Expunctions: Disclosure, Discipline & The Texas Board of Nurse Examiners
The Texas Code of Criminal Procedure Chapter 55, Article 55.04 forbids a State Agency from using, questioning an individual about, or in any way releasing information about an arrest that has been expunged pursuant to the provisions of Chapter 55. Moreover, Tex. Code Crim. Proc. § 55.03 provides that the effect of an Expunction Order in a licensure disciplinary proceeding, including the application process, allows for the individual to deny the arrest and the existence of the Order of Expunction. However, the Texas Board of Nurse Examiners (BNE) requires that a licensed nurse or nursing license applicant disclose the existence of the arrest on renewals and initial license applications. It is undetermined if they seek to utilize these arrests against the nurse in a disciplinary proceeding or as a basis for the denial of a license. However, the mere thought that the registration renewals or applications ask about information which if utilized would subject members of Board Staff to criminal sanctions raises a few alarming concerns.
BNE & Criminal History -Public Image or Public Safety?
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The Board of Nurse Examiners for the State of Texas received authorization and funding from the legislature to undergo complete criminal history and background checks on every nurse in the State of Texas. Accordingly, every LVN and RN in Texas will be required to submit a fingerprint card to the BNE over the next ten years. The cards will be submitted to the FBI and the Texas Department of Public Saftey for verification and accuracy of the Nurse's identity and criminal history. Ten percent of nurses will be required to undergo this scrutiny per year until all licensees have been evaluated. This has created a marked rise in investigations and disciplinary orders. There are several inherent problems with this process however, and nurses should seek advice from an experienced lawyer before they accept a proposed disciplinary sanction that will mar their record indefinitely.
To begin, the BNE did not acquire jursidiction over deferred adjudications until September 1, 2005. Staff of the Board however, is investigating offenses that resulted in deferred adjudication probations and dismissals that are more than twenty years old. This week alone I received calls from two LVNs who had just such misdemeanor criminal records and were being investigated by the BNE. Board Staff, including the Attorneys, readily admit they did not and do not have substantive jurisdiction over the criminal history, but maintain they are concerned about the conduct or the psychiatric disorder that may be reflected by the offense and the behavior. The fact is both of these nurses have renewed their licenses for the last twenty (20) years and have never been required to reveal this history. Additionally, both have practiced nursing without incident during this period and each has had exceptional performance appraisals from all employers. Why then is the BNE delving into these issues when all of their investigators have such large case loads that they can not adequately work up a case? The answer is simple -Public Image.
Continue Reading...Temporary Suspension Hearings by the TMB: An Uphill Climb
The Texas Medical Board (TMB) pursuant to the Medical Practice Act section 164.059 has the authority to temporarily suspend a physician's license to practice medicine with or without notice if the physician poses a real and imminent threat to the public through his/her continuation in practice. Although the evidentiary threshold is more stringent than in disciplinary matters, the panel who decides the physician's fate is comprised of three members of the Texas Medical Board and not an independent and neutral Administrative Law Judge. Needless to say, Staff of the Board rarely loses when it decides to remove a physician from practice through the utilization of its emergency suspension powers. Generally, the Board will invoke this authority for the following types of violations and acts:
- Excessive or intemperate use of drugs or alcohol that in the Board's opinion could endanger a patient's life;
- Non-Therapeutic precribing practices;
- Untreated mental illness;
- Repeated standard of care violations;
- Repeated and dramatic boundary violations.
What is not apparent to most physicians who are faced with this process or loss, are the ramifications which follow the entry of an order temporarily removing the physician from practice. When the hearing is with notice or a noticed hearing is waived in an effort to remedy the problem and settle the case for an Agreed Disciplinary Order at a later date the following consequences will ensue:
- The return of the physician's Drug Enforcement Adminstration & Department of Public Safety Controlled Substances Registrations and the potential long term loss of such privileges;
- The suspension of the doctor's hospital privileges at whatever hospital he/she may be a member of the medical staff;
- The disqualification from the individuals Certifying Medical Specialty Board -Board Certification;
- The termination and exclusion from participation as a preferred provider by insurance companies such as Blue Cross Blue Shield & Aetna;
- Exclusion by the Office of the Inspector General from particpating in Federal reimbursement programs such as Medicare & Medicaid;
- Removal from the Approved Doctor's List of the Department of Insurance's Workers Compensation Commission;
- A swarm of negative press as the TMB issues press releases to the physician's local paper and television networks and such stories often make front page headlines;
- The filing of new and otherwise unremarkeable law suits as a result of the now publicly disclosed negative information regarding the physician's character or practice;
- A wave of new Complaints & Investigations to and by the TMB as patients who were otherwise unknowing or on the fence now feel justified in coming forward.
Surrendered Licenses & OIG Medicare Exclusions
Consider this scenario: You lose your medical (nursing, pharmacist, etc.) license to practice, so you move states in order to escape the ramifications of a surrendered or revoked license.
Unfortunately, the ramifications of your lost professional registration may follow you in the form of an exclusion. An individual subject to an exclusion is significantly limited in her ability to work in the health care profession nationwide. The purpose of the exclusion remedy is to protect beneficiaries of Federal health care programs from incompetent practitioners and from inappropriate or inadequate care. In the broadest sense, a section 1128 exclusion prevents individuals and entities from participation in Medicare, Medicaid and State health care programs. However, this does not affect your rights to participate as a beneficiary (i.e., if you break your arm and Medicaid normally pays, then you can still collect these benefits).
According to 1128(b)(4) of the Social Security Act, an individual may be excluded from participation in any Federal health care program if that person’s license was revoked, suspended, or otherwise lost, or because it was surrendered while a formal disciplinary proceeding was pending before an authority and the proceeding concerned the individual's professional competence, professional performance, or financial integrity. The Office of Inspector General (“OIG”) will generally send you a letter informing you that you may be excluded from health care programs including:
- Medicare
- Medicaid
- Veterans Administration
- TRICARE, etc.
The Social Security Act allows the OIG to exercise discretion when deciding whether or not to exclude individuals from participating in Federal health care programs. Even if the OIG decides to exclude you, they also have discretion to determine the length of the exclusion. Of course there are guidelines and considerations, such as:
- the nature of the act that gave rise to the exclusion;
- length of license suspension;
- criminal history, and;
- the availability of other sources of the type of health care services furnished by the individual.
