaints each year, and they come from various sources, including patients, subsequent providers, competitors, former employees, and even the Board itself. Essentially, anyone can file a complaint with the Board, and the Board is required by law to investigate it.
According to Board rule 178.4(c), the complainant’s identity and the complaint itself are expressly confidential as part of the Board’s investigative file, unless the complainant signs a waiver of their confidentiality. A complaint can, therefore, be filed against a physician without the physician knowing the identity of the complainant.
The anonymous complaint process unfortunately makes it easy for a bad-faith complainant to use the Medical Board’s disciplinary process to attack other physicians whether they are rivals to the complainant's practice or have a former employment relationship. Both in my own practice and through discussions with other attorneys, I have encountered other instances where a complaint appears to have originated from an insurer seeking to use the Board as leverage in a payment or coverage dispute with a physician. I have personally been involved in cases where an anonymous complaint originated from a disgruntled spouse. In any case, the Board's anonymous complaint process generally immunizes the complainant from scrutiny or consequences should a complaint be filed in bad faith. Additionally, without their identity, the targeted physician is often precluded from presenting clear evidence of bad-faith or motive on the part of the complainant. Moreover, because anonymous complaints frequently originate from persons with a medical background who are also familiar, sometimes intimately so, with a licensee's practice, they can be crafted in such a way to cause significant damage to the target physician.
The political process has thus far provided no relief from the anonymous complaints process. Two bills have been introduced in the Legislature to change the complaint process and make it more transparent. The Bills, House Bill 3816 introduced and presented to the 81st Legislature and House Bill 1013 presented to the 82nd, would have made it impossible for the Board to accept anonymous complaints. The Bills would also have provided physicians better protection from Board claims of inadequate documentation and would prohibit Board discipline for incidents that occurred more than 7 years ago and for documentation errors that did not endanger the patient. To date, neither Bill has been passed, and so the concerns about anonymous Board complaints continue.
If you have received a complaint letter or investigation letter from the Board, it is in your best interests to consult with an attorney to best evaluate your options. This is all the more so if you believe the complaint may have been filed in bad-faith as it has been my experience that these often come in a series with each subsequent complaint becoming increasingly difficult to address.
