Research is Fundamental
Recently controversy erupted when an investigative reporter from CBS 11 discovered that a two-time Physician of the Day at the Texas Legislature, Dr. Nilon Tallant, has a criminal history. Run by the Texas Academy of Family Physicians, the Physician of the Day program consists of approximately ninety doctors who volunteer to treat patients on Capitol Grounds. Volunteers, like Dr. Tallant, are typically then introduced before the Legislature and receive official recognition for the day. An embarrassed Academy and Legislature are now trying to shift responsibility for their own oversight onto the Texas Medical Board.
Critics of the Board blame their ignorance of the criminal conviction on the lack of information on the TMB’s website regarding Dr. Tallant’s “self-reported” criminal history contained on his online physician profile. While true, this contention ignores the fact that there is ample information on Dr. Tallant’s conviction and Board disciplinary history readily available on the TMB and State Office of Administrative Hearings websites. The same online profile with a blank space under the section for self-reported criminal history notes that Dr. Tallant’s medical license was revoked from 1996 to 2001. Anyone performing a background check would presumably be interested in knowing the basis of the revocation. In fact, on the same page the profile contains a link to Dr. Tallant’s complete disciplinary history before the TMB including the original 1996 order expressly revoking his medical license based in part on his plea of guilty to criminal charges. At least two other modified orders from 2000 and 2001 similarly note his conviction.
Continue Reading...SBDE: Informal Conferences & Disciplinary Proceedings
Disciplinary actions before the Texas State Board of Dental Examiners are covered by the Texas Occupations Code and the Dental Board’s own administrative rules. Common grounds for discipline include
- Criminal charges including arrests deferred adjudication probations and convictions including DWI;
- Substance abuse, chemical dependency or the intemperate use of controlled substances;
- Unprofessional conduct;
- Fraudulent billing practices;
- Non-therapeutic or over prescribing;
- Discipline by a peer group or other State Licensing Board;
- Standard of care violations including:
- Failure to obtain appropriate informed consent;
- Inappropriate or non-clinically indicated treatment;
- Failure to provide the patient with an appropriate treatment plan;
- Failure to obtain the patient’s clinical / medical history and obtain and document blood pressure and medications used;
- The provision of care and treatment that falls below the standard of care
The resulting sanctions for violations proved can be severe including an administrative penalty, public reprimand, probation, suspension, or the outright recommended revocation of a practitioner’s license.
A disciplinary proceeding begins with a complaint. Complaints can come from different sources: colleagues- who, under the Dental Practice Act, are required to report certain conduct to the Board- patients, disgruntled family members, peer assistance groups such as Professional Recovery Network, and other states’ licensing authorities. Upon receipt of the complaint, Board Staff will first decide whether they have jurisdiction over the matter, and if they do, initiate an investigation. During the investigation the license holder will be given a copy of the complaint and be asked to return a written preliminary response to the allegations. At this point the Staff will decide whether to publicly dismiss the complaint or pursue a disciplinary proceeding. If the Board determines during the investigation that the continued practice of a license holder constitutes a clear, imminent, or continuing threat to the public, the dentist’s license may be temporarily suspended before a hearing has been held.
Continue Reading...Deferred Adjudication Probation & Discipline by State Licensing Boards
Last week I resolved three cases involving pleas of guilty or no contest to drug / alcohol related offenses and the subsequent investigations and prosecutions by the individual Client’s respective State licensing Board(s):
- The Texas Optometry Board
- The Texas State Board of Pharmacy
- The Texas Medical Board
In each case, although the Board did not have jurisdiction to discipline for the criminal status in-and-of-itself, each agency found a way to link the conduct (the actions behind the commission of the criminal offense) to the Client’s occupational practice and attempt to resolve the matter through a reasonable agreed order.
Neither the Texas Pharmacy Act nor the Texas Optometry Act afforded jurisdiction to the agency to discipline the license holder for the court ordered felony deferred adjudication probation(s). However, public scrutiny being what it is, each Board simply stated that the conduct was egregious and unbecoming of a licensee. Moreover, the Board’s mission was to protect the public and each agency felt this was something the public should know about.
Continue Reading...Chemical Depndency, PRN and The State Board of Dental Examiners
Functioning under the authority of Chapter 467 of the Texas Health and Safety Code, the Professional Recovery Network (PRN) provides intervention, treatment & continued support and advocacy to dentist’s suffering from chemical dependency and/or mental illness with the goal of integrating them back into professional practice. Due to its confidential nature, the PRN offers an incentive for impaired dentists to commit to a program of recovery thereby avoiding potential harm to the public or themselves.
Entry to the program begins with a report to PRN. Concerned colleagues, friends, and family may report the dentist to PRN if they have information relating to the professional’s impairment due to mental illness or chemical dependency. In fact, a license holder who is required to report knowledge of an impaired professional satisfies that mandate if they refer the dentist to PRN. Frequently the dentist will self-refer themselves to the program, an avenue which is highly encouraged and can lessen the chance of a later disciplinary sanction. The Texas State Board of Dental Examiners also has the option to refer impaired professionals in lieu of a disciplinary action.
Once PRN receives a report they will contact the dentist and send them to an evaluation by a mental health professional. After evaluation, the license holder will sign a Recovery Support Agreement with the program committing themselves to treatment and a continued aftercare plan of recovery and also authorizing PRN to disclose their records if they drop out of the program or otherwise fail to adhere to their contract. This Agreement will outline the proposed treatment and incorporate recommendations made by the evaluator. By entering into the Recovery Agreement, the dentist consents to maintaining contact with the PRN Staff and an assigned mentor, writing quarterly recovery reports, and, if appropriate, undergoing random drug screens. The pharmacist’s mentor, who is a dentist with either a long history of sobriety or extensive experience in a twelve-step or similar recovery program, is there to support, advise, and advocate for the professional throughout treatment.
Continue Reading...Pharmacists: Addiction, Mental Health & PRN
Authorized under Chapter 564 of the Pharmacy Act, the Professional Recovery Network (PRN) offers a means for chemically dependent and/or mentally ill pharmacists and pharmacy students to confidentially enter a recovery program with the goal of integrating them back into professional practice. Founded by the Texas Pharmacy Association, PRN provides an incentive for pharmacist’s suffering from mental illness or chemical dependency to commit to early treatment and thereby avoid additional harm to the public and themselves.
A person who has who has knowledge of an act or omission by a pharmacist that could provide grounds for discipline under Section 565.001(a)(4) or (7) of the Pharmacy Act- mental illness and intemperate use of drugs or alcohol respectively- may report the license holder to the PRN. In addition to such reports by concerned colleagues and family members, pharmacists and students are encouraged to self-report to PRN. The Pharmacy Board may also refer the professional to PRN in lieu of a disciplinary proceeding. Once PRN receives a report they will contact the pharmacist, if it was not a self-report, and refer them to a mental health evaluator. After meeting the mental health evaluator, the pharmacist will enter into a Recovery Support Agreement with the PRN committing themselves to treatment and recovery. The Agreement will outline the proposed treatment program and include specific recommendations made by the evaluator. By entering into the Support Agreement, the pharmacist or student will also consent to maintaining contact with the PRN Staff and an assigned mentor, providing written quarterly reports, and, if appropriate, undergoing random drug screens. The pharmacist’s mentor, who is either a pharmacist with a long history of sobriety or extensive experience in a twelve-step program, is there to support, advise, and advocate for the professional throughout treatment.
Continue Reading...Internet Pharmacies: TSBP & Federal Investigations & Prosecutions
A combination of increased competition from large chain brick-and-mortar pharmacies, mail-order refills, and the rise of the internet as a medium for both legal and illegal activity have driven many unsuspecting pharmacists into the dangerous world of “internet pharmacy.” Since at least 1999, various federal agencies led by the Drug Enforcement Agency and the FDA have combined efforts with state law enforcement and state licensing boards to crackdown on internet pharmacies. The result has been the revocation of professional licenses, stiff fines, and long prison sentences. Many of the pharmacists victimized by this legal dragnet have been severely prosecuted simply because they failed to exercise enough caution when entering the minefield of internet pharmacy.
The target of these law enforcement and regulatory efforts follows a typical pattern of organization and prescription/dispensing process. Oftentimes pharmacists and physicians will be approached by a “facilitator”, which may be in the form of a corporation or other entity who are seeking licensed medical personnel to participate. Fees are often paid on a per prescription basis and can be supplemented with generous handling fees for the pharmacists and consulting fees for the doctors. Such facilitators will point to doctors and pharmacists who have already signed on to give their business plan a deeper air of legitimacy and better induce the medical professional(s) to join.
Once the internet pharmacy contracts the necessary professionals, the prescription and dispensing of controlled substances begins. The patient, who may or may not be legitimate, first tries to order a drug online and is then asked to fill out a preliminary questionnaire which will be viewed by a physician. This doctor, who usually never sees the patient and often lives in a different state, reviews the questionnaire and prescribes the requested medication. The prescription is then transmitted to the pharmacist, who can be in yet another state, who fills it and ships it to the patient. Unfortunately, this process, especially the absence of a proper examination and diagnosis, violates most States’ regulatory rules and exposes all participants to administrative and criminal action.
Continue Reading...What is a Confidential Rehabilitation Order?
In lieu of public discipline, the Texas Medical Board has the option of offering a Confidential Rehabilitation Order (Private Order) to a physician who suffers from certain drug or alcohol related problems and/or mental health problems or disorders. Outlined under Title 22, Section 180.1 of the Texas Administrative Code, the purpose of an order is to create an incentive for a licensee or applicant to self-report and seek early assistance / treatment, thereby avoiding any harm to the public due to the deterioration of the physician’s ability to practice medicine. Successful completion of a Confidential Rehabilitation Order serves as an alternative to a public disciplinary order which must be reported to the National Practitioner Databank and can have adverse effects on a medical doctor’s ability to practice. A Private Order is Non-Public so there is no way the public, prospective employer’s or other health care entities should know that the physician’s medical license is subject to a Board Order.
The regulatory guidelines regarding who is eligible and under what circumstances a Confidential Rehabilitation Order can be issued are complex. An experienced attorney can help guide a physician through this process, accumulate supporting documentation, and ensure the licensee does not make a decision that will make them ineligible for a private order.
The issuance of a Confidential Rehabilitation Order is at the sole discretion of the Board. Under the Board’s rules, Staff and the Board may consider issuing a private order when:
- the licensee or applicant suffers from an addiction caused by medical treatment;
- the licensee or applicant self-reports intemperate use of drugs or alcohol and has not been the subject of a previous Board order related to substance abuse;
- a court has determined that the licensee or applicant is of an unsound mind;
- the licensee has a physical or mental impairment as determined by an examination; or
- a licensee or applicant admits to suffering from an illness or a physical or mental condition that limits or prevents the person’s practice of medicine with reasonable skill and safety.
What is TPAPN -The Texas Peer Assistance Program for Nurses?
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Established under Chapter 467 of the Health and Safety Code, TPAPN is a state-approved peer assistance program for Texas nurses. Operated by the Texas Nurses Association, TPAPN offers licensed nurses who are impaired by chemical dependency or mental illness an opportunity to undergo treatment and to safely return back to nursing practice -all under the protection of confidentiality.Available to Licensed Vocational and Registered Nurses who are diagnosed with substance abuse, chemical dependency, anxiety disorders, major depression, bipolar disorder, schizophrenia or schizoaffective disorder, program participation is an alternative to being reported to the Board of Nurse Examiners. A nurse suffering or who thinks they may be afflicted with one of the above diagnoses can either self-report or be referred to TPAPN by their employer. Completely voluntary, the program allows a nurse who has entered TPAPN to decline to participate or withdraw at any time. However, failure to adequately fulfill the TPAPN contract may result in a report being generated to the Texas Board of Nurse Examiners.
The self-proclaimed goal of the program is to provide an effective channel for recovery from chemical dependency and/or mental illness and effective re-integration back into nursing practice, thus protecting the public and providing incentives for professional accountability. Once in TPAPN, the nurse is assigned a case manager with extensive academic and clinical expertise in chemical dependency and psychiatric nursing. The program also includes advocates, LVN and RN volunteers who are there to support nurses throughout the program. Advocates create another layer of support for when a nurse’s case manager is not available.
Continue Reading...DWI: Medical Licenses & Physician Discipline
The Texas Medical Board does not have the power to discipline a physician’s medical license / registration for an isolated arrest and subsequent conviction for driving while intoxicated. However, Board Staff will open an investigation into all physicians who have been arrested for DWI to determine if the physician suffers from a medical or physical condition which may impair their ability to practice or during the commission of the DWI they committed unprofessional conduct.
The Texas Medical Practice Act (Texas Occupations Code § 164.051) and the Medical Board’s Rules found in the Texas Administrative Code (Title 22, Part 9, Rule 190.8) are the guiding statutory for the Board’s ability to investigate and discipline a physician’s license for the offense of DWI. Per the Medical Practice Act the Board lacks the jurisdiction to impose discipline for a DWI offense that “stands alone” as it is neither a felony nor a crime of moral turpitude (Tex. Occ. Code § 164.051(a)(2). However, if an investigation yields that a physician was on call, subject to duty or scheduled to work soon after the time of arrest the following potential violations will be explored:
- implications of unprofessional conduct (Prohibited Practices § 164.052(5)
- the possibility of the physician’s use of alcohol or drugs in an intemperate manner that in the Board’s opinion could endanger a patient’s life ( Prohibited Practice § 164.052(4)
What is Ethylglucuronide -EtG Testing?
Ethyl Glucuronide (EtG) is a metabolite created by the body following alcohol consumption. Testing for this metabolite, typically via a urine sample, has become increasingly prevalent in the United States following its initial approval and use in Europe especially by agencies concerned with monitoring an individual for any relapse or return to active drinking. Many favor EtG sampling because it is a “direct” test for alcohol consumption in contrast to older, more traditional tests like Gamma Glutamyl Transferase or Carbohydrate-Deficient Transferrin which look for indirect signs of alcohol use such as liver damage. Further, while older tests generally only become positive following heavy alcohol use, EtG can be present in the urine after only a single drink. Moreover, EtG remains in the body and is detectable in urine three to five days after consumption
Unfortunately, EtG testing has several serious short-comings that limit its viability as an stand-alone objective marker of recent alcohol consumption and relapse. In the area of medical testing, a test is characterized by two qualities: sensitivity and specificity. Sensitivity measures the ability of the test to correctly identify those individuals who do have the condition of interest, here relapse, while specificity measures the ability of the test to correctly identify those persons who do not have the condition of interest. EtG testing has a high sensitivity, that is it has a high probability of correctly identifying as positive an individual who has recently relapsed. However, it also has a low specificity, that is it has a high probability of showing as positive a person who has not recently consumed alcoholic beverages. For example, research has shown that use of everyday items such as bug spray, mouth wash, various over-the-counter medicines, and hand sanitizer can produce positive results. Additionally, without further research, testing facilities have been unable to arrive at a consensus on the level of EtG that should be considered positive for a relapse. The high level of false positives seriously undercuts its status as a viable test for relapse and can easily lend itself to abuse by monitoring agencies such as the Texas Medical Board or the Texas Board of Nursing (Formerly known as the Texas Board of Nurse Examiners).
Continue Reading...DWI & Nursing License Discipline by the Texas Board of Nurse Examiners
Although initial arrests and convictions for Driving While Intoxictated (DWI) will not ordinarily result in the imposition of a disciplinary sanction against a Texas Nurse, they often do give rise to a stressful and searching investigation by Staff of the Board of Nurse Examiners. This result is due to, on the one hand, the legal fact that under the Nursing Practice Act, many DWI’s do not relate to the practice of nursing, and on the other, the practical reality of the Nursing Board’s zealous policing of what it deems unprofessional conduct (Texas Occupation Code § 301.452(b)(10). A knowledgeable attorney can best secure a positive outcome by ensuring that the correct standard is applied and not substituted by the Board’s personal opinion(s) on what constitutes unprofessional or dishonorable conduct.
Under the Nursing Practice Act the Board can take disciplinary action against a licensee if a nurse has been convicted or placed on deferred adjudication for either a felony or a misdemeanor involving moral turpitude. (Texas Occupation Code § 301.452(b)(3)). An individual’s first two DWI’s are misdemeanors under the Texas Penal Code with the third and all those thereafter rising to felonies. From a legal standpoint, however, the Nursing Board’s broad discretion to take disciplinary action under the Nursing Practice Act is limited by the Texas Occupation Code’s prescription that discipline can only be imposed if the felony or misdemeanor “directly relates to the duties and responsibilities of the license holder.” (Texas Occupation Code § 53.021). In deciding this issue, the Board must weigh certain factors such as “the relationship of the crime to the purposes for requiring a license to engage in the occupation” and “the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation.” (§ 53.022)
Board Staff’s policy, however, is to initiate an investigation into a nurse’s fitness and character if they have two or more criminal arrests for alcohol or drug related offenses in a lifetime. Board Staff does not seem to differentiate between arrests, deferred probations, regular probations, dismissals and final convictions with respect to opening an investigation. Once the investigation is initiated, Board Staff tries to force the nurse into a forensic psychological evaluation and polygraph test in an effort to determine if the license holder suffers from a DSM IV diagnosis of chemical abuse or dependence. Unfortunately, any other conduct or psychiatric disorder discovered through this battery of questionable discovery is then utilized to stipulate the nurse’s registration. Board Staff is successful in this less than admirable procedure as many nurses think they do not need or can not afford an attorney. Competent, experienced counsel however, can put a halt to this process and mount a successful defense against Board Staff’s position that all criminal conduct is unprofessional and therefore relates to the practice of nursing. Moreover, a knowledgeable attorney will know how to circumvent Board Staff’s insistence that the Nurse undergo an evaluation with a “Board Approved” expert and then submit to the rigors of a “qualifying” polygraph examination.
Continue Reading...Timely License Renewal Under the Texas Administrative Procedure Act
The Texas Administrative Procedure Act (APA) offers a ready incentive for a licensee such as a doctor or nurse to seek prompt renewal of their license if they face or expect to face a disciplinary action before their respective state licensing board. Chapter 2001.054 of the Texas Government Code (The Administrative Procedure Act) provides a special rule when the professional’s license renewal is contested by the applicable administrative agency and such agency is required to provide timely notice and an opportunity to be heard, two conditions that apply to virtually every disciplinary action. When such a licensee applies for renewal, their existing license automatically remains in effect until their application has been finally determined by the state agency. Further, if the state agency decides to deny or limit the terms of the new license, the professional’s existing license does not expire until the last day for appealing the agency order or other date set by the reviewing court, whichever is later.
Thus a doctor who expects the Texas Medical Board to deny the renewal of their professional license or to take other disciplinary action against them should timely apply as they will still retain and be able to practice under their existing license. The same situation applies to a nurse facing disciplinary action by the Texas Board of Nurse Examiners, an optometrist in front of the Texas Optometry Board, a dentist before the Texas State Board of Dental Examiners, and other licensed medical and non-medical professionals. Continue Reading...Physician in Training Permit Applications: A Guide to the Basics
The Texas Medical Board issues Physician-in-Training permits (PIT Permits) pursuant to Texas Medical Practice Act section 155.105 and Texas Medical Board rules found in the Texas Administrative Code under 22 TAC Section 9 Chapter 163. The PIT permit is required for graduates of a United States or Foreign Medical School who wish to pursue a residency or post-graduate fellowship in Texas who do not possess a Texas Medical License due to ineligibility or a pending application. Although the application for a Physician-in-Training permit is not as cumbersome, tedious or labor intensive as a full physician registration, medical doctors often find themselves needing to go before the Texas Medical Board’s Licensure Committee to explain their good professional character or clinical competence due to:
- Academic difficulties in medical school including poor performance or discipline as evidenced by the applicant’s academic transcript from the third or fourth year of medical school;
- Problems in a post-graduate residency program including failing grades, poor performance, or discipline by the medical faculty;
- Physician discipline from a medical staff, denial by a credentialing committee or other discipline by another state licensing board;
- Criminal convictions involving dishonesty, moral turpitude, controlled substances or alcohol;
- Mental illness which rises to the level of requiring the Applicant to demonstrate their ability to practice medicine with reasonable skill and safety;
- Falsification of information on the Physician-in Training application;
- Malpractice claims, lawsuits and judgments
- Perceived statutory ineligibility.
