A foreign physician coming to this country to pursue his residency is often faced with two visa options. He is typically required to choose either a J-1 visa or an H1-B visa. Both of these visas are "non-immigrant" visas, which do not entitle the visa holder to any permanent status in the US. For most foreign medical graduates, however, the H-1B visa is a better choice for physicians wishing to remain in the US after the completion of their residencies.
From 1976 through 1990 physicians coming to the United States to provide direct patient care, including those coming to the US to do their residencies, could only come on J visas. While easy to obtain, J visas were particularly hard on physicians because of the 2-year foreign residence requirement - After finishing their residencies, doctors were required to return to their country of nationality or last residence for 2 years. In 1990, Congress changed the law and allowed foreign physicians, including those coming to do their residencies, to petition for H-1B visas.
Many residency programs prefer doctors to come on a J-1 visa because of their familiarity with this process and the fewer formalities associated with it. For instance, programs offering J-1 visas do not have to file a Labor Condition Application (LCA) with the Secretary of Labor. The LCA requires programs offering H-1B visas to make certain attestations, such as guaranteeing equal pay with similarly qualified US doctors; a violation of the LCA can leave the program exposed to fines and restrictions on employing foreign workers.
Many foreign medical graduates (FMGs) also prefer coming on a J-1 visa because of the easier United States Medical Licensing Examination (USMLE) requirements. J-1 foreign medical graduates need only pass USMLE I & II whereas H-1B visa seekers must pass all three steps. Additionally, a J-1 visa typically lasts the duration of the training program, whereas H-1B visas only last three years with a one-time extension of another three years, though in certain circumstances multiple extensions may be allowed.
Requirements for Foreign Medical Graduates (i.e. foreign citizens who went to medical school outside the United States) to obtain an H-1B visa include:
- Completing Steps 1, 2 and 3 of the USMLE;
- Holding a license or other authorization to practice in the state of employment;
- Demonstrating English proficiency;
- Having an unrestricted license in a foreign state or documentation showing graduation from a foreign medical school.
Though seemingly less attractive than the J-1, the H-1B offers the huge benefit of allowing the foreign medical graduate the ability to apply for an immigrant visa (green card) and remain working in the country pending the determination of the application— once an employment-based immigrant visa petition has been filed, the H-1B can be renewed until such time the petition is decided on. The terms of the J-1 visa on the other hand requires the FMG to return to his country of residence for at least two years before returning to the US.
In some cases, the J-1 two-year residence abroad requirement can be waived, but only by accepting employment in healthcare professional shortage areas or medically underserved areas. The number of waivers are very limited if granted by a state agency - 30 per state per year, making the waiver a risky proposition. Additionally, such a J-1 waiver only allows the FMG to transition to the H-1B visa - not directly to a green card. As a result, the FMG's immigration process is further delayed. Even if the foreign medical graduate on a J-1 marries a US citizen, the physician must still fulfill the two-year residence abroad requirement or obtain a waiver.
Though some states, such as Texas and New York, enacted laws that neuter the H-1B's benefits, see here, the severe shortage of doctors has required those states to rethink their laws. In 2012 a federal appellate court struck down the New York law discriminating against foreign doctors. Moreover, in June 2013, Texas repealed its law requiring H1-B physicians to work in medically underserved areas such as their J-1 waiver counterparts. As a result of these new developments, the H-1B remains the best option for a physician to pursue residency and eventually obtain permanent status in the US.
The National Resident Matching Program (NRMP) is the non-profit, non-governmental organization that facilitates the annual “match” between medical students and residency programs. Created in 1952, it was implemented to make the process more streamlined, and initially to ease the competition between programs in filling available positions. While it has changed over the years, the NRMP employs a matching algorithm to match qualified students and programs together. Taking part in the match process requires both the program and the student to enter into a Match Participation Agreement with the NRMP that makes the NRMP’s match a binding commitment. Neither the program, nor the student, can unilaterally break the match, though either party can apply for a waiver of the binding commitment if either side can demonstrate serious or extreme hardship as a result of the match.
The Match Participation Agreement also designates conduct that constitutes a violation of the agreement, and for those violations, the NRMP can impose some very serious penalties. For example, any incident decided to be a violation by the NRMP will result in a Final Report detailing the participant’s transgressions, which is sent to the applicant’s medical school, the American Board of Medical Specialties, the residency program, the Federation of State Medical Boards, and others. Other possible penalties include being barred from participating in future NRMP Matches for up to three years, or being barred from accepting a position with any residency program that participates in the NRMP Match. For medical students, the Match is just about the only game in town, especially for M.D.’s, and a prohibition from participating in the Match, or from accepting positions in Match-associated programs, has the potential to throw a giant wrench into one’s medical career just as it is getting started.
The best way to avoid such consequences is to avoid violations of the Match Participation Agreement, which include: failure to provide complete, timely and accurate information during the match process; attempts to subvert the match process; failure to accept an appointment; and any other irregular behavior. The issues that we come across most frequently are an applicant’s alleged failure to provide complete, timely, and accurate information relating to disciplinary action that they faced at some point in their medical education. If a residency program makes a fuss about the completeness of an applicant’s disclosures, the NRMP can use their broadly worded Agreement to initiate an investigation. As we stated above, the consequences can be great, including banning an applicant from the Match for a term of years (or life), or decreeing that the applicant cannot take a position with a program that participates in the Match.If you are a physician Match-applicant who has run afoul of the NRMP, please consider hiring an experienced healthcare law attorney to assist you. The consequences of NRMP sanctions can be great, especially at this formative stage in your career. Contact the healthcare law attorneys at the Leichter Law Firm, PC, at (512) 495-9995.
Starting September 1st, 2013, the Texas Peer Assistance Program for Nurses (TPAPN) will significantly increase the length of their standard monitoring contracts. Previously an RN or LVN participant could expect to sign a two-year participation agreement while an Advanced Practice Nurse or CRNA would be asked to participate for three years. RN/LVN's and APN/CRNA's will now need to participate for three and five years, respectively. The new change applies to both nurses who enter TPAPN with or without an accompanying Board Order.
This policy change is probably meant to bring TPAPN more in line with the monitoring programs used by other Texas healthcare licensing agencies. For example, the Professional Recovery Network, which serves as the official peer assistance program for the Texas Pharmacy, Dental, and Veterinary Boards normally asks its participants to sign a five-year agreement. The Texas Physician Health Program also frequently makes use of a five-year agreement, although this can be much longer depending on the case.
While it is understandable why the Texas Board of Nursing would want to increase the standard timeframe for TPAPN participation, I have concerns as to how effective this change will be without corresponding reform of the TPAPN process. My firm has represented hundreds of nurses who have participated in TPAPN both with and without a corresponding Board Order. Many of these nurses have ended up in TPAPN even though they do not have a qualifying substance abuse, chemical dependency, or mental health issue. Usually this is due to the nurse believing they have no other option to retain their license and/or avoid action by the Board. This is oftentimes incorrect and our firm has helped numerous nurses achieve a better result.
This being said, for many nurses participation in TPAPN is a good option. TPAPN does provide a level of structure and direction which can be helpful to someone who is new to sobriety and just learning the tools necessary to remain abstinent. Ideally, this should be accompanied by a supportive and non-punitive atmosphere designed to assist this process. TPAPN's goal is, and should be, assisting nurses to become and stay sober while monitoring this process through objective indicators such as drug and alcohol screening and regular reports from employers and medical/mental health providers. Unfortunately, it has been my experience that many of TPAPN's rules and policies are counterproductive to these goals, lead to unnecessary referrals to the Board, and discourage potential participants from enrolling in the program.
Flaws with TPAPN include its policy of refusing to allow a participant to work until they have been cleared by an evaluator and passed a drug and alcohol screen. While sometimes this makes sense, oftentimes it does not as the nurse is already sober and may have been so for some time. This requirement frequently results in the nurse losing their job which significantly undermines their ability to successfully participate both from a sobriety, financial, and mental health standpoint.TPAPN also prohibits its participants from taking any medication that is potentially abusable even if it is medically indicated, validly prescribed, and completely unrelated to the reason for their participation. For example, a nurse who enrolls in TPAPN due to a history of alcohol abuse but who also has a longstanding and well documented chronic pain syndrome will be asked to discontinue all narcotics. A nurse may also be forced to discontinue psychiatric medications even though these are medically indicated and beneficial. This rule automatically disqualifies a whole range of potential participants who would otherwise be good candidates and can make compliance for existing participants extremely difficult. Continue Reading...
Possible Secondary Effects of a Temporary Suspension on a Physician's Medicare Billing Privileges and DEA Controlled Substances Registration
Given the Texas Medical Board's increasing use of temporary suspension hearings it would be helpful to understand what repercussions those hearings entail. As we shall see, a temporary suspension not only affects a physician's medical license it may also affect his Medicare billing privileges and DEA controlled substances registration. A temporary suspension hearing may have been preceded by a temporary suspension without notice. A temporary suspension without notice is essentially a shoot first ask questions later proceeding. The Texas Medical Board first suspends the MD or DO and then later schedules a hearing pending which the physician remains unable to practice. While we strongly recommend that physicians always have legal representation during temporary suspension proceedings, we believe even physicians who are currently temporarily suspended may benefit from legal representation to mitigate the secondary effects.
Consequences to a physician's Medicare billing privileges and DEA registration as a result of a without notice temporary suspension proceeding:
As a result of a temporary suspension hearing without notice, the physician's license will be suspended leaving the physician unable to practice medicine. However, this suspension will only be in effect until a temporary suspension with notice hearing. At this subsequent hearing a panel of the Texas Medical Board may vote to reinstate the physician's license finding that the evidence is not sufficient to continue the suspension. In the meanwhile, however, the practitioner may still lose his Medicare billing privileges or DEA registration because of the suspension.
A provider is required under the Medicare regulations to report "any adverse legal action" within 30 days. However, there is a good faith argument to be made that the legal action to be reported must be final and unappealable. A temporary suspension without notice is certainly not a final determination as there must be a subsequent temporary suspension with notice hearing. Additionally it should be noted that the suspension of a medical license is only a "permissive" ground for Medicare exclusion. The physician is not mandatorily excluded from Medicare. An administrative lawyer well versed in Medicare regulations would be helpful in avoiding this undue exclusion during a temporary suspension.
The DEA is likewise entitled to revoke a person's DEA controlled substances registration if their medical license has been suspended or revoked. But, as described above, the temporary suspension without notice is short in duration because of the required temporary suspension with notice hearing. An administrative lawyer can similarly forestall the suspension or revocation of a physician's registration based on a thorough understanding of the Medical Practice Act's temporary suspension proceedings.
Repercussions on a physician's Medicare billing privileges and DEA registration as a result of a suspension with notice hearing.
After a with-notice hearing the temporary suspension can remain in place for an extended period of time, sometimes over a year. At this point, both Medicare and the DEA may exercise their statutory discretion and rescind the physician's privileges. However, because the revocation of the physician's privileges is still not mandatory, a skilled administrative attorney can find a legal basis to maintain the practitioner's privileges.
For instance, the physician may appeal the temporary suspension to a Texas district court. This would prevent the temporary suspension from becoming final as it would still be subject to possible reversal. If a physician's case is particularly strong, he may even move to enjoin the Texas Medical Board from enforcing the temporary suspension pending a final decision. This means that the temporary suspension would no longer have effect and the physician could continue to practice medicine in the interim. If the physician is thus "unsuspended," Medicare and the DEA lose their ability to revoke the physician's privileges on the grounds that his medical license is suspended. However, these agencies may still institute their own separate investigations and disciplinary proceedings against the physician to independently find grounds to revoke or refuse to renew his privileges.
A temporary suspension by the Texas Medical Board can have grave consequences for the physician's Medicare and DEA privileges. Physicians should retain legal representation for the temporary suspension proceedings; However, even after a temporary suspension, a physician should seek legal help from an administrative lawyer to mitigate the secondary damage such as the revocation of Medicare privileges and DEA registration. The lawyer must be familiar with both the Texas Medical Practice Act and the federal statutes and regulations governing Medicare and DEA privileges.
Our Leichter Law Firm physician licensing defense lawyers have exactly such experience and have been successful in obtaining injunctions against temporary suspensions and forestalling Medicare and DEA revocations. If you are facing temporary suspension or are suffering its aftermath please contact us at (512) 495-9995 to schedule your initial consultation.
The advent of telemedicine has made it possible to provide high quality medical care for underserved areas of Texas. Patients in rural areas now have the opportunity to receive care from the state’s best physicians when before travel costs would have made it impossible. Because of the new nature of telemedicine, state and federal laws and regulations have remained in flux. It is important for any telemedicine provider to be aware of these changes to ensure they remain compliant.
One of the most significant changes to telemedicine was the passage of the Ryan Haight Act in 2008. The Act places a number of restrictions on the practice of online pharmacies and the ability of practitioner's to prescribe medications through the internet. It was named after Ryan Haight, a teenager who died of a drug overdose in 2001 from controlled substances he bought from an online pharmacy. Mr. Haight was able to procure a prescription for Vicodin online without ever meeting a doctor.
The Act regulates anyone who delivers, distributes, or dispenses medication by means of the internet. The Drug Enforcement Agency treats a practitioner who prescribes medication following a telemedicine evaluation as covered under the Act. Generally a practitioner is in violation of the act if he or she does not perform at least one in-person assessment of the patient before prescribing medication.
The Act does exempt practitioners from this requirement as long as a practitioner meets the federal definition of practicing telemedicine. A physician practicing telemedicine may prescribe controlled substances without an in-person evaluation if: (1) The patient is treated by, and physically located in a hospital or clinic which has a valid DEA registration; and (2) the telemedicine practitioner is treating the patient in the usual course of professional practice, in accordance with state law, and with a valid DEA registration. 21 USC 802(54)(A). The most important thing to note for a practitioner is that the location where the patient is being treated must be a hospital or clinic that is itself registered with the DEA.
The requirement that the patient be in a hospital or clinic with a DEA registration is more stringent than Texas Medical Board requirements. Under Board rules, a physical, in-person evaluation is not necessarily required to prescribe medication and there is no requirement that the hospital or clinic have a DEA registration. A physician may treat a patient solely through telemedicine as long as the physician creates a physician-patient relationship, the patient is being treated at an “established medical” site, e.g., a clinic or hospital, and all additional requirements are met, including the use of a qualified presenter to examine the patient. Texas law also mandates that a telemedicine provider create and maintain detailed written protocols aimed at preventing fraud and abuse as well as separate policies covering the protection of patient privacy.
There are a number of other special types of telemedicine that under federal law allow a practitioner to prescribe medication without an in person visit, such as practicing telemedicine while working for the Veterans Administration, or receiving a special exemption from the Attorney General. The interaction between federal law and state law in this field is complicated and changing, and made all the more complicated by the piecemeal construction of the Controlled Substances Act.
If you are a physician who is thinking of beginning a telemedicine practice, it is important to seek the advice of experienced counsel to ensure your practice meets all federal and state law requirements. The applicable law can be complex and involve overlapping mandates on both the state and federal level. In Texas the rules regarding telemedicine continue to evolve as the Texas Medical Board frequently revisits this issue, often with an eye towards making more stringent regulation. The attorneys at the Leichter Law Firm have aided numerous physicians and other providers navigate both state and federal telemedicine law and implement best practices to help avoid the most common problems endemic to this field. In our experience, telemedicine is a complaint rich area where seeking the advice of a qualified attorney prior to being subjected to state or federal scrutiny makes all the difference.
Governor Rick Perry recently made eight appointments to the Texas Medical Board. The Medical Board is responsible for regulating the practice of medicine through licensure, discipline, and education, and is charged with protecting the health, safety, and welfare of the public, according to the Medical Board’s mission statement.
Four of the appointments are long-standing members of the Medical Board, who have each had their tenures extended to April 13, 2019. These current members included: Michael Arambula, M.D., PharmD, a psychiatrist in private practice, and adjunct professor in the Department of Psychiatry at the University of Texas Health Science Center at San Antonio; James Scott Holliday, D.O., of Dallas, Texas, an anesthesiologist for Pinnacle Partners in Medicine, where he is also the Vice Chairman; Margaret McNeese, M.D., of Houston, Texas, Associate Dean for Admissions and Student Affairs, and professor of Pediatrics at the University of Texas Health Science Center at Houston; and Timothy Webb, J.D., of Houston, who works as an attorney with Webb and Associates, and as an adjunct professor at the University of Houston Department of Health and Human Performance.
Devinder Bhatia, M.D., of Humble, Texas, was appointed to his first term with the Texas Medical Board. Dr. Devinder specializes in thoracic surgery, peripheral vascular disease, vascular surgery, cardiac surgery, and cardiac disease. He is also a former clinical professor at University of Texas Health Science Center in Houston.
Another new face to the Medical Board is Frank Denton of Conroe, Texas. Mr. Denton is president of a stock, bond, and real estate investment company called Denton Investment Corp. He was formerly a board member and small business chair of the Texas Association of Business. Additionally, Mr. Denton was a past Board chair of the Texas Department of Licensing and Regulation.
The Medical Board also now includes Robert B. Simonson, D.O., of Dallas, Texas. Dr. Simonson has practiced emergency medicine in Texas emergency rooms for about 25 years. He is the past president of the Physicians Emergency Care Associated and chair of the Methodist Dallas Medical Center Department of Emergency Medicine. He teaches at University of Texas Southwestern Medical Center and at the University of Texas Arlington School of Nursing. Dr. Simonson is also a board member of the American Board of Emergency Medicine.
The final appointee is Karl Swann, M.D., of San Antonio, Texas. Dr. Swann practices neurosurgery at Neurological Associates of San Antonio. He is also a clinical assistant professor at the University of Texas Health Science Center at San Antonio’s Center for Neurological Sciences, and was the past chairman of the Methodist Hospital System Department of Neurosurgery in San Antonio. Dr. Swann was appointed to the Texas Rehabilitation Commission in 1998, and to the Texas Health Care Information Council in 2000.
If you have an investigation or legal case pending before the Texas Medical Board, and want a knowledgeable administrative law attorney, with experience working with the Board and its members, please call the attorneys at the Leichter Law Firm for a free consultation at 512-495-9995.
83rd Texas Legislature Makes Important Changes to Law Governing Without Notice Payment Holds on Medicaid Reimbursements
Over the past few years, the number of fraud investigations and without notice Medicaid payment holds initiated by the Texas Health and Human Services Commission-Office of the Inspector General (THHSC-OIG or Commission) has risen dramatically. This has been accompanied by public outcry on the part of Medicaid providers who have been hit with indefinite payment holds based on little or no evidence, payment holds which can stay in place indefinitely while the Office of the Inspector General conducts its full, and often lengthy investigation.
One of the more important health care bills passed by the 83rd Texas Legislature imparts much needed revisions to the statutes governing the THHSC- Office of the Inspector General's authority to impose without notice payment holds on Medicaid providers accused of fraud. The statutory changes by the Texas Legislature reflect an intense lobbying effort by Medicaid providers to add greater transparency, clearer standards, and more robust due process to without notice payment holds.
Pursuant to the Patient Protection and Affordable Care Act, more colloquially known as "Obamacare," states are required to withhold Medicaid payments to providers upon receipt of a "credible allegation of fraud." In Texas, responsibility for civil and administrative prosecution of Medicaid fraud rests with THHSC-Office of the Inspector General. Criminal investigation and prosecution for Medicaid fraud falls on the shoulders of the Medicaid Fraud Unit of the Texas Attorney General's Office. Oftentimes both of these agencies will pursue civil and criminal legal actions in concert.
Prior to the passage of the recent legislation there was no statutory definition of what constituted a "credible allegation of fraud," nor guidance on what kind evidence or preliminary investigation was required before the Office of the Inspector General could impose a without notice payment hold. Because of this, the THHSC-OIG was relatively unfettered in deciding when to impose a payment hold and many Medicaid providers complained this frequently resulted in payment holds being initiated based on little or no evidence of actual fraud.
More importantly, under the prior law a Medicaid provider who was the subject of a without notice payment hold had little to no opportunity to challenge the hold prior to the informal conference or contested case proceeding which would only occur after the completion of a full investigation by THHSC-OIG's. This full investigatory and administrative process can in many instances take one or more years.
Thus, even if the provider is eventually vindicated, or later settles their case through a partial repayment of the money received from Medicaid, in the interim the provider is denied all Medicaid reimbursement for ongoing care and services. For many providers, such as physician or dental practices catering to Medicaid patients, this is effectively a death sentence as they are forced to indefinitely shoulder the costs of providing care while continuing to pay overhead and satisfy payroll with only an uncertain hope of later reimbursement after their case is resolved and the payment hold removed. The new legislation remedies many of these defects by explicitly defining what constitutes a credible allegation of fraud, outlining the procedure the Commission is required to follow prior to making this determination, and affording an expedited informal conference and/or contested case hearing to a Medicaid provider who is the subject of a without notice payment hold.
Under the new statute distinct definitions are created for both an "allegation of fraud" and a "credible allegation of fraud." Significantly, these definitions make clear that an allegation of fraud can only be deemed credible after a careful case-by-case review that examines all allegations, facts, and evidence; a tip to the fraud hotline, claims data analysis, provider audit, or active law enforcement investigation in-and-of-themselves do not constitute a credible fraud allegation. Although much will depend on how these new standards are implemented by the THHSC-OIG, this is a helpful development as in the past many payment holds have been based entirely on one of the above listed factors which have now been deemed insufficient in the absence of further evidence of fraud.
In addition to better defining what constitutes a "credible allegation of fraud," and perhaps more importantly, what does not, the Texas Legislature now mandates that the Office of the Inspector General conduct a preliminary investigation prior to imposing a payment hold or proceeding to a full investigation. This preliminary investigation culminates in the generation of a report containing the underlying allegation, the evidence reviewed, the procedures used to conduct the investigation, the findings, and a determination of whether a full investigation is warranted. The revised statute also mandates that the Commission retain separate physician and dental directors who must ensure any investigative findings based on the necessity or quality of care be reviewed by a qualified expert. Although the actual impact of these provisions will largely depend on how they are implemented by the THHSC-OIG, ideally these changes will impart additional rigor to the process the Office of the Inspector General uses to screen fraud and abuse allegations for further investigation and the possible imposition of a payment hold.
Of greatest value, the Legislature has afforded Medicaid providers who are the subject of a without notice payment hold an expedited hearings process to either challenge this status or quickly settle their case. The new statutes mandate that the Commission include a recitation of a provider's procedural rights concurrent with notice that a payment hold has been imposed. These rights include the option to either immediately proceed to a contested case hearing at the State Office of Administrative Hearings within sixty days receipt of the notice letter or convene an informal conference with the option for a later contested case hearing should the informal conference fail to resolve their case. This development is significant as it allows the subject of a Medicaid payment hold to promptly challenge their status. Given this new check on their authority, the THHSC-Office of the Inspector General will likely spend more time building a case for fraud prior to deciding to implement a without notice payment hold.
Based on my experience representing Medicaid providers before the Office of the Inspector General and the Medicaid Fraud Control Unit, I view these statutory revisions as a positive step towards remedying abuses of the payment hold process. I have seen many clients devastated by a without notice payment hold due to the absence of any ready legal means to challenge this status prior to the completion of the Commission's full investigation. The new definitions and standards applicable to a preliminary investigation should also lead to more deliberation by the THHSC-OIG before the agency decides to initiate a hold.
If you are under investigation for Medicaid fraud or abuse by the Office of the Inspector General, it is imperative to contact an experienced attorney as soon as possible. The threat of a without notice payment hold is very real and the amount of money in controversy is typically significant. Moreover, the OIG often turns these cases over to the Medicaid Fraud Control Unit for possible criminal scrutiny. Medicaid fraud is a serious offense, carries significant prison time, and is often a career ender for a health care provider or business owner. It is crucial to find competent and experienced legal counsel at the very start of the matter as these cases have a tendency to quickly snowball and important legal rights can be unknowingly waived by the client or counsel unfamiliar with the applicable law and OIG process.
Important Update for Texas Nurses on a Board Order: Texas Board of Nursing Starts Screening for EtG and EtS
During the last month my firm has experienced an influx of calls from nurses who have tested positive for alcohol while on an Order with the Texas Board of Nursing. The consequences of testing positive for a prohibited substance, including alcohol, while under a Board Order can be quite severe. This includes an automatic temporary suspension of the nurse's license and a high likelihood that this suspension will be continued until the nurse has subsequently obtained twelve consecutive months of sobriety verified by additional random drug and alcohol testing. Moreover, from a legal perspective it is very difficult to mount an effective defense in the face of a positive test and avoid these harsh consequences.
The reason for the sudden increase in nurses testing positive for alcohol appears to be the Texas Board of Nursing's new decision to include testing for ethyl glucuronide (EtS) and ethly sulfate (EtS) in their screening panel. Previously, the screening company used by the Texas Board of Nursing only tested for ethanol, however, the Board recently signed a contract with a new vendor that includes both EtG and EtS screening in their panel. This is crucial as the sensitivity and detection window of EtG and EtS testing is much higher than a traditional urine ethanol screen.
Ethanol, or alcohol, is the primary intoxicating ingredient in alcoholic beverages. Accordingly, a person who has ingested alcohol will only test positive for ethanol as long as the alcohol remains in their system. Once it has been fully metabolized by the liver, the person will no longer test positive. Given this is a relatively quick process ethanol testing will generally only provide a 10-12 hour window in which to detect if a person has ingested alcohol. If the person has only had one or two drinks, the detection window is even shorter.
In contrast, EtG and EtS testing can detect even light alcohol use over a period of several days. Additionally, these tests, and the low cut-off levels used by the Board, are highly sensitive to even a small amount of alcohol ingetsion. It is also well documented that inadvertent, casual exposure to alcohol in the environment can cause a person to test positive. Sources of incidental exposure to alcohol that can cause positive results include:
- hand sanitizers containing alcohol;
- foods containing trace amounts of alcohol;
- non-alcoholic beers such as O'Doul's;
- colognes and perfumes;
- sustained exposure to gasoline and other chemical agents containing alcohol;
- mouthwashes containing alcohol such as Listerine and Scope;
- over-the-counter medications containing alcohol;
- certain natural and herbal medications.
I am unaware whether the Board has provided nurses testing pursuant to a Board Order with information concerning this new testing panel. Ideally, nurses should also be provided with a list of different substances which can inadvertently cause a positive result. For many years, nurses in the Texas Peer Assistance Program for Nurses been given this information prior to their enrollment in testing and hopefully the Board is doing or will soon be doing the same. This is also the standard of practice for the Texas Physician Health Program and the Professional Recovery Network.
Texas nurses testing through the Board need to be made aware that they are now being tested for EtG and EtS and receive education on how to avoid an inadvertent positive. Whether a nurse who has already tested positive can mount a legal defense is largely dependent on their test level and whether they were positive for both EtG and EtS. A low positive can be an indication of only inadvertent exposure to alcohol while a test that is positive for EtG but negative for EtS strongly suggests either a contaminated sample or the spontaneous production of ethyl glucuronide in the specimen container. In District Court actions, my firm has previously successfully challenged on these bases two automatic suspension orders entered against physicians by the Texas Medical Board.
If you have tested positive for EtG or EtS, it is prudent to contact an attorney with Board experience immediately to explore your legal options. The Board is likely to move quickly to temporarily suspend your license and time is of the essence. Even if a suspension is inevitable, oftentimes an attorney can be useful in negotiating a subsequent Order with the Board that minimizes the amount of time the nurse will be unable to practice.
Given the current aggressive regulatory climate surrounding the treatment of chronic pain, it is worthwhile to look back and understand how the applicable law developed prior to the Legislature's empowerment of the Texas Medical Board to oversee registered pain clinics in 2011. This prior law, including the Intractable Pain Treatment Act, was designed to safeguard physicians who treat chronic pain while remaining within the standard of care. It has been my experience as an attorney representing numerous physicians, mid-level providers, and pharmacies, that this prior law has largely been either forgotten or eroded to the point it no longer provides real protection to medical professionals.
The Intractable Pain Treatment Act (IPTA), separate from the Medical Practice Act, is codified at Chapter 107, Texas Occupation Code, and was intended to provide physicians with a safe harbor in prescribing controlled substances and dangerous drugs to treat pain. In this post we provide a background of this Act and its current relevance, or lack thereof, in the practice of medicine.
The Intractable Pain Treatment Act was passed in 1989 to deal with the problem that physicians were being disciplined by the Texas Medical Board because the Board refused to distinguish habitual users of narcotic drugs from patients with genuine medical needs. Prior to the passage of the IPTA, the Medical Practice Act allowed the Texas Medical Board, known at that time as the Texas Board of Medical Examiners, to discipline physicians for prescribing controlled substances or dangerous drugs to a person "known to be habitual users of narcotic drugs, controlled substances, or dangerous drugs or to a person who the physician should have known was a habitual user of the drugs." This phrasing of the Medical Practice Act made patients taking opioids to alleviate genuine suffering "habitual users." Accordingly, physicians prescribing pain medication to cancer patients were subject to disciplinary action by the Board. Such was the effect that physicians refused to prescribe these therapeutic drugs and hospitals refused to let physicians prescribe them on the premises.
The Intractable Pain Act of 1989 sought to rectify this basic problem by protecting physicians from Texas Medical Board discipline if they prescribed the medication for "intractable pain." Intractable pain is defined as pain the cause of which cannot be removed, treated, or cured. The IPTA also prohibited hospitals from restricting credentialed physicians from prescribing pain medications for intractable pain.
In 1993 the Legislature modified the Medical Practice Act to prohibit doctors from prescribing to a person who was a known "abuser" of controlled medications. In 1996 the Legislature amended the Intractable Pain Act to allow physicians to prescribe controlled medication even to such abusers as long as the medication was strictly for the management of their diagnosed pain which the physician had a duty to monitor. The physician was also required to document the understanding between the doctor and the patient and to consult with an addiction specialist as appropriate. These restrictions were only required when dealing with patients who were drug abusers or had a history of drug abuse.
In its final form the IPTA was meant to provide a safe harbor for Texas doctors who treated long-term pain provided the controlled medications they prescribed were actually for an underlying pain condition. This safe harbor protects physicians who treat known drug abusers for intractable pain provided they monitor the patient and consult with the appropriate mental health expert. Yet the protections of the safe harbor are slight; by the Act's own terms, the Texas Medical Board can still discipline physicians if they prescribe non-therapeutically or prescribe in a manner inconsistent with the public welfare.
The safe harbor provision provided by the Intractable Pain Treatment Act has been recognized, albeit modified, by the Board in its pain management rules codified at Chapter 170, Title 22 Texas Administrative Code. The rules recognize that pain treatment is a vital and integral part of the practice of medicine and that doctors should be able to treat pain using sound clinical judgment without the fear of disciplinary action from the Texas Medical Board. Yet, the rules go on to list several actions that should be involved in the treatment of chronic pain including the formulation of a pain management contract requiring random drug screening.
From the rules it is apparent that whereas the Intractable Pain Treatment Act required heightened monitoring and more rigorous documentation merely for known drug abusers, the Board's most recent rules make that standard applicable to all long-term pain management patients. While the rules do call themselves "guidelines" it should be noted that the Texas Medical Board will allow deviation from the guidelines only if the physician's rational for treatment indicates sound clinical judgment documented in the medical records.Continue Reading...
Texas Medical Board Schedules Wave of Temporary Suspension Hearings Targeting Pain Management Physicians and Physician Assistants
As we reported earlier this month, the Drug Enforcement Administration (DEA) along with several state agencies, including the Texas Medical Board (TMB) and Texas State Board of Pharmacy (TSBP), has been increasingly active in Houston over the past few months. More than ever before, the joint state and federal taskforce has taken a scorched earth approach to the battle against alleged “pill mills.” The taskforce has generally shown up at clinics and pharmacies unannounced, seizing records and equipment, and demanding surrender of the practitioner’s DEA prescribing registration. The practitioners targeted by this task force and these methods are not just notorious “pill mill” doctors and pharmacies, but also a large number of legitimate pain management physicians, physician assistants, nurse practitioners, pharmacists and pharmacies that just happen to be operating at ground zero of the war on prescription drugs. The net has been cast wide, and many practitioners are finding themselves in need of competent and experienced legal representation.
A Surge in Temporary Suspensions on the Horizon:
Many of the physicians or physician assistants that have any present or past association with these raided clinics are finding themselves the target of Temporary Suspension proceedings by the Texas Medical Board, based solely on their association with an alleged “pill mill”. We have received numerous calls over the last few weeks from physicians and physician assistants who have received notice of Temporary Suspension proceedings and are seeking the services of professional license defense lawyers. The Texas Secretary of State’s website currently lists eight Temporary Suspension hearings to be heard by the Medical Board just next week.
Temporary Suspension proceedings are initiated when Medical Board staff believes they have evidence sufficient to prove that the licensee’s continued practice constitutes a continuing threat to the public welfare (See Occupations Code, Section 164.059(b)). If after a Temporary Suspension hearing, the Disciplinary Panel, made up of Medical Board members, decides that Medical Board staff has indeed presented evidence sufficient to prove that the licensee constitutes a continuing threat, then that licensee’s license is suspended that very day. As such, there is a great deal at stake for any licensee that finds themselves in that position, and the benefit of hiring an attorney well-versed in medical license defense should be clear.
The Board’s Temporary Suspension remedy has traditionally been used sparingly, due to its severe impact on a licensee’s career, and due to the sizeable burden that Medical Board staff shoulders in proving that a licensee is a continuing threat to public welfare. The wave of Temporary Suspensions that the Board currently has scheduled represents a significant departure from that thinking. The commonalities in these cases are that the practitioners have some connection, either present or past, with a pain management clinic that has been targeted by the DEA taskforce. The licensee may be a physician who was serving as a part-time supervising physician or medical director. The licensee may be a physician assistant that worked in the clinic on a contract basis. Whatever the association, Medical Board staff’s theory of prosecution equates any association with an alleged “pill mill” to a continuing threat to the public, and often the evidence that they are using to show a continuing threat is equally as thin. However, if a licensee is not equipped to challenge Medical Board staff’s evidence and legal theories, it is likely that the Medical Board panel will find with Board staff.
What should you do if you receive notice of a Temporary Suspension hearing?
You should hire an attorney immediately upon being noticed of a Temporary Suspension hearing in front of the Texas Medical Board for several reasons.
First, you are most likely not equipped to represent yourself in a contested hearing in front of the Texas Medical Board. The disciplinary process at the Board is not intuitive and Temporary Suspension proceedings are particularly quirky. It is to your benefit to hire someone that is capable of putting on a cohesive defense that will include preparing and presenting documentary evidence, putting on witness testimony, cross-examining Board staff’s witnesses, and zealously advocating on your behalf.
Second, the Medical Board is only required to give you 10-days notice by Board rule (Texas Administrative Code, Title 22, Chapter 187.60(2)). This is a very limited amount of time to put together a strong and comprehensive defense. The best way to combat this challenge is to hire a lawyer that is capable of preparing a defense under these conditions, and to hire them immediately, so as to not waste time.
Third and finally, you should seek legal counsel and potentially hire an attorney because there is a great deal at stake with a Temporary Suspension hearing. It is nothing to be taken lightly. Your ability to practice under your license in the short term is in jeopardy, as is your future practice. A temporary suspension is on your public record forever, and its existence will definitely require explanation, and could potentially cost you opportunities in the future.
If you receive a visit from the DEA taskforce or you are given notice of a Temporary Suspension hearing from the Texas Medical Board or Texas State Board of Pharmacy, please do not hesitate to contact the professional medical license defense attorneys at the Leichter Law Firm. You need the guidance of an attorney that is experienced in medical licensing law, including cases dealing with allegations of non-therapeutic prescribing and prescription drug diversion, as well as the potential criminal ramifications. The Leichter Law Firm’s attorneys have represented clients in similar circumstances and have gained positive results for our clients. Give us a call at (512) 495-9995 or submit an inquiry through our website at http://www.leichterlaw.com/ for a free consultation.