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.
Over the past month, the Federal Drug Enforcement Administration has drastically increased their activity in the Houston area. This includes a dramatic upswing in the number of unannounced raids targeting pain management physicians, physician assistants, nurse practitioner, and pharmacies. At this juncture, most every pain management clinic and pharmacy in the Houston should be aware of the coordinated campaign being conducted against pain management medicine by the DEA, local law enforcement, the Texas Medical Board, and the Texas State Board of Pharmacy. For background information please refer to the numerous posts concerning this topic on this blog.
To date, the government's strategy has largely focused on identifying the largest prescribers and dispensers of the most commonly prescribed medications for pain management— hydrocodone and some type of muscle relaxer, usually Soma— and then targeting these facilities as well as the associated physicians and pharmacists. Oftentimes, the physician, mid-level practitioner, or pharmacist will only first learn they have been targeted when the DEA and associated agencies suddenly appear at their place of business brandishing badges and search warrants. This will be closely followed by a temporary suspension hearing before the Texas Medical Board or Texas State Board of Pharmacy intended to immediately suspend the practitioner's license.
Based on the number of phone calls to my law firm in the last month, it is clear the government's tactics have shifted away from selectively targeting the highest prescribers and dispensers of pain management medications. The DEA is now engaging in a much wider, almost indiscriminate, operation of raiding pain management clinics and the pharmacies that fill their scripts. Many of these raids appear focused merely on seizing records and equipment.
Traditionally, virtually every search and seizure has included a demand by the DEA that the physician or pharmacy owner immediately surrender their controlled substances registration. This is accompanied by vague threats of criminal and/or administrative prosecution if the licensee declines. During the most recent set of raids, the DEA has not consistently requested the surrender of the physician or pharmacy owner's registration. In some instances, the DEA has even specifically told the client they are free to reopen.
This emerging pattern of practice likely indicates the DEA and local law enforcement are amassing documents and information to later be used for mass indictments in federal and state criminal courts. The Houston District Attorney's office has recently suffered several setbacks in their prosecution of pain management / non-therapeutic prescribing cases. These loses probably heralded the current shift of tactics and more careful preparation of cases prior to filing. The DEA may also be looking to pursue more widespread administrative revocation of perceived wrong-doers' controlled substances registrations.
Regardless of the meaning or implications of this change, any physician or pharmacist who is raided by the DEA should immediately contact an attorney with experience representing clients accused of non-therapeutic prescribing/dispensing in both the criminal and administrative arenas. These cases are pursued zealously by the applicable agencies and usually involve a multi-front assault criminally through state or federal court and administratively through the person's controlled substances registration and applicable state licensing board.
Moreover, a physician, pharmacist, or mid-level practitioner should not surrender their controlled substances registration prior to consulting with an attorney. The DEA's raids are designed to intimidate and many practitioners make the mistake of buckling to the government's threats and surrender their certificates. This is a reflexive request on the part of the DEA and does not actually mean the person has done anything wrong or that the government has a good case. Additionally, even though my firm has been very successful in obtaining the reissuance of clients' surrendered controlled substances registrations, the reinstatement process is onerous and time-consuming and the intervening damage to the client's medical practice or pharmacy can be devastating.
Any physician or pharmacy who has been raided by the DEA should immediately contact an attorney, preferably during the actual raid. You have the right to speak to attorney prior to providing a statement or making any decision concerning your certificate. The stakes are very high in these cases and a successful outcome is often dependent on securing competent counsel at the earliest possible stage.
As the Texas physician shortage continues, more and more physicians from foreign countries are coming to the state to meet the shortfall. This blog post describes how the Texas Medical Board and legislature have limited the geographic locations in which foreign physicians can practice. This post also discusses the constitutional implications of the law given that it allows the Board to discriminate against foreign physicians.
In 2011, the Texas legislature amended the Medical Practice Act to require that foreign physicians who were neither US citizens nor permanent residents (green card holders) work in a Medically Underserved Area for three years, or promise to so work, in order to qualify for a Texas medical license. The law does not affect current license-holders, physicians who have practiced at least one year prior to September 1, 2012 on a Texas Physician-in-Training permit, or physicians who submitted their applications for full licensure prior to September 1, 2012. Other foreign physicians not subject to one of the foregoing exceptions are subject to the new law.
The main effect of this law is to force physicians in the United States on an H-1B work visa to practice for three years in a Medically Underserved Area. Medically Underserved Areas (MUAs) are designated by the United States Department of Health and Human Services and administered in Texas by the Texas Department of State Health Services. MUAs are areas which suffer from a significant shortage of personal health services and are determined according to a formula weighing a geographic location's poverty and infant mortality rates, the percentage of elderly population, and the ratio of primary care physicians. Many rural counties in Texas have been designated as a MUA as have certain disadvantaged areas in large cities such as San Antonio.
The law is primarily designed to impose the same rules on a foreign physician coming to Texas under a H-1B visa as those applicable to an individual coming to Texas pursuant to a J-1 visa. Foreign physicians coming to the United States to do their residencies usually enter on either a J-1 or an H-1B work visa. Under the federal laws, the J-1 visa allows a physician to do his residency, but at the end of his stipulated time he must return to his country of citizenship and stay there for two years. He is not eligible to seek green card status. However, if the physician elects to work in a MUA, they can receive a waiver and have their status adjusted to H-1B status without having to leave the US and face the 2-year residence abroad requirement. The physician is also then allowed to apply for a green card.
Under federal law, a physician who initially enters on an H-1B does not have to face these burdens. They are eligible to petition for a green card without a break in their stay and employment in the United States. Nor does such a physician have to obtain a waiver by working in a MUA.
The new Texas law forces a H-1B physician to work in a MUA just as her J-1 counterpart would by making practicing in such an area a mandatory requirement for licensure. It is certainly interesting that the Texas Medical Board is now effectively pursuing immigration policy and determining where a foreign physician can geographically work. There is no claim being made that the H-1B physicians are inferior and so demand more scrutiny than American citizens. In fact a contrary inference may be drawn since it is mandated that the H-1B physician provide care for some of the most medically vulnerable populations in Texas. Moreover, most H-1B foreign physicians will have completed a residency program in Texas. Thus, the Texas law is not in place to protect the public from foreign physicians. The law is merely a way of ensuring that H-1B physicians take jobs in areas no American physician wants to go to—the MUA.
It is also likely possible this new law would have an overall negative impact on the number of new physicians coming to Texas to practice by discouraging the immigration of foreign doctors. If the only way for a foreign physician to practice in Texas is to do so in a MUA (an area which by definition has, for whatever reason, not proven attractive to Texas physicians), they may very likely simply go to another state following their residency in Texas. In effect, Texas health resources spent training new physicians will ultimately go to benefit other states.
It is also important to keep in mind that a foreign physician in the country on a H-1B visa cannot open their own practice, even in a MUA. They can only work for a sponsoring employer. Accordingly, foreign physicians are being forced to find a pre-existing physician practice in an area which is designated a MUA precisely because there is already severe shortage of physicians. It is unclear how areas which are already struggling to economically support a basic health care structure are going to integrate an influx of foreign physicians.Continue Reading...
As tuition at US medical schools continues to increase at an astronomical rate, more and more aspiring doctors are looking abroad, particularly to the Caribbean, to pursue their medical degrees. Moreover, due to the shortage of physicians in the United States the country needs more physicians from other countries. Both sets of medical graduates of foreign medical schools face challenges when they seek licensure in the United States. This post particularly describes the additional burdens faced by graduates of foreign medical schools as they seek licensure in Texas.
The Texas Medical Board regulates the practice of medicine in the State of Texas. This includes determining licensure requirements for medical school graduates. Part of this determination requires verifying that the graduate met certain minimum requirements during the course of their medical education. While such a verification for graduates of United States medical schools are relatively easy—the Board relies on the Liaison Committee on Medical Education and American Osteopathic Association Bureau of Professional Education to approve those schools—the verification of foreign medical schools is a much more cumbersome process. It should be noted that the process described here is independent of citizenship status—i.e. the vetting process for foreign medical schools is the same regardless of whether the foreign medical school graduate is a United States citizen or a citizen of another country.
The verification process first begins with a degree equivalency determination. The foreign medical graduate (FMG) must get their credentials evaluated by the Educational Commission for Foreign Medical Graduates (ECFMG), a non-profit organization that deals with determining the equivalency of foreign medical degrees. ECFMG will weigh the foreign transcript and grades and convert the coursework into an equivalent for a US school. If ECFMG determines that the degree received is equivalent to a US Medical degree then it will award the FMG a certificate saying so. ECFMG may find that a foreign medical degree is equivalent to a US medical degree even if that degree is a baccalaureate one. Obtaining a certificate from ECFMG is also required before the foreign medical school graduate may sit for the United States Medical Licensing Examination (USMLE), which is the standard medical licensing examination in the United States.
However, a certificate from the ECFMG is only a starting point for the foreign medical graduate. The Texas Medical Board further requires that the foreign medical graduate show that the school itself rather than just the coursework is substantially equivalent to a Texas medical school. Such a determination requires documentation of:
- a Foreign Educational Credentials Evaluation from the Office of International Education Services of the American Association of Collegiate Registrars and Admissions Officers (AACRAO) or an International Credential Evaluation from the Foreign Credential Service of America (FCSA), or another similar entity as approved by the board;
- a board questionnaire, to be completed by the medical school and returned directly to the board;
- a copy of the medical school's catalog;
- verification from the country's educational agency confirming the validity of school and licensure of applicant;
- proof of written agreements between the medical school and all hospitals that are not located in the same country as the medical school where medical education was obtained;
- proof that the faculty members of the medical school had written contracts with the school if they taught a course outside the country where the medical school was located;
- proof that the medical education courses taught in the United States complied with the higher education laws of the state in which the courses were taught;
- proof that the faculty members of the medical school who taught courses in the United States were on the faculty of the program of graduate medical education when the courses were taught; and
- proof that all education completed in the United States or Canada was while the applicant was enrolled as a visiting student as evidenced by a letter of verification from the U.S. or Canadian medical school.
Following the movement of its prior General Counsel to the Office of the Inspector General, the Texas State Board of Dental Examiners recently hired Julie Hildebrand to serve as the Board's new head attorney. For the past several years Ms. Hildebrand has served as the lead litigation attorney for the Texas State Board of Pharmacy. As such, Ms. Hildebrand was responsible for trying the bulk of the Pharmacy Board's case load at the State Office of Administrative Hearings (SOAH).
Ms. Hildebrand's predecessor, Joy Sparks, started as General Counsel during a transitional time at the Board as it worked to streamline its investigative and disciplinary process and become more aggressive towards dentists suspected of violating the Dental Practice Act. Ms. Sparks was instrumental in this process, applying many of the same basic procedures used by the Texas Board of Nursing, a much larger board were she was previously employed as Assistant General Counsel. This included multiple changes to the Dental Practice Act designed to modernize it and bring it more in line with licensing laws applicable to other Texas health care professionals.
It is yet to be seen what impact Ms. Hildebrand will have on this trend but I would assume the Dental Board will continue the policies and efficiency building initiatives conceived under Ms. Sparks. Ms. Hildebrand's prior employer, the Texas State Board of Pharmacy, is notorious for assuming unreasonable disciplinary stances that typically lead to otherwise unnecessary litigation. That being said, the Leichter Law Firm's experience with Ms. Hildebrand is that although she will enforce the Board's position whatever it may be, she is personally reasonable and willing to consider all aspects of a case. I do not expect the Texas Dental Board to ease off of its more proactive posture towards investigations and disciplinary action against Texas dentists.
In 2010, the Texas Legislature created the Texas Physician Health Program (PHP), effectively shifting the oversight of licensed Texas physicians with substance abuse disorders and mental illness from the Texas Medical Board to a program uniquely tailored to monitor those issues. Responsible in part for the success of this idea is the sentiment that physicians generally do not like dealing with the Medical Board, and are not keen on self-reporting substance abuse issues to the Medical Board or being candid about mental health problems. The PHP, while not entirely independent from the Medical Board (PHP is administratively linked to the TMB), was intended to provide a more attractive option for those physicians who needed the oversight and the help that PHP would provide. In the 2+ years since its creation, the PHP has largely been successful, and certainly is still preferable to the Medical Board’s investigative and disciplinary process in many instances. However, there are certain types of “substance-related” cases in which a referral to the PHP is not appropriate, and a physician would be better served to hire an experienced professional license defense attorney and take the case to the Medical Board, seeking dismissal. Simply put, a one-time arrest and conviction for DWI or Public Intoxication does not justify a long-term PHP contract aimed at facilitating recovery.
The PHP is not typically appropriate in instances where the physician has had a one-time substance-related arrest, but no substance abuse diagnosis. However, we frequently encounter physicians who have been arrested for one-time instances of DWI or public intoxication and are subsequently offered participation in the PHP in lieu of Medical Board action. Oftentimes, the offer of PHP contract will have been given before the DWI case is even criminally adjudicated. For a physician that does not seek the proper legal guidance, that one-time DWI arrest will result in a 5-year PHP contract, where the physician is subjected to terms that likely include substance abuse treatment, Alcoholics Anonymous attendance, drug screening, and possibly practice restrictions. While a confidential PHP contract that offers that level of structure is probably appropriate for a physician with a diagnosed substance use disorder, it is not appropriate for the physician who made a highly regrettable, one-time decision to drink and drive. Additionally, it is very difficult for anyone to stay compliant with a 5-year PHP contract when there is no actual substance abuse disorder- the terms of the order start to look very arbitrary. Moreover, there will be lifelong consequences with credentialing and applications for privileges.
The alternative to a PHP contract is the perceived threat that the physician’s case will be forwarded to the Medical Board for investigation and possible disciplinary action. Contrary to common misperceptions, that is often the preferable scenario in this instance. The Medical Board does not have the power to discipline a physician for a one-time arrest and conviction of DWI, and as long as that DWI does not lead to evidence that the physician may have a substance abuse problem, the Medical Board must dismiss the case (Tex. Occ. Code § 164.051(a)(2)). The physician will probably be investigated and invited to participate in an Informal Settlement Conference with the TMB, but an experienced administrative law attorney should be able to guide them through the process without receipt of any discipline. The professional license defense attorneys of the Leichter Law Firm have been very successful in getting these cases dismissed.
If you are a physician, physician assistant, or other licensee of the Texas Medical Board, and you have been offered a PHP participation contract in response to a one-time substance-related arrest, do not hesitate to contact the experienced administrative law attorneys of the Leichter Law Firm. Even if you have not yet been contacted by the TMB or the PHP regarding your substance-related arrest, it is advisable to contact us at 512-495-9995 for a free consultation.
A Texas pharmacist who is suspected of having a potential substance abuse or dependency problem or other mental health issue which could impact their ability to safely practice is almost always asked by the Texas State Board of Pharmacy or Professional Recovery Network (PRN) to undergo an evaluation with a mental health provider (MHP). This request is typically made in one of two contexts:
- A pharmacist has just been referred to PRN and is asked to undergo an evaluation to determine whether they suffer from an impairment issue, and, if so, what is the appropriate course of treatment; or
- The pharmacist has been invited to attend an informal conference with the Texas State Board of Pharmacy about a disciplinary issue and is also asked to complete a PRN-coordinated mental health evaluation prior to the scheduled conference.
In both instances the pharmacist should be wary of accepting and undergoing this process unassisted by legal counsel, particularly if the pharmacist has some doubt as to whether they suffer from an impairment or mental health issue. I have seen many, many pharmacists who have unwittingly undercut their own case by failing to hire an attorney until after they are evaluated by an MHP.
The potential pitfalls of this process are multifold. First, the pharmacist is always asked to see a mental health provider who is on PRN's pre-approved evaluator list. PRN's list is primarily composed of licensed chemical dependency counselors (LCDC) as, pursuant to their contract with the Pharmacy Board, PRN is required to pay for the evaluation and, as a lower level provider, an LCDC can charge a much lower rate than a forensic psychologist or psychiatrist.
Besides not possessing the same level of expertise as a physician or psychologist, it has been my experience that the LCDCs on PRN's list tend to repeatedly misdiagnose pharmacists with impairment issues they do not have. A classic case is a person with two alcohol related criminal offenses, such as two DWIs, which are multiple years apart. According to DSM-IV criteria, the near universally accepted gold standard for diagnosis in this area, this fact alone would not qualify the pharmacist for an alcohol abuse or dependency diagnosis. Yet, time and time again, my firm has been retained by a pharmacist who was improperly diagnosed based on stale criminal history or other criteria not recognized in addiction medicine.
Also an issue, most LCDC's are employed by or closely affiliated with a treatment center. Because of this, there is often a presumption on the part of the evaluator that the pharmacist must have a problem simply because they have been referred to their office. Additionally, the LCDC's connection to a treatment center creates an incentive to find some diagnosis in order to justify treatment.
Finally, many of the evaluators on the PRN's pre-approved list suffer from the perception, whether accurate or not, that in order to stay on the list and continue to receive referrals, they must find problems with the pharmacists sent to their office.
All of these factors combine to create a pool of pharmacists who are misdiagnosed with substance abuse or mental health issues they do not have. Once a pharmacist has been diagnosed with a problem they will at a minimum be required to enter into a five year monitoring agreement with PRN. If they refuse, PRN is required by law to refer their case to the Texas State Board of Pharmacy. Once the Pharmacy Board is involved, the Board's disciplinary policies mandate that the person be placed on a five-year Board Order which requires full PRN participation as well as workplace reporting and restrictions. In either scenario, the pharmacist will be required to regularly attend AA, abstain from alcohol and any other potentially addicting substances, and undergo expensive inpatient or outpatient treatment.
In most cases, such a poor outcome could have been avoided had the pharmacist hired an attorney prior to undergoing an evaluation with an MHP either by command of the Board or PRN. Our attorneys have years of experience working with both the Board and PRN and are familiar with evaluators on PRN's approved list. We have the knowledge necessary to collaborate with PRN to locate an evaluator who is fair and holds the expertise necessary for an individual case.
In matters involving allegations of impairment the selection of an appropriate evaluator is oftentimes the single most important point in the pharmacist's entire case. Once a pharmacist has received some form of impairment diagnosis, the damage is often irreparable. If you have been asked to undergo an evaluation by either PRN or the Board, it is absolutely crucial that you immediately contact an attorney familiar with both entities prior to moving forward.
Since the summer of 2011, the Texas Medical Board has been considering adopting a new rule applicable to non-surgical, cosmetic procedures such as Botox or dermal filler injections. The proposal would create new standards and requirements applicable to physicians who perform or delegate the performance of such procedures. Currently, this area is covered by Chapter 157 of the Medical Practice Act which governs a physician's ability to delegate the performance of medical acts to a non-physician. This includes a person who is not licensed, such as a medical assistant, and individuals who are licensed but are not allowed to diagnose illness or create a treatment plan, such as a cosmetologist.
Underlying the Texas Medical Board's initiative is a concern that physicians have not been exercising sufficient control and supervision over the unlicensed persons performing delegated non-surgical, cosmetic medical acts. This includes allowing an unlicensed person to determine the need for the cosmetic procedure as well as deciding how this procedure was to be performed- i.e. how many Botox units to use and the selection of injection sites. In the reports submitted to the Board Committee drafting the new rule, Medical Board Staff have argued that this constitutes the unlicensed practice medicine.
Prior to the initial stakeholder's meeting weighing in on a proposed rule, the attorneys at my firm had represented a physician who had delegated filler injections to a medical assistant. The Board invited our client to an informal conference to address allegations that this constituted improper supervision and delegation. Based on our argument that the physician's actions were proper under Chapter 157's delegation provisions, the Texas Medical Board closed the case and convened the stakeholder's meeting.
The current version of the proposed rule would supplement the present requirements for physician delegation found in Chapter 157. The main change is a mandate that any patient receiving a non-surgical, cosmetic procedure must first be assessed and examined by the physician or, in the alternative, a midlevel practitioner acting under the delegation of the physician. The physician or midlevel practitioner is then responsible for establishing a diagnosis, obtaining the patient's informed consent, and preparing a treatment plan. Under the present law, a non-physician can arguably perform many of these functions as long as it is closely delineated by standing delegation orders and protocols developed by the physician.
The Texas Medical Board's proposed new rule also requires that either the physician or a midlevel practitioner be on-site during the performance of any delegated procedures. Additionally, the supervising physician is required to develop and maintain detailed protocols governing their delegates and must also create a quality assurance program satisfying various criteria. Importantly, the proposed rule makes clear the physician retains ultimate responsibility for the safety of the patient and the proper performance of the procedure.
Several exemptions are located in the rule: These include laser hair removal performed in accordance with the Texas Health and Safety Code, the use of nonprescription devices, surgery as defined in the Medical Practice Act, and procedures performed by midlevel practitioners at their supervising physician's primary practice site.
Although the rule has not yet been accepted by the Medical Board, I anticipate it will eventually be adopted. This has been a hot topic lately and it is clear the existing law is not satisfactory to both the Board's Members and Staff. Physicians and unlicensed individuals performing these types of procedures need to be aware of the new rule and poised to ensure they are in compliance when and if it is enacted.
The Texas Medical Board aggressively pursues perceived violations in this area and I would only expect this to increase should the rule be adopted. My firm recently represented a licensed cosmetologist who was issued a Cease and Desist Order by the Board based on their belief my client was practicing medicine in the course of providing Botox injections due to inadequate oversight by her supervising physician. Attorneys at the Leichter Law Firm filed an appeal against the Order and the Texas Medical Board agreed to rescind it based on inadequate notice to our client. Currently, the matter is expected to proceed to a new cease and desist hearing.
Physicians and their delegates concerned about remaining in compliance with both the current law and proposed new rule should feel free to contact the Leichter Law Firm at 512-495-9995. We have assisted several other clients in this area some of which faced active cases with the Texas Medical Board and others who only wanted to ensure their protocols and procedures passed muster.