The Texas Board of Nursing and the Changing Landscape of its Disciplinary Process

 

 

I have been representing nurses in disciplinary cases before the Texas Board of Nursing for over ten years. My five lawyer law firm has assisted approximately 1000 nurses in a variety of legal and nursing license matters with the Board. This includes RN’s, LVN’s and advance practice nurses such as family nurse practitioners and CRNA’s.  During this time the Board’s Staff attorneys have grown in number from 2 to 6. The Board’s general counsel (Dusty Johnston) has been a constant as has the director of enforcement and the Executive Director –Katherine Thomas. The Staff has grown in number as well with additions made in investigations, enforcement and licensing.

 

Five years ago the Nursing Board’s case log was backed up and a nurse undergoing an investigation could expect the case to drag on for three to five years. A competent attorney who was familiar with the Board’s processes could expect an informal conference to be afforded to their Client. At this conference reasonable efforts to talk, settle or have the case dismissed would occur before Formal Charges were filed and the matter was set by the nursing board’s lawyers for a contested case hearing at the State Office of Administrative Hearings –SOAH.

 

Today the Texas Board of Nursing, the enforcement division and its six lawyer Staff have a much different approach. The disciplinary case comes through investigations where it is worked up by an investigator and reviewed by a supervising investigator / team leader. While the team considers material filed by the nurse and their attorney, if there is reason to believe the nurse has violated the Nursing Practice Act the nurse is sent a proposed agreed order for their review. At this juncture one can ask for an informal conference but unless the case is practice related and the evidence is tenuous the request for an informal is unlikely to be granted. Instead, the Respondent Nurse can either accept the offer or the case will move on to SOAH for the next phase of litigation. This is an emotional and difficult decision for any nurse and their attorney.

 

If the proposed Agreed Order is rejected formal charges are filed internally with the Board and posted on the Texas Board of Nursing’s website for public viewing. Employers often balk at nurses who have formal charges filed against them and many are fired as a result even though they are just defending themselves and their license. Although the nursing license is now tagged or marked the nurse has no ability to defend their license through discovery until the Board’s attorneys docket the matter at SOAH and formal discovery begins. This is tacitly unfair but unless the nurse through her attorney requests the matter be expeditiously docketed they just remain in limbo with a mark across their license and name.

 

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The Texas Medical Board's Remedial Plan -is it really a non-disciplinary order?

 

The Texas Medical Board has a new method of resolving outstanding investigations, courtesy of the 2011 legislative session- the Remedial Plan. If you are a physician with an investigation pending before the Medical Board, you may very well encounter the Remedial Plan. They are being offered frequently. In some cases that will be good news , but contrary to how Board staff may sell it, the Remedial Plan is not suited for everyone. 

Let me give an overview of the Remedial Plan. The Board terms the Remedial Plan as a non-disciplinary order. It cannot be offered in instances where the complaint concerns a patient death, commission of a felony, or an instance where a physician becomes sexually, financially, or personally involved with a patient in an inappropriate manner. The Remedial Plan also cannot assess an administrative penalty, or revoke, suspend, limit or restrict a person’s license. Typically the Remedial Plans include continuing education and/or the requirement to take the Jurisprudence Exam. They also could include non-restrictive terms like a physician chart monitor, and they virtually always carry a $500 administration fee.

Despite the limitations on when a Remedial Plan can be offered, there are still many circumstances that qualify, and this is borne out in how frequently Board disciplinary panels are offering them. They are being offered before Informal Settlement Conferences (ISC) in an attempt to forgo the need to hold a hearing. They are also being offered at ISC’s in lieu of other discipline. This all sounds like good news. It is a “non-disciplinary” order after all. However, one corresponding trend that does concern me, as an attorney that is now encountering these Remedial Plans quite frequently, is that Panels are offering Remedial Plans in circumstances where they otherwise would have dismissed the case entirely. The Board Panels feel too comfortable offering the Remedial Plan because it is “non-disciplinary.” It seems the Board Panel can justify offering a Remedial Plan in instances where they could not otherwise justify disciplinary action. 

 

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The Texas Medical Board: Statutory Reforms to the Disciplinary Process

The 2011 regular Legislative Session resulted in a moderate reform of the Texas Medical Board’s disciplinary process. The Governor signed House Bill 680 into law on June 17, 2011. The modest reform measures that were ultimately included in HB 680 are not likely to satisfy the longtime proponents of Medical Board reform. A number of the more significant reform measures, like granting a jury trial for revoked physicians, and eliminating the confidentiality of complainants, were left on the cutting room floor. Below is a rundown of the legislative changes that were signed into law. 

First, TMB can no longer consider a complaint that is based on care that was provided more than seven years prior to receipt of the complaint by the TMB. Like any statute of limitations, the seeming purpose behind this legislation would be to protect doctors from having to defend against stale complaints about care that was provided in the distant past. Memories fade. Records get shredded (they must be kept for a minimum of seven years according to TMB rules).    This is a reasonable change and will decrease stale complaints, but complaints like this are not very common.

Second, TMB can no longer accept anonymous complaints. Some clarification is needed here. This is saying that the Texas Medical Board can no longer accept complaints in which the complainant’s identity is unknown to the TMB. The TMB can still keep the identities of complainants confidential from the physician, if the complainant so chooses. Like the first reform, this will not have a very far-reaching effect since this type of anonymous complaint makes up about 2% of all complaints. Should the complaint go to litigation the attorney representing the physician may be able to pierce the veil of anonymity if the case is to proceed to trial.

Third, a physician taking part in an Informal Settlement Conference (ISC) with the TMB may now request that the proceeding be recorded. The recording would remain part of the TMB’s investigatory file, and would thereby be confidential. Presumably this record of the meeting would act as a check on any inclination the Board might have towards bullying the physician or acting in some way that would seem to be an abuse of their power. The ISC is a legal proceeding in which a semblance of due process is afforded to the physician. At some point the recording may also be helpful should an Agreed Order be presented to the doctor that does not reflect what the panel recommended. Additionally, if the complainant waived their anonymity and made a statement to the ISC panel while being assisted by the Board’s Staff attorney this statement may become relevant if it is contradicted at a later point in the disciplinary process.

 Fourth, TMB must inform the physician when a complaint is filed by an insurance or pharmaceutical company, and must disclose the name and address of the insurance company or pharmaceutical company to the physician upon receipt of the complaint.    

Finally, after a contested case hearing at the State Office of Administrative Hearings (SOAH), TMB must issue a final Order that implements the Administrative Law Judge’s findings of fact and conclusion of law. The discretion remains with the TMB as to what the appropriate action or sanction should be if a violation is found. 

 

The Texas Medical Board's Corrective Order Explained

In 2010, the Texas Medical Board (Board) implemented a new disciplinary mechanism- the Corrective Order. Briefly, a Corrective Order is a disciplinary Order that is offered to physician  licensees before any other informal proceedings take place, with the apparent goal of settling those cases quickly, and in lieu of proceeding with an Informal Settlement Conference (ISC). 

Corrective Orders are not offered in every legal case, but rather at the discretion of the Board’s Quality Assurance Committee (QA), which is made up of a mix of Board members, District Review Committee members, and Board attorneys and other staff. Typically, Corrective Orders are offered in cases where the alleged violations rise above the ministerial discipline of the Fast-track Order, but where the factual issues are straightforward enough that QA feels they do not necessarily require a hearing.

 If the licensee signs the Corrective Order, the ISC is taken off the schedule, and the Order goes to the full Board for approval and resolution. If the licensee declines the Corrective Order, then it is taken off the table and the case is looked at afresh at the ISC. Typically, the licensee is given 20 days to decide whether to sign it or not.    

Each time a Corrective Order is signed, the Board benefits in several ways. Each signed Corrective Order helps the Board’s disciplinary numbers and reinforces the viewpoint that they are actively and successfully protecting the public’s health and welfare. Additionally, each Corrective Order that is signed means that the Board will not have to devote further resources to the investigation and informal settlement process which involves the development of a case file by the TMB Staff attorneys and legal assistants.   The benefit to the licensee is not always as clear cut. 

Upon receipt of a Corrective Order, there are a number of things that should be considered before deciding either way on it.

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What is an Agreed Order? - Texas Board of Nursing

After receiving a letter of investigation from the Texas Board of Nursing and providing their initial response, it is quite common for a licensed nurse to wait for a long time prior to hearing any additional word from Board Staff. When a response does come, however, it is often in the form of a proposed Agreed Order or even a request that the nurse voluntarily surrender their nursing license. If a nurse has not yet sought legal advice from an attorney farmiliar with professional license defense, now would be the time to do so, as signing the proposed Agreed Order is a final resolution of their case and effectively serves as an express or tacit admission that the Board of Nursing’s allegations are true.

So what exactly is an Agreed Order in the context of the Texas Board of Nursing? The Nursing Practice Act, the Board’s administrative rules, and the Administrative Procedure Act authorize a state licensing board such as the Board of Nursing to resolve disciplinary cases through an Agreed Order. By signing the Agreed Order, both the licensed nurse (LVN, RN or APN) and the Board are agreeing to a legal settlement resolving all outstanding allegations in exchange for a set of requirements or stipulations to be imposed on the nurse. These stipulations can range from the active suspension of the nurse’s license, a mandate that the licensee submit to random drug testing over a number of years, a restriction on where and when a nurse can work, supervision requirements, fines, and even demands that the licensee complete additional CE courses.

A common inquiry received by my law office is whether or not a nurse who has already signed an Agreed Order which has been ratified by the full Board can now back out of its requirements. Please know that once an order has been signed and officially entered by the Board, it is extremely difficult to negate the stipulations or re-litigate the underlying allegations with the lawyers for the Board. In a small minority of cases it may be possible to modify the Order by petitioning the Nursing Board’s Eligibility and Disciplinary Committee which typically meets every other month. However; it is very rare to even be granted a hearing before the E & D Committee let alone be granted the requested relief.

A nurse should never sign an Agreed or Voluntary Surrender Order lightly and without first seeking legal advice form a lawyer who is well versed in administrative law and nursing license defense. Otherwise they will not know if the requested Order is legally justifiable or is backed up by sufficient evidence. The Board, coming from their perspective as the protector of public safety, usually seeks, at least initially, the most severe punishment which they feel is supported by their rules and various disciplinary guidelines. Oftentimes, a nurse may be able to achieve a better result with adequate representation by an experienced professional licensing attorney. I strongly urge Texas nurses to seek legal advice before signing any proposed Order; otherwise they may find themselves regretting it later or even belatedly discover they are no longer allowed to work at their preferred place of employment. Too often I see nurses who have signed Orders which they never should have been on in the first place become trapped in a downward spiral of compliance and other issues which threaten their ability to continue practicing.

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:

  1. the licensee or applicant suffers from an addiction caused by medical treatment;
  2. 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;
  3. a court has determined that the licensee or applicant is of an unsound mind;
  4. the licensee has a physical or mental impairment as determined by an examination; or
  5. 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.  
Title 22 Texas Administrative Code § 180.1(c). Continue Reading...

What is TPAPN -The Texas Peer Assistance Program for Nurses?

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.

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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)
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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).

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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...

Temporary Suspension Hearings by the TMB: An Uphill Climb

Physician with AttorneyThe 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:

  1. 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;
  2. The suspension of the doctor's hospital privileges at whatever hospital he/she may be a member of the medical staff;
  3. The disqualification from the individuals Certifying Medical Specialty Board -Board Certification;
  4. The termination and exclusion from participation as a preferred provider by insurance companies such as Blue Cross Blue Shield & Aetna;
  5. Exclusion by the Office of the Inspector General from particpating in Federal reimbursement programs such as Medicare & Medicaid;
  6. Removal from the Approved Doctor's List of the Department of Insurance's Workers Compensation Commission;
  7. 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;
  8. 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;
  9. 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.