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...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
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.
