The National Resident Matching Program and Common Problems to Avoid

The National Resident Matching Program (NRMP) is the non-profit, non-governmental organization that facilitates the annual “match” between medical students and residency programs. Created in 1952, it was implemented to make the process more streamlined, and initially to ease the competition between programs in filling available positions. While it has changed over the years, the NRMP employs a matching algorithm to match qualified students and programs together. Taking part in the match process requires both the program and the student to enter into a Match Participation Agreement with the NRMP that makes the NRMP’s match a binding commitment. Neither the program, nor the student, can unilaterally break the match, though either party can apply for a waiver of the binding commitment if either side can demonstrate serious or extreme hardship as a result of the match.   

The Match Participation Agreement also designates conduct that constitutes a violation of the agreement, and for those violations, the NRMP can impose some very serious penalties. For example, any incident decided to be a violation by the NRMP will result in a Final Report detailing the participant’s transgressions, which is sent to the applicant’s medical school, the American Board of Medical Specialties, the residency program, the Federation of State Medical Boards, and others. Other possible penalties include being barred from participating in future NRMP Matches for up to three years, or being barred from accepting a position with any residency program that participates in the NRMP Match. For medical students, the Match is just about the only game in town, especially for M.D.’s, and a prohibition from participating in the Match, or from accepting positions in Match-associated programs, has the potential to throw a giant wrench into one’s medical career just as it is getting started. 

The best way to avoid such consequences is to avoid violations of the Match Participation Agreement, which include: failure to provide complete, timely and accurate information during the match process; attempts to subvert the match process; failure to accept an appointment; and any other irregular behavior. The issues that we come across most frequently are an applicant’s alleged failure to provide complete, timely, and accurate information relating to disciplinary action that they faced at some point in their medical education.   If a residency program makes a fuss about the completeness of an applicant’s disclosures, the NRMP can use their broadly worded Agreement to initiate an investigation. As we stated above, the consequences can be great, including banning an applicant from the Match for a term of years (or life), or decreeing that the applicant cannot take a position with a program that participates in the Match.   

If you are a physician Match-applicant who has run afoul of the NRMP, please consider hiring an experienced healthcare law attorney to assist you. The consequences of NRMP sanctions can be great, especially at this formative stage in your career. Contact the healthcare law attorneys at the Leichter Law Firm, PC, at (512) 495-9995.

 

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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Criminal Prosecution of Pain Management Physicians by State and Federal Law Enforcement is on the Rise

 

There has been a recent and rapid rise in the number of physicians being prosecuted for the alleged non-therapeutic prescribing of controlled substances under both state and federal law.  In the last week alone I have received numerous phone calls from a variety of medical and osteopathic doctors who had been arrested and/or indicted by the federal government or a local law enforcement branch after a joint investigation by a task force of state and federal agencies such as the Texas Medical Board (TMB), Drug Enforcement Administration (DEA), a local sheriff’s and/or police office and the State Board of Pharmacy. These individuals are being charged by prosecuting attorneys in United States District Court (Federal Court) with crimes under the Federal Controlled Substances Act or in State Court for violations of the Health and Safety Code and the Medical Practice Act. In most cases the basic charge is the delivery of a prescription (to a patient and within the context of the physician’s medical practice) for a controlled substance without a valid therapeutic purpose. Many of the physicians I spoke with questioned why and how the government can substitute its’ clinical judgment for the physicians.  Essentially this amounts to a physician being prosecuted and jailed for a standard of care based decision that was once a purely civil or administrative inquiry. My law practice has been handling these cases for years and over the last year the number of inquiries to our attorneys has increased tenfold suggesting the marked rise in government prosecutions is very real. 

Oftentimes the Government relies on the sheer number of prescriptions written or the types / combinations of medications prescribed to make its’ case. It then utilizes experts to opine that a reasonable physician would not prescribe this combination of medications to this many patients and thus the treatment of patient X was non-therapeutic. This is a questionable way to go about proving a case, but it does not stop the Government from doing its investigation, arresting the doctor, forcing the surrender of their DEA issued controlled substances registration, initiating the inevitable discipline and loss of the physician’s medical license and the consequent destruction of their medical practice pending prosecution(s).  While violations of the administrative rules surrounding the handling and use of prescriptive authority carry civil and administrative monetary provisions, violations of a state or federal statute mean confinement upon conviction and the inevitable loss of the physician’s career in medicine. For many physicians the result has been the very conservative treatment of patients and arguably the under treatment of both acute and chronic pain. I have thankfully yet to see the government pursue a case that involved palliative care.

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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. 

 

Texas Medical Board Cancels Meeting Rescheduling All Applicants & Appearances

The Texas Medical Board (TMB) cancelled the appearance of all physician licensure candidates scheduled to appear before the Board’s Licensure Committee at its February 3 and February 4th meeting due to inclement weather. The applicants have been rescheduled until the April Board meeting. This will result in the scheduling of probably 40 to 50 applicants at the April meeting.  

The Leichter Law Firm is the attorney of record for at least 5 of the doctors including one who has filed a meritorious Motion for Rehearing after a denial from the October meeting of the Texas Medical Board. This is an unfortunate event for at least one-half of the applicants many of who have qualified for a full Texas medical license in every respect,  but are waiting to challenge a contention by Texas Medical Board Staff Attorneys that they have submitted false or misleading information on their physician application. As a result they can both sign an administrative order and pay a fine which results in a permanent disciplinary action on their record, or they can challenge the agency’s initial or preliminary determination and appear in front of the Licensure Committee in support of their cause/application.  As an Agreed Order of Licensure is a permanent blemish on a doctor’s record, most physician applicants asked to appear before the TMB retain experienced Texas medical board defense attorneys to represent them through the process.

The portions of the Texas Medical Board meeting which could be conducted through phone conferencing was achieved such as the processing and ratification of disciplinary orders and the discussion and adoption of guidelines for mediations of contested cases at the State Office of Administrative Hearings (SOAH). Unfortunately, all appearances before the Board were rescheduled which will result in even more work for the already busy Texas Medical Board members and Staff attorneys. Also rescheduled were all events which required live appearances or witnesses were rescheduled. 

The Board and Staff made the decision to cancel early on Tuesday which buy first impressions seemed premature. As the weather developed and snow, freezing temperatures and ice invaded the Austin and central Texas area it became clear that a wise decision was made –albeit to the disappointment of all of the physician applicants scheduled to appear. 

One Rule to Catch Them All: Licensing Board's Use of Unprofessional Conduct

 

As a general rule, licensing Boards such as the Texas Medical Board, Texas Board of Nursing and Texas State Board of Pharmacy are prohibited from exceeding the powers granted to them by the Legislature. The Legislature passes enabling statutes that create the licensing Boards and circumscribe their jurisdiction. The Boards may then pass administrative rules expounding and filing in the blanks of areas which the Legislature has order them to regulate. These rules cannot conflict with the statute, however, and are, in fact, subordinate to it. Thus, if the Legislature did not give them the power to regulate a particular activity, the Boards generally cannot expand their jurisdiction to regulate that activity by adopting an administrative rule. Problems arise, however, when the statutes are imprecise or vague in limiting the Boards’ powers.

 

Given the multitude of laws instituted by our Legislators, imprecise and vague definitions are bound to crop up. Such is the case with the term “unprofessional conduct.” As an example, the Medical Practice Act allows the Texas Medical Board to discipline its licensees if they commit “unprofessional or dishonorable conduct that is likely to deceive or defraud the public, or injure the public.” Tex. Occ. Code 164.052(a)(5). Note that there need not be any actual harm done. While the statute goes on to give some guidance as to what conduct deceives or defrauds the public (Tex. Occ. Code 164.053) it gives us no definition of what constitutes unprofessional or dishonorable conduct that is likely to injure the public. 

 

Similarly, the Texas Board of Nursing is allowed to discipline nurses for unprofessional or dishonorable conduct that, in the board’s opinion, is likely to deceive, defraud or injure a patient or the public. Tex. Occ. Code 301.452(b)(10). Likewise, the Texas State Board of Pharmacy can discipline its licensees for both unprofessional conduct and gross immorality. Tex. Occ. Code §§565.001(a)(2)-(3). Troublingly, the Legislature appears to have left it in the hands of the Pharmacy Board to determine the definition of unprofessional conduct and gross immorality. 

 

How do the licensing Boards use this power? The Boards have frequently used this provision as a hook to discipline licensees over whom they would otherwise have no statutory power. For example, the Medical Board is explicitly allowed to discipline licensees for convicted misdemeanors if the misdemeanors can be related to their practice as a physician (Tex. Occ. Code § 53.021(a)(1)) or involve “moral turpitude” (Tex. Occ. Code § 164.051(a)(2)(B)). Moral turpitude is another vaguely defined term; it is generally implicated in crimes involving fraud or deceit but is otherwise difficult to characterize and apply. Regardless, by classifying other misdemeanors as “unprofessional conduct”, however, the boards can extend their powers beyond the limits set by the Legislature.

 

The Board of Nursing, which is subject to similar statutory restrictions, has labeled “unprofessional conduct” such misdemeanors as possession of an unlicensed firearm, criminal mischief, obstruction of a highway, and criminal trespass, none of which are a crime relating to the practice of nursing or classified as an offense of moral turpitude. I have also encountered cases where the Board was reluctant to license an individual or wished to impose discipline based on conduct which is not even criminal, such as a client’s former employment as a stripper or a person’s private conversations on an internet social networking site. Furthermore, I have seen multiple situations where a client is being pursued due to what is essentially an employment dispute, such as lying on an initial application, an area over which the Board involved likely has no jurisdiction.  

 

In conclusion, licensing Boards frequently utilize this method as a means to expand their jurisdiction beyond their enabling statutes. “Unprofessional conduct” is used as a pretext to regulate licensees for activities that do not involve the licensed occupations at all. If you are facing an investigation or disciplinary matter before a state agency and feel the basis of their action has no relationship or bearing on your license or practice, you very well may be right and would be wise to contact an attorney familiar with the respective Board’s statutes and disciplinary process.

Temporary Suspensions Rise Sharply at the Texas Board of Nursing

 

Recent months have seen a sharp upswing in the Board of Nursing’s use of temporary suspension as a disciplinary measure against licensees including RN’s LVN’s, APN’s and CRNA’s. This is likely due to an influx of new attorneys, investigators, and other staff at the Nursing Board. Temporary suspension is authorized by the Nursing Practice Act (The Act), Section 301 of the Occupations Code. Tex. Occ. Code § 301. The Texas Legislature has carved out two specific areas in which temporary suspension is mandated: continuing and imminent threats to the public welfare, and “intemperate use” cases. Tex. Occ. Code § 301.455 and 4551.

First, temporary suspension is required by the Act “on a determination by a majority of the board or a three-member committee of board members designated by the board that, from the evidence or information presented, the continued practice of the nurse would constitute a continuing and imminent threat to the public welfare.” Tex. Occ. Code § 301.455(a). The Texas Legislature has also authorized the Board of Nursing to suspend or restrict a license without notice or a hearing, provided that two conditions are met. Tex. Occ. Code § 301.455(a). First, institution of proceedings for a hearing before SOAH must be initiated simultaneously with the suspension, and second, a hearing must be held “as soon as possible under this chapter and Chapter 2001, Government Code.” Tex. Occ. Code § 301.455(b)(1) and (2).Our lawyers have seen a number of cases in which a temporary suspension on this basis resulted from allegations of egregious sexual misconduct, serious criminal charges, and violence.

Second, Section 301.4551 mandates temporary suspension of a license for so-called “intemperate use” cases. These cases concern nurses who are subject to a board order prohibiting the use of alcohol and nonprescribed drugs or requiring participation in a peer assistance program. Tex. Occ. Code § 301.4551. The Board may temporarily suspend the license of such a nurse if the nurse in question tests positive for alcohol or a prohibited drug, refuses to comply with a board order to submit to a drug or alcohol test, or fails to participate in the peer assistance program and the program issues a letter of dismissal and referral to the board for noncompliance. Tex. Occ. Code § 301.4551. Our law firm has seen numerous cases in which a nurse is placed on temporary suspension if that nurse shows a pattern of repeatedly engaging in intemperate use of alcohol or other prohibited drugs, especially while at work.

Once an order of temporary suspension has been issued, the Board must hold a hearing to determine probable cause within fourteen days of the issuance of the order. Following that, a hearing on the merits must be held within sixty days. The probable cause hearing is in reality the first opportunity the nurse may get to explain their side of the story and why their nursing license should not be subject to an on-going order of temporary suspension. The hearing is held in accordance with the Administrative Procedures Act and the administrative rules governing the State Office of Administrative Hearings (SOAH). The Board’s case is prosecuted by one of its staff attorneys and is ruled upon by an Administrative Law Judge (ALJ) from SOAH.

State Licensing and Discipline for Texas Insurance Agents: A Guide to the Basics

 

Every Texas insurance agent should be aware of the most common grounds for being the subject of a disciplinary investigation and action by the Texas Department of Insurance as well as the basic disciplinary procedures that are involved in this process.

 

Although not exhaustive, § 4005.101 of the Insurance Code sets out the most general and frequently used grounds for a disciplinary action against an agent. These include:

 

  • intentional material misstatements or fraud in connection with obtaining a license;
  • misappropriation, conversion, or illegal withholding of money belonging to a client, insurer, or health maintenance organization;
  • conviction for a felony;
  • material misrepresentation of the terms of a policy or contract;
  • engaging in fraudulent or dishonest acts or practices;
  • improper offering or giving of rebates;
  • violations of any insurance law; and
  • failure to maintain continuing education requirements.

Texas Insurance Code § 4005.101. Note that many of these -particularly numbers (1), (3), (4), (5), and (7)- are broad-sweeping, encompassing a wide swath of potential conduct. In particular, TDI can and will interpret these provisions as they deem is needed to protect the public from fraudulent or dishonest insurance practices.

 

The Texas Department of Insurance can impose an array of sanctions on an agent licensee. These include outright revocation/suspension/denial of the agent’s license in its entirety or only as to specific lines of insurance. The TDI can also decide to probate a suspension and attach conditions limiting the scope of the agent’s license. Finally,

the TDI may issue a public reprimand or impose sizable fines. Id. at § 4005.104.

 

Typically, an agent will first realize that the Department of Insurance is considering a disciplinary action against their license when they receive a letter of investigation. This letter should inform the agent that an official investigation is being conducted by TDI and outline the basic facts that led to its initiation and that are providing its focus. From this point, TDI may conduct an informal hearing on the matter where the agent, their attorney if they have retained one, and the prosecuting staff attorney have an opportunity to present their case before a small panel. This panel will then make a recommendation to TDI. Unless the Department of Insurance decides to dismiss the matter entirely, they will then offer an order to the agent that sets out official findings and specific sanctions.

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Department of Public Safety Arguably Denies Due Process

 

Recently, I have represented a pharmacist whose reapplication for his controlled substances registration was denied by the Texas Department of Public Safety when he voluntarily acknowledged that he had previously been convicted of a felony. He was one of several defendants on trial for the same set of criminal transactions and his own share of the guilt was slight. It was essentially a case of bad judgment and naivety on the part of my client. He had entered into a business relationship with the wrong people and was now paying for their misdeeds. The Federal Drug Enforcement Agency had essentially agreed and declined to take action against his controlled substances registration. In addition the Texas Pharmacy Board has so far chosen not to seek any disciplinary sanction.

 

In contrast, the Texas Department of Public Safety pursuant to the Texas Controlled Substances Act § 481.063(e)(2)(A) summarily denied his reapplication on the basis of his voluntary admission of his felony conviction. This section of the Health and Safety Code provides for such denial when an applicant has been convicted or placed on community supervision or probation for a felony. Fortunately, the Texas Legislature has also inserted into this chapter a provision allowing the Director of the DPS to probate a denial under § 481.063(e)(2)(A) upon a showing of good cause. The Act and the Department of Public Safety’s own administrative rules also generally allow an applicant to request a hearing wherein they may present evidence and argument in their favor.

 

As a hearing would almost certainly be necessary to present evidence establishing good cause for a probated order, I requested one as part of my client’s response to the DPS’s decision to deny his reapplication. In reply, the DPS sent a letter reiterating their denial and pointing to § 481.063(h). This Section holds that in the case of a denial based on a felony conviction, the provisions of the Texas Administrative Procedure Act do not apply. This is significant in that this bars access to the normal administrative process, most importantly, a licensee’s right to a full evidentiary hearing before an Administrative Law Judge.

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Austin Family Law Attorney

Recently we have had a number of physician clients in need of assistance from a family law attorney in Austin.  We have recommended Tim Whitten, PC.  Tim is a Board Certified Family Law Attorney who handles divorce matters, child custody cases, child support modifications and collaborative law as well as adoptions.  Tim's office is located at 812 San Antonio Street, Austin, Texas, 78701.  He is one block from the Travis County District Court house and is well versed in all of these matters.
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Professional Licensing Lawyers Outside Texas

I continually get phone calls from licensed professionals in other states or need to refer a client to an attorney in another state due to reciprocal discipline / multiple state licenses.  After many successes and a few failures I have come to the conclusion that the following lawyers are who I would send my family members to if they needed help with their occupational / medical license.

California

Frederick M Ray, PC

Attorney at Law

www.calicenselaw.com

800-474-6911

Georgia

Frances Cullen, PC

Attorney at Law

www.franseville.com

523-2044

New York

Fred Friedman

Friedman & Mahdavian, PC

212-302-0100

www.law4docs.com

I have had excellent success with all of these lawyers when they have handled matters for our firm's clients in their jurisdiction.  Fred Ray and Fran Cullen are especially helpful when a criminal matter is involved as they both have extensive criminal trial experience and are capable of efficiently and effectively handling both the criminal case and the administrative proceeding. 

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. 

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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...

BNE & Criminal History -Public Image or Public Safety?

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.

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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.

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:

  1. the nature of the act that gave rise to the exclusion;
  2. length of license suspension;
  3. criminal history, and;
  4. the availability of other sources of the type of health care services furnished by the individual. 
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