A hospital peer review has the potential to seriously disrupt a physician’s medical practice, often bringing with it a cascade of legal consequences that can devastate a health professional's practice and reputation. If you are a physician facing the prospect of a peer review due to allegations of unprofessional behavior or a standard of care complaint, the earlier you seek help from an experienced healthcare law attorney familiar with the peer review process, the better positioned you will be to protect yourself against these consequences.
An understanding of the process and its possible sequela is important for any physician faced with the prospect of a peer review. There is much more at stake for the physician than whether he or she will retain their ability to work at a particular hospital and many pitfalls which can catch the doctor unawares.
For example, if a physician resigns his privileges during the course of a hospital investigation, the resignation will likely result in a report to the National Practitioner Databank ("Databank" or "NPDB") , a national clearinghouse of information regarding physician misconduct. A report will also be forwarded to the Texas Medical Board which will then open an investigation leading to potential disciplinary action. The NPDB report, and possible Board order, will be visible to other hospitals where the physician holds privileges, and may result in yet further investigations. Any attempt to move on and gain new privileges will require an explanation of the report. Finally, the NPDB report will raise questions with insurance carriers, whom may attempt to remove the physician from their provider network.
The Investigation Stage:
Broadly speaking, the peer review process takes place in two stages: an investigation followed by a fair hearing. The specifics of this process will be governed by the hospital's medical staff bylaws which outline any right of the physician to participate in the investigation and the procedural details of the subsequent fair hearing.
Investigations are typically initiated by the hospital's Medical Executive Committee ("MEC") following a poor patient outcome or complaints about a physician's behavior or professional conduct. In some instances the hospital administration will also have the authority to open an investigation which will then be passed on to the MEC.
In cases where there is a perceived threat the physician's continued practice would pose an imminent threat to the hospital's patients or staff, the MEC may decide to immediately suspend the physician’s privileges pending further investigation. In addition to the severe damage such a temporary suspension inflicts on a physician's practice and reputation, should such a suspension continue for more than thirty days, the hospital is required to file a report with the NPDB and Medical Board.
If the MEC proceeds without temporarily suspending the physician's privileges, the formal investigation process will begin and the physician will receive official written notice of the allegations. If the investigation is related to medical care, the MEC will likely send the relevant medical records out for external peer review by medical professionals in the same field as the physician. After these reviews are complete, the MEC or an investigative panel, made up of other physicians, will then interview the physician.
During the hospital’s investigation, the physician’s ability to actively defend against the allegations is usually limited. For example, the physician may be given little to no access to the relevant medical records. Likewise, the physician may not be allowed to speak with staff members who are potential witnesses to the issue under review. Additionally, the hospital will often restrict the participation of the physician's lawyer during the MEC's investigative meeting(s) even though the physician is typically asked to attend and answer questions.
When the investigation is concluded, the MEC will consider the evidence and make a recommendation. If the recommendation is to drop the allegations, the peer review ends. If, however, the MEC decides to modify, suspend, or revoke a physician's privileges, the physician must be timely notified in writing of the proposed action, the reasons for this recommendation, and informed their right to a fair hearing. In Texas, physicians also have the right to attempt to mediate the dispute with the MEC and hospital.
The Fair Hearing Stage:
If the physician does not agree to the MEC’s recommendation, they may request a fair hearing. A fair hearing is usually conducted at the hospital before a panel of physicians who are also on the medical staff. Ideally, the panel should include one or more physicians in the same specialty. The panel should not include any doctor in direct economic competition with the physician being peer reviewed.
A hearing officer, normally a lawyer, will be appointed to oversee the hearing. The hearing officer's role is to resolve disputes between the physician and the hospital regarding the admissibility of evidence and hearing procedure and advise the hearing panel on other legal issues. A hearing officer should also ensure that the hearing is conducted in compliance with provisions of the Federal Health Care Quality Improvement Act ("HCQIA"). The HCQIA requires the hospital to provide a physician certain due process rights, and a failure on the hospital’s part to provide these rights could result in the hospital and MEC losing its statutorily granted immunity from certain types of lawsuits.
Texas Department of Insurance-Division of Worker's Compensation Increases Oversight and Enforcement Actions Against Designated Doctors
For the past several years the Texas Department of Insurance-Division of Worker's Compensation (TDI-DWC) has steadily increased the number of enforcement actions initiated against Designated Doctors serving the Texas worker's compensation system. The results of such enforcement actions can range widely— from a requirement that the Designated Doctor (DD) complete additional training, the payment of a sizable administrative penalty, to removal of the physician's Designated Doctor (DD) status. Most DD's are likely aware of this trend as it corresponds with broader efforts by DWC to more tightly regulate the worker's compensation process.
To accommodate this augmented activity the Division of Worker's Compensation's enforcement division has expanded its staff through recruitment from other state healthcare agencies, such as the Texas Medical Board. As a by-product of this hiring policy the DWC has adopted and modified many of the procedures commonly used by these other administrative bodies. This includes implementing an informal conference procedure which largely models that used by the Medical Board. Similarly, DWC Staff also frequently forward a proposed settlement agreement to a Designated Doctor prior to an informal conference or other adequate opportunity to respond to alleged deficiencies. This procedure mirrors that used by the Texas Board of Dental Examiners and Texas Board of Nursing.
A DD will often first become aware of a pending enforcement action through a records request from DWC's enforcement division asking for all documentation still in the DD's possession related to one or more specified patients. Alternatively, DWC will send the Designated Doctor official correspondence expressly notifying them an enforcement action has been opened, listing the matters being investigated, and ask for a response. Prior to providing a response, a Designated Doctor in receipt of such a letter from the Division of Worker's Compensation should promptly contact an experienced attorney to discuss their case and determine whether it is advisable to retain legal representation. We have seen many clients unknowingly do irreparable harm to their case by submitting a response first and only seeking legal counsel after they receive a proposed resolution from the enforcement division.
The DWC can initiate an enforcement action against a Designated Doctor for a broad array of different reasons, including submitting Designated Doctor's Evaluations (DDE) late, establishing a date of Maximum Medical Improvement (MMI) or Impairment Rating (IR) with which the Division's Office of the Medical Advisor disagrees, or having an Administrative Law Judge subsequently overturn the DD's findings in a hearing involving an injured worker. In fact, the kind of conduct, issues, errors, and omissions that can be considered a violation of the DWC's Rules is vast and many may seem picayune to the physician or outside observer. Regardless, the enforcement division pursues each issue zealously and makes full use of DWC's broad discretion to regulate its DD's in seeking enforcement action.
Any Designated Doctor who has been targeted for a possible enforcement action by DWC should immediately contact an attorney experienced in representing clients before the agency. The risks of going it alone are substantial and the DWC does not shy from removing physicians as Designated Doctors, particularly not in the overactive regulatory climate which currently prevails. My firm has been very successful in achieving successful outcomes for DD's before DWC and this includes physicians whom the enforcement division sought to have removed from the program. A vigorous rebuttal and/or remedial presentation by a lawyer experienced in advocating before the DWC can make all the difference in the final outcome.
A foreign physician coming to this country to pursue his residency is often faced with two visa options. He is typically required to choose either a J-1 visa or an H1-B visa. Both of these visas are "non-immigrant" visas, which do not entitle the visa holder to any permanent status in the US. For most foreign medical graduates, however, the H-1B visa is a better choice for physicians wishing to remain in the US after the completion of their residencies.
From 1976 through 1990 physicians coming to the United States to provide direct patient care, including those coming to the US to do their residencies, could only come on J visas. While easy to obtain, J visas were particularly hard on physicians because of the 2-year foreign residence requirement - After finishing their residencies, doctors were required to return to their country of nationality or last residence for 2 years. In 1990, Congress changed the law and allowed foreign physicians, including those coming to do their residencies, to petition for H-1B visas.
Many residency programs prefer doctors to come on a J-1 visa because of their familiarity with this process and the fewer formalities associated with it. For instance, programs offering J-1 visas do not have to file a Labor Condition Application (LCA) with the Secretary of Labor. The LCA requires programs offering H-1B visas to make certain attestations, such as guaranteeing equal pay with similarly qualified US doctors; a violation of the LCA can leave the program exposed to fines and restrictions on employing foreign workers.
Many foreign medical graduates (FMGs) also prefer coming on a J-1 visa because of the easier United States Medical Licensing Examination (USMLE) requirements. J-1 foreign medical graduates need only pass USMLE I & II whereas H-1B visa seekers must pass all three steps. Additionally, a J-1 visa typically lasts the duration of the training program, whereas H-1B visas only last three years with a one-time extension of another three years, though in certain circumstances multiple extensions may be allowed.
Requirements for Foreign Medical Graduates (i.e. foreign citizens who went to medical school outside the United States) to obtain an H-1B visa include:
- Completing Steps 1, 2 and 3 of the USMLE;
- Holding a license or other authorization to practice in the state of employment;
- Demonstrating English proficiency;
- Having an unrestricted license in a foreign state or documentation showing graduation from a foreign medical school.
Though seemingly less attractive than the J-1, the H-1B offers the huge benefit of allowing the foreign medical graduate the ability to apply for an immigrant visa (green card) and remain working in the country pending the determination of the application— once an employment-based immigrant visa petition has been filed, the H-1B can be renewed until such time the petition is decided on. The terms of the J-1 visa on the other hand requires the FMG to return to his country of residence for at least two years before returning to the US.
In some cases, the J-1 two-year residence abroad requirement can be waived, but only by accepting employment in healthcare professional shortage areas or medically underserved areas. The number of waivers are very limited if granted by a state agency - 30 per state per year, making the waiver a risky proposition. Additionally, such a J-1 waiver only allows the FMG to transition to the H-1B visa - not directly to a green card. As a result, the FMG's immigration process is further delayed. Even if the foreign medical graduate on a J-1 marries a US citizen, the physician must still fulfill the two-year residence abroad requirement or obtain a waiver.
Though some states, such as Texas and New York, enacted laws that neuter the H-1B's benefits, see here, the severe shortage of doctors has required those states to rethink their laws. In 2012 a federal appellate court struck down the New York law discriminating against foreign doctors. Moreover, in June 2013, Texas repealed its law requiring H1-B physicians to work in medically underserved areas such as their J-1 waiver counterparts. As a result of these new developments, the H-1B remains the best option for a physician to pursue residency and eventually obtain permanent status in the US.
Possible Secondary Effects of a Temporary Suspension on a Physician's Medicare Billing Privileges and DEA Controlled Substances Registration
Given the Texas Medical Board's increasing use of temporary suspension hearings it would be helpful to understand what repercussions those hearings entail. As we shall see, a temporary suspension not only affects a physician's medical license it may also affect his Medicare billing privileges and DEA controlled substances registration. A temporary suspension hearing may have been preceded by a temporary suspension without notice. A temporary suspension without notice is essentially a shoot first ask questions later proceeding. The Texas Medical Board first suspends the MD or DO and then later schedules a hearing pending which the physician remains unable to practice. While we strongly recommend that physicians always have legal representation during temporary suspension proceedings, we believe even physicians who are currently temporarily suspended may benefit from legal representation to mitigate the secondary effects.
Consequences to a physician's Medicare billing privileges and DEA registration as a result of a without notice temporary suspension proceeding:
As a result of a temporary suspension hearing without notice, the physician's license will be suspended leaving the physician unable to practice medicine. However, this suspension will only be in effect until a temporary suspension with notice hearing. At this subsequent hearing a panel of the Texas Medical Board may vote to reinstate the physician's license finding that the evidence is not sufficient to continue the suspension. In the meanwhile, however, the practitioner may still lose his Medicare billing privileges or DEA registration because of the suspension.
A provider is required under the Medicare regulations to report "any adverse legal action" within 30 days. However, there is a good faith argument to be made that the legal action to be reported must be final and unappealable. A temporary suspension without notice is certainly not a final determination as there must be a subsequent temporary suspension with notice hearing. Additionally it should be noted that the suspension of a medical license is only a "permissive" ground for Medicare exclusion. The physician is not mandatorily excluded from Medicare. An administrative lawyer well versed in Medicare regulations would be helpful in avoiding this undue exclusion during a temporary suspension.
The DEA is likewise entitled to revoke a person's DEA controlled substances registration if their medical license has been suspended or revoked. But, as described above, the temporary suspension without notice is short in duration because of the required temporary suspension with notice hearing. An administrative lawyer can similarly forestall the suspension or revocation of a physician's registration based on a thorough understanding of the Medical Practice Act's temporary suspension proceedings.
Repercussions on a physician's Medicare billing privileges and DEA registration as a result of a suspension with notice hearing.
After a with-notice hearing the temporary suspension can remain in place for an extended period of time, sometimes over a year. At this point, both Medicare and the DEA may exercise their statutory discretion and rescind the physician's privileges. However, because the revocation of the physician's privileges is still not mandatory, a skilled administrative attorney can find a legal basis to maintain the practitioner's privileges.
For instance, the physician may appeal the temporary suspension to a Texas district court. This would prevent the temporary suspension from becoming final as it would still be subject to possible reversal. If a physician's case is particularly strong, he may even move to enjoin the Texas Medical Board from enforcing the temporary suspension pending a final decision. This means that the temporary suspension would no longer have effect and the physician could continue to practice medicine in the interim. If the physician is thus "unsuspended," Medicare and the DEA lose their ability to revoke the physician's privileges on the grounds that his medical license is suspended. However, these agencies may still institute their own separate investigations and disciplinary proceedings against the physician to independently find grounds to revoke or refuse to renew his privileges.
A temporary suspension by the Texas Medical Board can have grave consequences for the physician's Medicare and DEA privileges. Physicians should retain legal representation for the temporary suspension proceedings; However, even after a temporary suspension, a physician should seek legal help from an administrative lawyer to mitigate the secondary damage such as the revocation of Medicare privileges and DEA registration. The lawyer must be familiar with both the Texas Medical Practice Act and the federal statutes and regulations governing Medicare and DEA privileges.
Our Leichter Law Firm physician licensing defense lawyers have exactly such experience and have been successful in obtaining injunctions against temporary suspensions and forestalling Medicare and DEA revocations. If you are facing temporary suspension or are suffering its aftermath please contact us at (512) 495-9995 to schedule your initial consultation.
The advent of telemedicine has made it possible to provide high quality medical care for underserved areas of Texas. Patients in rural areas now have the opportunity to receive care from the state’s best physicians when before travel costs would have made it impossible. Because of the new nature of telemedicine, state and federal laws and regulations have remained in flux. It is important for any telemedicine provider to be aware of these changes to ensure they remain compliant.
One of the most significant changes to telemedicine was the passage of the Ryan Haight Act in 2008. The Act places a number of restrictions on the practice of online pharmacies and the ability of practitioner's to prescribe medications through the internet. It was named after Ryan Haight, a teenager who died of a drug overdose in 2001 from controlled substances he bought from an online pharmacy. Mr. Haight was able to procure a prescription for Vicodin online without ever meeting a doctor.
The Act regulates anyone who delivers, distributes, or dispenses medication by means of the internet. The Drug Enforcement Agency treats a practitioner who prescribes medication following a telemedicine evaluation as covered under the Act. Generally a practitioner is in violation of the act if he or she does not perform at least one in-person assessment of the patient before prescribing medication.
The Act does exempt practitioners from this requirement as long as a practitioner meets the federal definition of practicing telemedicine. A physician practicing telemedicine may prescribe controlled substances without an in-person evaluation if: (1) The patient is treated by, and physically located in a hospital or clinic which has a valid DEA registration; and (2) the telemedicine practitioner is treating the patient in the usual course of professional practice, in accordance with state law, and with a valid DEA registration. 21 USC 802(54)(A). The most important thing to note for a practitioner is that the location where the patient is being treated must be a hospital or clinic that is itself registered with the DEA.
The requirement that the patient be in a hospital or clinic with a DEA registration is more stringent than Texas Medical Board requirements. Under Board rules, a physical, in-person evaluation is not necessarily required to prescribe medication and there is no requirement that the hospital or clinic have a DEA registration. A physician may treat a patient solely through telemedicine as long as the physician creates a physician-patient relationship, the patient is being treated at an “established medical” site, e.g., a clinic or hospital, and all additional requirements are met, including the use of a qualified presenter to examine the patient. Texas law also mandates that a telemedicine provider create and maintain detailed written protocols aimed at preventing fraud and abuse as well as separate policies covering the protection of patient privacy.
There are a number of other special types of telemedicine that under federal law allow a practitioner to prescribe medication without an in person visit, such as practicing telemedicine while working for the Veterans Administration, or receiving a special exemption from the Attorney General. The interaction between federal law and state law in this field is complicated and changing, and made all the more complicated by the piecemeal construction of the Controlled Substances Act.
If you are a physician who is thinking of beginning a telemedicine practice, it is important to seek the advice of experienced counsel to ensure your practice meets all federal and state law requirements. The applicable law can be complex and involve overlapping mandates on both the state and federal level. In Texas the rules regarding telemedicine continue to evolve as the Texas Medical Board frequently revisits this issue, often with an eye towards making more stringent regulation. The attorneys at the Leichter Law Firm have aided numerous physicians and other providers navigate both state and federal telemedicine law and implement best practices to help avoid the most common problems endemic to this field. In our experience, telemedicine is a complaint rich area where seeking the advice of a qualified attorney prior to being subjected to state or federal scrutiny makes all the difference.
Governor Rick Perry recently made eight appointments to the Texas Medical Board. The Medical Board is responsible for regulating the practice of medicine through licensure, discipline, and education, and is charged with protecting the health, safety, and welfare of the public, according to the Medical Board’s mission statement.
Four of the appointments are long-standing members of the Medical Board, who have each had their tenures extended to April 13, 2019. These current members included: Michael Arambula, M.D., PharmD, a psychiatrist in private practice, and adjunct professor in the Department of Psychiatry at the University of Texas Health Science Center at San Antonio; James Scott Holliday, D.O., of Dallas, Texas, an anesthesiologist for Pinnacle Partners in Medicine, where he is also the Vice Chairman; Margaret McNeese, M.D., of Houston, Texas, Associate Dean for Admissions and Student Affairs, and professor of Pediatrics at the University of Texas Health Science Center at Houston; and Timothy Webb, J.D., of Houston, who works as an attorney with Webb and Associates, and as an adjunct professor at the University of Houston Department of Health and Human Performance.
Devinder Bhatia, M.D., of Humble, Texas, was appointed to his first term with the Texas Medical Board. Dr. Devinder specializes in thoracic surgery, peripheral vascular disease, vascular surgery, cardiac surgery, and cardiac disease. He is also a former clinical professor at University of Texas Health Science Center in Houston.
Another new face to the Medical Board is Frank Denton of Conroe, Texas. Mr. Denton is president of a stock, bond, and real estate investment company called Denton Investment Corp. He was formerly a board member and small business chair of the Texas Association of Business. Additionally, Mr. Denton was a past Board chair of the Texas Department of Licensing and Regulation.
The Medical Board also now includes Robert B. Simonson, D.O., of Dallas, Texas. Dr. Simonson has practiced emergency medicine in Texas emergency rooms for about 25 years. He is the past president of the Physicians Emergency Care Associated and chair of the Methodist Dallas Medical Center Department of Emergency Medicine. He teaches at University of Texas Southwestern Medical Center and at the University of Texas Arlington School of Nursing. Dr. Simonson is also a board member of the American Board of Emergency Medicine.
The final appointee is Karl Swann, M.D., of San Antonio, Texas. Dr. Swann practices neurosurgery at Neurological Associates of San Antonio. He is also a clinical assistant professor at the University of Texas Health Science Center at San Antonio’s Center for Neurological Sciences, and was the past chairman of the Methodist Hospital System Department of Neurosurgery in San Antonio. Dr. Swann was appointed to the Texas Rehabilitation Commission in 1998, and to the Texas Health Care Information Council in 2000.
If you have an investigation or legal case pending before the Texas Medical Board, and want a knowledgeable administrative law attorney, with experience working with the Board and its members, please call the attorneys at the Leichter Law Firm for a free consultation at 512-495-9995.
Given the current aggressive regulatory climate surrounding the treatment of chronic pain, it is worthwhile to look back and understand how the applicable law developed prior to the Legislature's empowerment of the Texas Medical Board to oversee registered pain clinics in 2011. This prior law, including the Intractable Pain Treatment Act, was designed to safeguard physicians who treat chronic pain while remaining within the standard of care. It has been my experience as an attorney representing numerous physicians, mid-level providers, and pharmacies, that this prior law has largely been either forgotten or eroded to the point it no longer provides real protection to medical professionals.
The Intractable Pain Treatment Act (IPTA), separate from the Medical Practice Act, is codified at Chapter 107, Texas Occupation Code, and was intended to provide physicians with a safe harbor in prescribing controlled substances and dangerous drugs to treat pain. In this post we provide a background of this Act and its current relevance, or lack thereof, in the practice of medicine.
The Intractable Pain Treatment Act was passed in 1989 to deal with the problem that physicians were being disciplined by the Texas Medical Board because the Board refused to distinguish habitual users of narcotic drugs from patients with genuine medical needs. Prior to the passage of the IPTA, the Medical Practice Act allowed the Texas Medical Board, known at that time as the Texas Board of Medical Examiners, to discipline physicians for prescribing controlled substances or dangerous drugs to a person "known to be habitual users of narcotic drugs, controlled substances, or dangerous drugs or to a person who the physician should have known was a habitual user of the drugs." This phrasing of the Medical Practice Act made patients taking opioids to alleviate genuine suffering "habitual users." Accordingly, physicians prescribing pain medication to cancer patients were subject to disciplinary action by the Board. Such was the effect that physicians refused to prescribe these therapeutic drugs and hospitals refused to let physicians prescribe them on the premises.
The Intractable Pain Act of 1989 sought to rectify this basic problem by protecting physicians from Texas Medical Board discipline if they prescribed the medication for "intractable pain." Intractable pain is defined as pain the cause of which cannot be removed, treated, or cured. The IPTA also prohibited hospitals from restricting credentialed physicians from prescribing pain medications for intractable pain.
In 1993 the Legislature modified the Medical Practice Act to prohibit doctors from prescribing to a person who was a known "abuser" of controlled medications. In 1996 the Legislature amended the Intractable Pain Act to allow physicians to prescribe controlled medication even to such abusers as long as the medication was strictly for the management of their diagnosed pain which the physician had a duty to monitor. The physician was also required to document the understanding between the doctor and the patient and to consult with an addiction specialist as appropriate. These restrictions were only required when dealing with patients who were drug abusers or had a history of drug abuse.
In its final form the IPTA was meant to provide a safe harbor for Texas doctors who treated long-term pain provided the controlled medications they prescribed were actually for an underlying pain condition. This safe harbor protects physicians who treat known drug abusers for intractable pain provided they monitor the patient and consult with the appropriate mental health expert. Yet the protections of the safe harbor are slight; by the Act's own terms, the Texas Medical Board can still discipline physicians if they prescribe non-therapeutically or prescribe in a manner inconsistent with the public welfare.
The safe harbor provision provided by the Intractable Pain Treatment Act has been recognized, albeit modified, by the Board in its pain management rules codified at Chapter 170, Title 22 Texas Administrative Code. The rules recognize that pain treatment is a vital and integral part of the practice of medicine and that doctors should be able to treat pain using sound clinical judgment without the fear of disciplinary action from the Texas Medical Board. Yet, the rules go on to list several actions that should be involved in the treatment of chronic pain including the formulation of a pain management contract requiring random drug screening.
From the rules it is apparent that whereas the Intractable Pain Treatment Act required heightened monitoring and more rigorous documentation merely for known drug abusers, the Board's most recent rules make that standard applicable to all long-term pain management patients. While the rules do call themselves "guidelines" it should be noted that the Texas Medical Board will allow deviation from the guidelines only if the physician's rational for treatment indicates sound clinical judgment documented in the medical records.Continue Reading...
Texas Medical Board Schedules Wave of Temporary Suspension Hearings Targeting Pain Management Physicians and Physician Assistants
As we reported earlier this month, the Drug Enforcement Administration (DEA) along with several state agencies, including the Texas Medical Board (TMB) and Texas State Board of Pharmacy (TSBP), has been increasingly active in Houston over the past few months. More than ever before, the joint state and federal taskforce has taken a scorched earth approach to the battle against alleged “pill mills.” The taskforce has generally shown up at clinics and pharmacies unannounced, seizing records and equipment, and demanding surrender of the practitioner’s DEA prescribing registration. The practitioners targeted by this task force and these methods are not just notorious “pill mill” doctors and pharmacies, but also a large number of legitimate pain management physicians, physician assistants, nurse practitioners, pharmacists and pharmacies that just happen to be operating at ground zero of the war on prescription drugs. The net has been cast wide, and many practitioners are finding themselves in need of competent and experienced legal representation.
A Surge in Temporary Suspensions on the Horizon:
Many of the physicians or physician assistants that have any present or past association with these raided clinics are finding themselves the target of Temporary Suspension proceedings by the Texas Medical Board, based solely on their association with an alleged “pill mill”. We have received numerous calls over the last few weeks from physicians and physician assistants who have received notice of Temporary Suspension proceedings and are seeking the services of professional license defense lawyers. The Texas Secretary of State’s website currently lists eight Temporary Suspension hearings to be heard by the Medical Board just next week.
Temporary Suspension proceedings are initiated when Medical Board staff believes they have evidence sufficient to prove that the licensee’s continued practice constitutes a continuing threat to the public welfare (See Occupations Code, Section 164.059(b)). If after a Temporary Suspension hearing, the Disciplinary Panel, made up of Medical Board members, decides that Medical Board staff has indeed presented evidence sufficient to prove that the licensee constitutes a continuing threat, then that licensee’s license is suspended that very day. As such, there is a great deal at stake for any licensee that finds themselves in that position, and the benefit of hiring an attorney well-versed in medical license defense should be clear.
The Board’s Temporary Suspension remedy has traditionally been used sparingly, due to its severe impact on a licensee’s career, and due to the sizeable burden that Medical Board staff shoulders in proving that a licensee is a continuing threat to public welfare. The wave of Temporary Suspensions that the Board currently has scheduled represents a significant departure from that thinking. The commonalities in these cases are that the practitioners have some connection, either present or past, with a pain management clinic that has been targeted by the DEA taskforce. The licensee may be a physician who was serving as a part-time supervising physician or medical director. The licensee may be a physician assistant that worked in the clinic on a contract basis. Whatever the association, Medical Board staff’s theory of prosecution equates any association with an alleged “pill mill” to a continuing threat to the public, and often the evidence that they are using to show a continuing threat is equally as thin. However, if a licensee is not equipped to challenge Medical Board staff’s evidence and legal theories, it is likely that the Medical Board panel will find with Board staff.
What should you do if you receive notice of a Temporary Suspension hearing?
You should hire an attorney immediately upon being noticed of a Temporary Suspension hearing in front of the Texas Medical Board for several reasons.
First, you are most likely not equipped to represent yourself in a contested hearing in front of the Texas Medical Board. The disciplinary process at the Board is not intuitive and Temporary Suspension proceedings are particularly quirky. It is to your benefit to hire someone that is capable of putting on a cohesive defense that will include preparing and presenting documentary evidence, putting on witness testimony, cross-examining Board staff’s witnesses, and zealously advocating on your behalf.
Second, the Medical Board is only required to give you 10-days notice by Board rule (Texas Administrative Code, Title 22, Chapter 187.60(2)). This is a very limited amount of time to put together a strong and comprehensive defense. The best way to combat this challenge is to hire a lawyer that is capable of preparing a defense under these conditions, and to hire them immediately, so as to not waste time.
Third and finally, you should seek legal counsel and potentially hire an attorney because there is a great deal at stake with a Temporary Suspension hearing. It is nothing to be taken lightly. Your ability to practice under your license in the short term is in jeopardy, as is your future practice. A temporary suspension is on your public record forever, and its existence will definitely require explanation, and could potentially cost you opportunities in the future.
If you receive a visit from the DEA taskforce or you are given notice of a Temporary Suspension hearing from the Texas Medical Board or Texas State Board of Pharmacy, please do not hesitate to contact the professional medical license defense attorneys at the Leichter Law Firm. You need the guidance of an attorney that is experienced in medical licensing law, including cases dealing with allegations of non-therapeutic prescribing and prescription drug diversion, as well as the potential criminal ramifications. The Leichter Law Firm’s attorneys have represented clients in similar circumstances and have gained positive results for our clients. Give us a call at (512) 495-9995 or submit an inquiry through our website at http://www.leichterlaw.com/ for a free consultation.
Over the past month, the Federal Drug Enforcement Administration has drastically increased their activity in the Houston area. This includes a dramatic upswing in the number of unannounced raids targeting pain management physicians, physician assistants, nurse practitioner, and pharmacies. At this juncture, most every pain management clinic and pharmacy in the Houston should be aware of the coordinated campaign being conducted against pain management medicine by the DEA, local law enforcement, the Texas Medical Board, and the Texas State Board of Pharmacy. For background information please refer to the numerous posts concerning this topic on this blog.
To date, the government's strategy has largely focused on identifying the largest prescribers and dispensers of the most commonly prescribed medications for pain management— hydrocodone and some type of muscle relaxer, usually Soma— and then targeting these facilities as well as the associated physicians and pharmacists. Oftentimes, the physician, mid-level practitioner, or pharmacist will only first learn they have been targeted when the DEA and associated agencies suddenly appear at their place of business brandishing badges and search warrants. This will be closely followed by a temporary suspension hearing before the Texas Medical Board or Texas State Board of Pharmacy intended to immediately suspend the practitioner's license.
Based on the number of phone calls to my law firm in the last month, it is clear the government's tactics have shifted away from selectively targeting the highest prescribers and dispensers of pain management medications. The DEA is now engaging in a much wider, almost indiscriminate, operation of raiding pain management clinics and the pharmacies that fill their scripts. Many of these raids appear focused merely on seizing records and equipment.
Traditionally, virtually every search and seizure has included a demand by the DEA that the physician or pharmacy owner immediately surrender their controlled substances registration. This is accompanied by vague threats of criminal and/or administrative prosecution if the licensee declines. During the most recent set of raids, the DEA has not consistently requested the surrender of the physician or pharmacy owner's registration. In some instances, the DEA has even specifically told the client they are free to reopen.
This emerging pattern of practice likely indicates the DEA and local law enforcement are amassing documents and information to later be used for mass indictments in federal and state criminal courts. The Houston District Attorney's office has recently suffered several setbacks in their prosecution of pain management / non-therapeutic prescribing cases. These loses probably heralded the current shift of tactics and more careful preparation of cases prior to filing. The DEA may also be looking to pursue more widespread administrative revocation of perceived wrong-doers' controlled substances registrations.
Regardless of the meaning or implications of this change, any physician or pharmacist who is raided by the DEA should immediately contact an attorney with experience representing clients accused of non-therapeutic prescribing/dispensing in both the criminal and administrative arenas. These cases are pursued zealously by the applicable agencies and usually involve a multi-front assault criminally through state or federal court and administratively through the person's controlled substances registration and applicable state licensing board.
Moreover, a physician, pharmacist, or mid-level practitioner should not surrender their controlled substances registration prior to consulting with an attorney. The DEA's raids are designed to intimidate and many practitioners make the mistake of buckling to the government's threats and surrender their certificates. This is a reflexive request on the part of the DEA and does not actually mean the person has done anything wrong or that the government has a good case. Additionally, even though my firm has been very successful in obtaining the reissuance of clients' surrendered controlled substances registrations, the reinstatement process is onerous and time-consuming and the intervening damage to the client's medical practice or pharmacy can be devastating.
Any physician or pharmacy who has been raided by the DEA should immediately contact an attorney, preferably during the actual raid. You have the right to speak to attorney prior to providing a statement or making any decision concerning your certificate. The stakes are very high in these cases and a successful outcome is often dependent on securing competent counsel at the earliest possible stage.
As the Texas physician shortage continues, more and more physicians from foreign countries are coming to the state to meet the shortfall. This blog post describes how the Texas Medical Board and legislature have limited the geographic locations in which foreign physicians can practice. This post also discusses the constitutional implications of the law given that it allows the Board to discriminate against foreign physicians.
In 2011, the Texas legislature amended the Medical Practice Act to require that foreign physicians who were neither US citizens nor permanent residents (green card holders) work in a Medically Underserved Area for three years, or promise to so work, in order to qualify for a Texas medical license. The law does not affect current license-holders, physicians who have practiced at least one year prior to September 1, 2012 on a Texas Physician-in-Training permit, or physicians who submitted their applications for full licensure prior to September 1, 2012. Other foreign physicians not subject to one of the foregoing exceptions are subject to the new law.
The main effect of this law is to force physicians in the United States on an H-1B work visa to practice for three years in a Medically Underserved Area. Medically Underserved Areas (MUAs) are designated by the United States Department of Health and Human Services and administered in Texas by the Texas Department of State Health Services. MUAs are areas which suffer from a significant shortage of personal health services and are determined according to a formula weighing a geographic location's poverty and infant mortality rates, the percentage of elderly population, and the ratio of primary care physicians. Many rural counties in Texas have been designated as a MUA as have certain disadvantaged areas in large cities such as San Antonio.
The law is primarily designed to impose the same rules on a foreign physician coming to Texas under a H-1B visa as those applicable to an individual coming to Texas pursuant to a J-1 visa. Foreign physicians coming to the United States to do their residencies usually enter on either a J-1 or an H-1B work visa. Under the federal laws, the J-1 visa allows a physician to do his residency, but at the end of his stipulated time he must return to his country of citizenship and stay there for two years. He is not eligible to seek green card status. However, if the physician elects to work in a MUA, they can receive a waiver and have their status adjusted to H-1B status without having to leave the US and face the 2-year residence abroad requirement. The physician is also then allowed to apply for a green card.
Under federal law, a physician who initially enters on an H-1B does not have to face these burdens. They are eligible to petition for a green card without a break in their stay and employment in the United States. Nor does such a physician have to obtain a waiver by working in a MUA.
The new Texas law forces a H-1B physician to work in a MUA just as her J-1 counterpart would by making practicing in such an area a mandatory requirement for licensure. It is certainly interesting that the Texas Medical Board is now effectively pursuing immigration policy and determining where a foreign physician can geographically work. There is no claim being made that the H-1B physicians are inferior and so demand more scrutiny than American citizens. In fact a contrary inference may be drawn since it is mandated that the H-1B physician provide care for some of the most medically vulnerable populations in Texas. Moreover, most H-1B foreign physicians will have completed a residency program in Texas. Thus, the Texas law is not in place to protect the public from foreign physicians. The law is merely a way of ensuring that H-1B physicians take jobs in areas no American physician wants to go to—the MUA.
It is also likely possible this new law would have an overall negative impact on the number of new physicians coming to Texas to practice by discouraging the immigration of foreign doctors. If the only way for a foreign physician to practice in Texas is to do so in a MUA (an area which by definition has, for whatever reason, not proven attractive to Texas physicians), they may very likely simply go to another state following their residency in Texas. In effect, Texas health resources spent training new physicians will ultimately go to benefit other states.
It is also important to keep in mind that a foreign physician in the country on a H-1B visa cannot open their own practice, even in a MUA. They can only work for a sponsoring employer. Accordingly, foreign physicians are being forced to find a pre-existing physician practice in an area which is designated a MUA precisely because there is already severe shortage of physicians. It is unclear how areas which are already struggling to economically support a basic health care structure are going to integrate an influx of foreign physicians.Continue Reading...
As tuition at US medical schools continues to increase at an astronomical rate, more and more aspiring doctors are looking abroad, particularly to the Caribbean, to pursue their medical degrees. Moreover, due to the shortage of physicians in the United States the country needs more physicians from other countries. Both sets of medical graduates of foreign medical schools face challenges when they seek licensure in the United States. This post particularly describes the additional burdens faced by graduates of foreign medical schools as they seek licensure in Texas.
The Texas Medical Board regulates the practice of medicine in the State of Texas. This includes determining licensure requirements for medical school graduates. Part of this determination requires verifying that the graduate met certain minimum requirements during the course of their medical education. While such a verification for graduates of United States medical schools are relatively easy—the Board relies on the Liaison Committee on Medical Education and American Osteopathic Association Bureau of Professional Education to approve those schools—the verification of foreign medical schools is a much more cumbersome process. It should be noted that the process described here is independent of citizenship status—i.e. the vetting process for foreign medical schools is the same regardless of whether the foreign medical school graduate is a United States citizen or a citizen of another country.
The verification process first begins with a degree equivalency determination. The foreign medical graduate (FMG) must get their credentials evaluated by the Educational Commission for Foreign Medical Graduates (ECFMG), a non-profit organization that deals with determining the equivalency of foreign medical degrees. ECFMG will weigh the foreign transcript and grades and convert the coursework into an equivalent for a US school. If ECFMG determines that the degree received is equivalent to a US Medical degree then it will award the FMG a certificate saying so. ECFMG may find that a foreign medical degree is equivalent to a US medical degree even if that degree is a baccalaureate one. Obtaining a certificate from ECFMG is also required before the foreign medical school graduate may sit for the United States Medical Licensing Examination (USMLE), which is the standard medical licensing examination in the United States.
However, a certificate from the ECFMG is only a starting point for the foreign medical graduate. The Texas Medical Board further requires that the foreign medical graduate show that the school itself rather than just the coursework is substantially equivalent to a Texas medical school. Such a determination requires documentation of:
- a Foreign Educational Credentials Evaluation from the Office of International Education Services of the American Association of Collegiate Registrars and Admissions Officers (AACRAO) or an International Credential Evaluation from the Foreign Credential Service of America (FCSA), or another similar entity as approved by the board;
- a board questionnaire, to be completed by the medical school and returned directly to the board;
- a copy of the medical school's catalog;
- verification from the country's educational agency confirming the validity of school and licensure of applicant;
- proof of written agreements between the medical school and all hospitals that are not located in the same country as the medical school where medical education was obtained;
- proof that the faculty members of the medical school had written contracts with the school if they taught a course outside the country where the medical school was located;
- proof that the medical education courses taught in the United States complied with the higher education laws of the state in which the courses were taught;
- proof that the faculty members of the medical school who taught courses in the United States were on the faculty of the program of graduate medical education when the courses were taught; and
- proof that all education completed in the United States or Canada was while the applicant was enrolled as a visiting student as evidenced by a letter of verification from the U.S. or Canadian medical school.
In 2010, the Texas Legislature created the Texas Physician Health Program (PHP), effectively shifting the oversight of licensed Texas physicians with substance abuse disorders and mental illness from the Texas Medical Board to a program uniquely tailored to monitor those issues. Responsible in part for the success of this idea is the sentiment that physicians generally do not like dealing with the Medical Board, and are not keen on self-reporting substance abuse issues to the Medical Board or being candid about mental health problems. The PHP, while not entirely independent from the Medical Board (PHP is administratively linked to the TMB), was intended to provide a more attractive option for those physicians who needed the oversight and the help that PHP would provide. In the 2+ years since its creation, the PHP has largely been successful, and certainly is still preferable to the Medical Board’s investigative and disciplinary process in many instances. However, there are certain types of “substance-related” cases in which a referral to the PHP is not appropriate, and a physician would be better served to hire an experienced professional license defense attorney and take the case to the Medical Board, seeking dismissal. Simply put, a one-time arrest and conviction for DWI or Public Intoxication does not justify a long-term PHP contract aimed at facilitating recovery.
The PHP is not typically appropriate in instances where the physician has had a one-time substance-related arrest, but no substance abuse diagnosis. However, we frequently encounter physicians who have been arrested for one-time instances of DWI or public intoxication and are subsequently offered participation in the PHP in lieu of Medical Board action. Oftentimes, the offer of PHP contract will have been given before the DWI case is even criminally adjudicated. For a physician that does not seek the proper legal guidance, that one-time DWI arrest will result in a 5-year PHP contract, where the physician is subjected to terms that likely include substance abuse treatment, Alcoholics Anonymous attendance, drug screening, and possibly practice restrictions. While a confidential PHP contract that offers that level of structure is probably appropriate for a physician with a diagnosed substance use disorder, it is not appropriate for the physician who made a highly regrettable, one-time decision to drink and drive. Additionally, it is very difficult for anyone to stay compliant with a 5-year PHP contract when there is no actual substance abuse disorder- the terms of the order start to look very arbitrary. Moreover, there will be lifelong consequences with credentialing and applications for privileges.
The alternative to a PHP contract is the perceived threat that the physician’s case will be forwarded to the Medical Board for investigation and possible disciplinary action. Contrary to common misperceptions, that is often the preferable scenario in this instance. The Medical Board does not have the power to discipline a physician for a one-time arrest and conviction of DWI, and as long as that DWI does not lead to evidence that the physician may have a substance abuse problem, the Medical Board must dismiss the case (Tex. Occ. Code § 164.051(a)(2)). The physician will probably be investigated and invited to participate in an Informal Settlement Conference with the TMB, but an experienced administrative law attorney should be able to guide them through the process without receipt of any discipline. The professional license defense attorneys of the Leichter Law Firm have been very successful in getting these cases dismissed.
If you are a physician, physician assistant, or other licensee of the Texas Medical Board, and you have been offered a PHP participation contract in response to a one-time substance-related arrest, do not hesitate to contact the experienced administrative law attorneys of the Leichter Law Firm. Even if you have not yet been contacted by the TMB or the PHP regarding your substance-related arrest, it is advisable to contact us at 512-495-9995 for a free consultation.
Since the summer of 2011, the Texas Medical Board has been considering adopting a new rule applicable to non-surgical, cosmetic procedures such as Botox or dermal filler injections. The proposal would create new standards and requirements applicable to physicians who perform or delegate the performance of such procedures. Currently, this area is covered by Chapter 157 of the Medical Practice Act which governs a physician's ability to delegate the performance of medical acts to a non-physician. This includes a person who is not licensed, such as a medical assistant, and individuals who are licensed but are not allowed to diagnose illness or create a treatment plan, such as a cosmetologist.
Underlying the Texas Medical Board's initiative is a concern that physicians have not been exercising sufficient control and supervision over the unlicensed persons performing delegated non-surgical, cosmetic medical acts. This includes allowing an unlicensed person to determine the need for the cosmetic procedure as well as deciding how this procedure was to be performed- i.e. how many Botox units to use and the selection of injection sites. In the reports submitted to the Board Committee drafting the new rule, Medical Board Staff have argued that this constitutes the unlicensed practice medicine.
Prior to the initial stakeholder's meeting weighing in on a proposed rule, the attorneys at my firm had represented a physician who had delegated filler injections to a medical assistant. The Board invited our client to an informal conference to address allegations that this constituted improper supervision and delegation. Based on our argument that the physician's actions were proper under Chapter 157's delegation provisions, the Texas Medical Board closed the case and convened the stakeholder's meeting.
The current version of the proposed rule would supplement the present requirements for physician delegation found in Chapter 157. The main change is a mandate that any patient receiving a non-surgical, cosmetic procedure must first be assessed and examined by the physician or, in the alternative, a midlevel practitioner acting under the delegation of the physician. The physician or midlevel practitioner is then responsible for establishing a diagnosis, obtaining the patient's informed consent, and preparing a treatment plan. Under the present law, a non-physician can arguably perform many of these functions as long as it is closely delineated by standing delegation orders and protocols developed by the physician.
The Texas Medical Board's proposed new rule also requires that either the physician or a midlevel practitioner be on-site during the performance of any delegated procedures. Additionally, the supervising physician is required to develop and maintain detailed protocols governing their delegates and must also create a quality assurance program satisfying various criteria. Importantly, the proposed rule makes clear the physician retains ultimate responsibility for the safety of the patient and the proper performance of the procedure.
Several exemptions are located in the rule: These include laser hair removal performed in accordance with the Texas Health and Safety Code, the use of nonprescription devices, surgery as defined in the Medical Practice Act, and procedures performed by midlevel practitioners at their supervising physician's primary practice site.
Although the rule has not yet been accepted by the Medical Board, I anticipate it will eventually be adopted. This has been a hot topic lately and it is clear the existing law is not satisfactory to both the Board's Members and Staff. Physicians and unlicensed individuals performing these types of procedures need to be aware of the new rule and poised to ensure they are in compliance when and if it is enacted.
The Texas Medical Board aggressively pursues perceived violations in this area and I would only expect this to increase should the rule be adopted. My firm recently represented a licensed cosmetologist who was issued a Cease and Desist Order by the Board based on their belief my client was practicing medicine in the course of providing Botox injections due to inadequate oversight by her supervising physician. Attorneys at the Leichter Law Firm filed an appeal against the Order and the Texas Medical Board agreed to rescind it based on inadequate notice to our client. Currently, the matter is expected to proceed to a new cease and desist hearing.
Physicians and their delegates concerned about remaining in compliance with both the current law and proposed new rule should feel free to contact the Leichter Law Firm at 512-495-9995. We have assisted several other clients in this area some of which faced active cases with the Texas Medical Board and others who only wanted to ensure their protocols and procedures passed muster.
Physicians that treat chronic pain patients or prescribe a large volume of narcotic pain medications ought to be increasingly aware of the pressure that is being exerted by the Texas Medical Board, the Drug Enforcement Administration (DEA), and their multi-agency task force. We have drawn attention to the crackdown on alleged “pill mills” and alleged non-therapeutic prescribing on this very blog. Likewise, we have previously highlighted the pain clinic legislation that allows the Medical Board to monitor those practices more closely (see Occ. Code Sec. 167 and Board Rules Sec. 195). The physicians who have been found in violation of these laws, have felt the negative impact on their ability to practice- loss of their DEA controlled substance certification, restrictions on their practice, and/or revocation of their medical license. In fact, our attorneys have successfully represented many physicians, as well as other health care professionals, who have been targeted as part of this combined state and federal initiative.
More recently, the State of Texas has started charging these same physicians criminally, meaning potential felony convictions and lengthy prison sentences. The State’s legal theory is that Texas Occupations Code sec. 165.152 allows them to charge these violations of the Medical Practice Act (Act) as a third degree Felony. The most troubling implication of the State’s legal theory, however, is that if it is accurate Texas prosecutors could conceivably bring felony charges for any violation of the Medical Practice Act, no matter how insignificant. The State’s legal argument has not yet been challenged in court, but we believe that it does not hold up upon review of the statutes.
It might help to set up a quick factual scenario similar to those we have seen recently. A physician takes a position with a clinic, whose clientele are at least 50% chronic pain patients. In order to comply with Occupations Code Sec. 167, the clinic must obtain a pain clinic certification from the Texas Medical Board. The physician applies for and receives the pain clinic certification. However, according to Board rule 195.2(a)(1), the certification can only be held by the clinic’s owner, and since this physician is not the owner of the clinic, he is in violation of the Act. If it correct that the criminal liability provisions of the Texas Medical Practice Act treat any violation of the Act as a felony criminal offense, then this physician could now be charged and prosecuted for a third degree felony by the State of Texas. In fact, this exact scenario is currently playing out in one Texas' largest metropolitan areas.
The State's belief that virtually any violation of the Texas Medical Practice Act can be classified as a felony is not borne out by a reading of the applicable statutes. Section 165 of the Act sets out the penalties for violations of the Act and Board rules. Criminal penalties for violations of the Act are set out in Subchapter D. There is a general criminal penalty statute (see Occ. Code Sec. 165.151) that states that any violation of the Act is a criminal offense, but if further states that if no penalty is specified, the offense constitutes a Class A misdemeanor. A thorough review of the pain clinic certification statute and rules do not specify a criminal penalty. It follows that, if the State wants to criminally charge that Texas physician for violating the Act, the only offense available is a Class a misdemeanor. Then how can the State charge a physician who violates the above statute with a third degree Felony?
The State has found their authority in the statute that directly follows, Occupations Code Sec. 166.152, which states that a person commits an offense if the person practices medicine in Texas in violation of this subtitle, and further states that the offense for such is a Felony of the third degree. If read out of the context, this statute would justify the State’s prosecution; the physician practiced in violation the Act and this offense constitutes a Felony. However, there are multiple problems with that reading of the statute, and the context and intent of the legislature do not support the State’s legal theory.
First, the offense that Occupations Code Sec. 166.152 has historically referred to is the practice of medicine without a license- not just any violation of the Act. Thus this section has traditionally been targeted against unlicensed individuals who hold themselves out as physicians. There is no precedent for the State’s broad reading of the statute, and it is clear that the Legislature never intended it to be read that way. Senate Bill 1303 that eventually became this statute even contained a preamble that read “An Act relating to the practice of medicine, including the rehabilitation of impaired physicians and the unlicensed practice of medicine; providing a penalty” (my italics). The reading of Sec. 166.152 in context makes it clear that the Legislature was not looking to make every violation a felony, but rather to criminalize the unauthorized, unlicensed practice of medicine.
Second, if Occupations Code Sec. 166.152 could be read to make any violation of the Act a third degree Felony, then any physician who fails to timely change their mailing address with the Board (Board rule 166.1(d)) or complete their 48 hours of continuing medical education every two years (Board rule 166.2) could be charged with a Felony for the violation. This ludicrous result underscores the States faulty legal theory. This absolutely could not be the Legislature’s intent when writing the statute, and of course we would argue that it was not.
Third, the context of Occupations Code Sec. 166.152 does not support the State’s reading. As I noted previously, there is a general criminal penalty statute directly preceding it, Section 166.151, which states that any violation of the Act constitutes a Class A misdemeanor if the penalty is not specified. If Section 166.152 could be read to broadly state that any violation of the Act is a third degree Felony, then the preceding statute 166.151 would be either contradictory or unnecessary.
In conclusion, the pending felony prosecutions under this legal theory are very problematic. If left unchallenged, they subject the defendant physicians to criminal penalties far more serious than restrictions on their medical practice. The possible implications of this development should seriously disturb any physician practicing in Texas. But, I believe that the State’s legal theory is weak and subject to challenge by attorneys who understand the Medical Practice Act and administrative law statutes the State is relying on. Unfortunately, a single case poorly argued could set a bad precedent for other districts. If you are a Texas physician who is facing discipline by the Texas Medical Board and related potential criminal prosecution, please contact the attorneys at the Leichter Law Firm for a consultation. 512-495-9995.
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.Continue Reading...
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.
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.
Over the past several weeks there has been an onslaught of temporary suspensions by the Texas Medical Board and Texas State Board of Pharmacy targeting Houston area physicians and pharmacists. These emergency suspensions have all stemmed from the joint state and federal task force combing Harris County for the non-therapeutic prescribing and dispensing of medications commonly used to treat chronic pain: primarily hydrocodone, soma, xanax, and klonopin. Presently, there is no sign that this barrage of suspensions will let up.
Most of the physicians, pharmacists, and pharmacies which have been temporarily suspended seem to have been selected because they have already been arrested or otherwise targeted by the Harris County task force. Moreover, many of these individuals have appeared in local media coverage of the crackdown. Temporary suspensions by the Medical and Pharmacy Board only allow for short notice to the affected practitioner meaning the licensee has little chance to prepare their defense.
Moreover, it has been my firm's experience with such suspensions that the licensee faces an uphill battle as the deciding panel is made up of three Board members, not an independent judge unaffiliated with the prosecuting agency. Generally speaking, such Board panels accept Board Staff's claims and evidence at face value particularly when the practitioner has been arrested or the subject of media attention. The evidence presented in such hearings is usually the testimony of DEA agents or local law enforcement who have been involved in the case. Oftentimes, this involves testimony from an undercover officer who received pain medication from a physician after falsely telling the practitioner they suffer from chronic pain and undergoing an assessment in conformance with the Medical Board's rules on pain management. It is unclear how this constitutes non-therapeutic prescribing as the physician is essentially being lied to by the undercover agent. A Houston pharmacist was likewise recently suspended based merely on the number of pain prescriptions dispensed by their pharmacy as well as the accidental early filling of a single prescription presented by an undercover officer.
Again, the evidence presented is often flimsy at best and likely would not result in an emergency suspension were the matter before an independent administrative law judge. Simply because a licensee has been arrested does not mean the unproven charges will result in a criminal conviction. The unfortunate result of the current approach by the Medical and Pharmacy Board is the suspension of innocent pharmacists and physicians along with those knowingly engaged in the provision of illegitimate pain medication.
A temporary suspension will dramatically impact a practitioner's career and remain a part of their permanent licensure record. Additionally, if the licensee is a physician a report will be generated with the National Practitioner Data Bank and remain there indefinitely. Once a physician or pharmacist is temporarily suspended their only recourse to overturn the suspension is to appeal the case to District Court in Travis County, a process which is neither timely nor inexpensive.
Legally speaking, the temporary suspension of a physician's or pharmacist's license is meant to be an extraordinary remedy designed to immediately remove such individuals from practice due to an imminent danger to the public were they allowed to continue working. Regrettably, it appears as though many of the persons who have been temporarily suspended in the past few weeks have legitimate defenses to the charges levied by their respective Boards. Any physician or pharmacist who receives notice of a temporary suspension hearing should contact an attorney immediately as there will be little time to prepare and a negative result could cause irreparable harm to their career and reputation.
The Texas Medical Board receives about 6,000 complaints each year, and in an effort to resolve select “minor” violations of the Medical Practice Act (Act) more quickly, an administrative penalty order has been developed and put into use called the Fast-track Order (Fast-track).
Not every violation of the Act is eligible for a Fast-track. The Fast-track has been referred to as the speeding ticket of the Board’s disciplinary options. Its use is limited to a relatively small list of violations, including: failure to complete continuing medical education (CME) requirements; failure to change address with Board; and failure to provide copies of medical records in a timely manner upon request.
If Board staff determines that a licensee’s alleged violation is eligible for a Fast-track, they will send a brief notice of the allegations to the licensee with a synopsis of the allegations and the deadlines for response.
The licensee is given three choices:
- The first option is to plead no contest and pay the fine. Sometimes this can be an attractive outcome if the licensee inarguably violated the Act, and wants to save the time and money of even taking the case as far as an Informal Settlement Conference (ISC). A no-contest plea means that the Fast-track will be entered by the Board, and the licensee’s public profile will be updated to reflect the discipline. The order itself is a brief document, containing only a brief statement of the allegation, but its presence is a permanent mark on the licensee’s public profile.
- The second option the licensee is given is to respond in writing to the allegation. The licensee’s right to an ISC is thereby waived, and the written response is considered by the Board’s Disciplinary Process Review Committee (DPRC). DPRC will then either dismiss the case or impose the fast-track penalty without any further input from the licensee.
- The final option is to reject the fast-track order and proceed to an ISC, which is to say that the case would proceed through the regular disciplinary process. The licensee would be invited to attend an ISC and discuss the allegations with a Panel of Board representatives.
If the licensee chooses not to answer at all, the Board has the authority to impose the administrative penalty. This happens often if the Board does not have the licensee’s current contact information, and when the discrepancy is noticed by the licensee somewhere down the road, they find themselves mired in bureaucratic quicksand trying to straighten it out.
Ultimately, if you receive a Fast-Track, and you are faced with the prospect of choosing one of the above options, you should realize that each one of the above options has its variables to consider, whether it be the amount of time and money that will be spent, or the visibility of a given disciplinary outcome. If you have received a Fast-Track letter from the Board, it is in your best interests to consult with an attorney to best evaluate your options. The Leichter Law Firm has successfully defended many clients before the Board, and is mindful of the pitfalls of the Board’s disciplinary process. Do not hesitate to call us for a free consultation at (512) 495-9995.
Over the last few years substantial momentum has been steadily building on both the administrative and criminal fronts against physicians whose practice primarily or substantially involves pain management and the pharmacists who file their prescriptions. In many instances, this governmental clamp down is fully justified as every pharmacist and physician familiar with this practice area is well aware of the significant problem associated with the non-therapeutic prescribing of powerful narcotics and other controlled substances. Tragically, many physicians and pharmacies who provide legitimate pain control have also been captured in this ever-widening net. The consequences can be severe and can include the loss, restriction, or temporary suspension of the individual/entity's state license, loss of a physician's DEA and DPS controlled substances registrations, substantial monetary fines, and even criminal prosecution.
As an attorney who has defended numerous physicians, pharmacists, and pharmacies in both state and federal administrative and criminal actions, it has been my impression that the pace of this clamp-down has only increased. I hope to write a series of articles detailing different aspects of non-therapeutic prescribing/dispensing cases and what practitioners and pharmacists can expect should they be unfortunate enough to be targeted under this or a related claim. This article will focus on the combined state-federal task force presently sweeping Texas to shut-down so-called "pill mills."
The Pill-Mill Taskforce:
The expression “pill-mill” is becoming an increasingly recognizable term to the general public due to investigative journalistic pieces done by national news outlets like 20/20 and CBS News. A true pill-mill is typically comprised of a network of dubious physicians and pharmacists that dole out controlled substance prescriptions to individuals, based not on medical necessity, but on their cash value on the street.
Along with growing media exposure came the realization by government regulators and law enforcement officials that much of the pill-mill activity in Texas is based in Harris County. In response, a taskforce of interested state and federal agencies and law enforcement entities was formed to combat non-therapeutic prescribing in the Houston area. The taskforce includes members of the federal Drug Enforcement Agency (DEA), the Texas Medical Board (TMB), the Texas State Board of Pharmacy (TSBP), and local law enforcement. The taskforce has been very aggressive in pursuing and sanctioning Houston pain management clinics and pharmacies. As discussed above, the consequences can be severe and extend all the way to convictions for serious felony offenses.
Targeted Physicians and Pharmacies:
The joint task force uses several different methods to select targeted practitioners and dispensing pharmacies. These include utilizing databanks maintained by the DEA to pull down the largest prescribers and dispensers of certain medications within a given county. The task force also refers to the list of pain clinics which were required to register with the Texas Medical Board following the last Legislative session. Other red flags include all-cash transactions, high numbers of daily patients, large or atypical numbers of narcotics and other targeted medications, frequent use of the pain cocktail of Soma, Xanax, and Hydrocodone.
Once targeted, a physician or pharmacy is immediately placed on the defensive as they face a coordinated assault by law enforcement officials, the DEA and DPS, as well as the applicable state licensing agencies. These investigations are accusatory in nature and generally proceed on the presumption that the individual/entity is engaged or participating in non-therapeutic prescribing. Oftentimes the first indication that an individual has been targeted will be an armed raid of the person's practice or pharmacy and the seizing of their prescription or dispensing records. The physician or pharmacist may be asked on the spot to sign a statement or affidavit connected with the allegations or asked by the DEA or DPS to surrender their controlled substances registration.
Again, it bears reminding that the sudden arrival of the task force may only be because the targeted entity showed up high on the DEA's records on the volume of narcotics prescribed/dispensed or some other such indication which, by itself, has little bearing on whether or not such prescriptions are for a legitimate therapeutic need. I have represented several physicians targeted by the task force despite their having in place rigorous safeguards and practices designed to ensure that all prescriptions are for legitimate medical conditions and taken only at a therapeutic dose.
This task force represents the leading edge of regulatory pushback at what has increasingly been identified as a widespread problem: physicians and pharmacies who fuel prescription drug abuse by persons who lack a legitimate medical need. The problem is that this combined dragnet continues to ensnare numerous physicians and pharmacists who provide genuine and legitimate pain relief to Texas patients.
Any physician or pharmacist contacted or raided by the joint task force or any of its individual members should seek legal representation immediately. If you are raided by the task force you should contact an attorney on the spot and refrain from giving any oral or written statement, signing any documents, surrendering your license or controlled substance registration, or acquiescing to any demand without first seeking legal counsel. The stakes are very high and a mistake could permanently prejudice your ability to defend yourself.
Discipline at the Texas Medical Board (Board) is a complaint driven process- meaning that every investigation opened by the Board’s investigators results from the filing of a complaint. The Board receives roughly 6,000 complaints each year, and they come from various sources, including patients, subsequent providers, competitors, former employees, and even the Board itself. Essentially, anyone can file a complaint with the Board, and the Board is required by law to investigate it.
According to Board rule 178.4(c), the complainant’s identity and the complaint itself are expressly confidential as part of the Board’s investigative file, unless the complainant signs a waiver of their confidentiality. A complaint can, therefore, be filed against a physician without the physician knowing the identity of the complainant.
The anonymous complaint process unfortunately makes it easy for a bad-faith complainant to use the Medical Board’s disciplinary process to attack other physicians whether they are rivals to the complainant's practice or have a former employment relationship. Both in my own practice and through discussions with other attorneys, I have encountered other instances where a complaint appears to have originated from an insurer seeking to use the Board as leverage in a payment or coverage dispute with a physician. I have personally been involved in cases where an anonymous complaint originated from a disgruntled spouse. In any case, the Board's anonymous complaint process generally immunizes the complainant from scrutiny or consequences should a complaint be filed in bad faith. Additionally, without their identity, the targeted physician is often precluded from presenting clear evidence of bad-faith or motive on the part of the complainant. Moreover, because anonymous complaints frequently originate from persons with a medical background who are also familiar, sometimes intimately so, with a licensee's practice, they can be crafted in such a way to cause significant damage to the target physician.
The political process has thus far provided no relief from the anonymous complaints process. Two bills have been introduced in the Legislature to change the complaint process and make it more transparent. The Bills, House Bill 3816 introduced and presented to the 81st Legislature and House Bill 1013 presented to the 82nd, would have made it impossible for the Board to accept anonymous complaints. The Bills would also have provided physicians better protection from Board claims of inadequate documentation and would prohibit Board discipline for incidents that occurred more than 7 years ago and for documentation errors that did not endanger the patient. To date, neither Bill has been passed, and so the concerns about anonymous Board complaints continue.
If you have received a complaint letter or investigation letter from the Board, it is in your best interests to consult with an attorney to best evaluate your options. This is all the more so if you believe the complaint may have been filed in bad-faith as it has been my experience that these often come in a series with each subsequent complaint becoming increasingly difficult to address.
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.Continue Reading...
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.
The Licensure Committee of the Texas Medical Board (TMB) met at its last scheduled meeting on Thursday August 26, 2010. The Committee heard approximately 39 applicants who were on the agenda in conjunction with their applications for a full Texas medical license / physician registration or a physician-in-training permit (PIT). Due to the size of the agenda the Licensure Committee divided into two sub panels. The meeting began at 8:30 am as opposed to the customary 10:30 am or 12:00 noon start times of previous meetings. A Texas Medical Board attorney was assigned to each sub-panel to serve as advisory counsel to each sub-committee.
The typical issues involved in Texas Medical Board licensure cases were heard which included:
- Issues relating to the provision of false or misleading information on the application concerning academic probation or criminal history;
- Eligibility issues relating to criminal history and good professional character;
- Discipline by peers including residency programs and/or medical schools;
- Clinical competency concerns due to malpractice history;
- Inability to practice due to intemperate use of drugs or alcohol or a history of substance abuse / chemical dependency relapse;
- Inability to safely practice medicine due to a physical or medical condition;
- Time out of the clinical practice of medicine;
- A combination of any of the above.
About one-half of the applicants were represented by attorneys. Our firm’s physician licensing lawyers represented four applicants and all were granted their full Texas medical license or physician in training permit. In general the applicants fared better than the last meeting, but there were a number of denials and determinations of ineligibility. A review of these determinations and the minutes associated with each allow for the conclusion that it is necessary to pre-file rebuttal material with Staff well in advance of the meeting and for each doctor to have a good plan of attack for their few moments in the spotlight.
If you are a physician and are faced with the reality of going before the Texas Medical Board in conjunction with your application for a Texas medical license representation from an experienced Texas physician licensing attorney may help make the difference between the granting of your license and a license denial. Please feel free to call the Leichter Law Firm for a free consultation regarding your physician licensing case with the Texas Medical Board -512 495-9995.
In its last session the Texas Legislature passed a new law concerning Pain Management Clinics. The law, which becomes effective on September 1, 2010, makes it illegal to own / operate a Pain Management Clinic in Texas without first obtaining a certificate from the Texas Medical Board. Although it appears benign enough at first blush, upon closer review of its certification requirements the law’s fairly draconian nature comes into focus.
The new law bars individuals and entities from certification in any of a long list of circumstances. To summarize, if the owner/operator of a pain management clinic, their employee, or any person or entity who contracts with such a clinic have any of the following in their record, they are not eligible for certification by the Medical Board:
1) Any individual who has had restrictions placed on or been denied a certificate or license by any federal or state agency authorizing them to prescribe, administer, supply, or sell a controlled substance;
2) Any person who has been subject to a disciplinary action by a licensing entity (such as the Texas Medical Board) for conduct relating to the inappropriate prescribing, dispensing, administering, supplying, or selling of a controlled substance.
3) Any individual who has been convicted of, pled no contest to, or received deferred adjudication for any felony;
4) Any individual who has been convicted of, pled no contest to, or received deferred adjudication for a misdemeanor when the underlying conduct relates to the distribution of illegal prescription drugs or a controlled substance as defined in the Medical Practice Act.
In a single stroke this new regulation threatens to close numerous independent pain clinics in Texas. In my experience it seems overly burdensome, strict, and unreasonable to issue such blanket restrictions on those involved in pain management. This is especially true as those physicians whose primary practice involves the treatment of chronic pain are typically subject to some of the greatest scrutiny by the Medical Board. The TMB has a decidedly conservative view on pain medicine and this is reflected in the number of Board Orders and other disciplinary actions which focus on this area. The new law has a “one strike and you’re out” mentality that does not provide for second chances, the opportunity to redeem oneself, or provide for the possibility that a previous disciplinary action may have been unwarranted or even plain wrong. All a physician needs is a single mark on their record where the Board disagreed with their treatment or prescription plan for a single patient and they will be barred from receiving a certification. Owner’s face a particularly onerous burden as the slightest infraction by one of their workers or contractors in or outside the workplace could mean the loss of the clinic’s certificate and, thus, their business.
I find it regrettable that nothing in the law permits a Pain Management Clinic currently in operation to be “grandfathered in” and given a certificate. Even if clinic has years of demonstrated compliance with all previous rules and regulations its owner could still be denied a certificate and immediately shut down if any of the stipulations above apply. Meaning, that on September 1, 2010, many owners with past infractions may lose their business outright, and those owners who have never faced disciplinary actions will now be faced with firing valuable and loyal employees or contractors who regrettably made mistakes in their past. This is especially troubling as physicians who signed Agreed Orders or accepted plea deals years in the past now face a serious consequence which was completely unforeseen at the time. If these individuals had know the future effect of such settlements, they may been chosen to more strenuously contest past allegations.
The only recourse for a Pain Management Clinic who will not be able to meet the criteria for certification is to attempt to restructure their business so they can meet one of the specified exemptions. In addition to state and federal facilities, the new law exempts hospitals, including outpatient facilities and clinics, as well as hospices. Realistically, the only real option available is sell or rearrange the clinic so that it is a subdivision of a local hospital. This pain management laws also raises potential federal preemptions issues depending on how it is enforced by the Medical Board.
It is unclear what will be the final impact of the new credentialing requirements. What can be said with confidence, however, is that pain management clinics have become a highly regulated sphere in Texas.
Texas Medical Board Moves Away from Rehabilitation Orders with Adoption of Texas Physician Health Program
Currently, physicians and physician assistants with a history of substance abuse, mental illness, or other medical conditions which could affect their ability to safely practice medicine have been eligible to receive a rehabilitation order from the Texas Medical Board. Pursuant to a set of specific criteria, physicians and PA’s with such issues are also frequently able to have such orders be confidential from the public and colleagues.
In line with general national trends in regards to medical licensing, this current arrangement is set for a major change next year due to the passage of Senate Bill No. 292 by the Texas Legislature. This bill adds Section 167 to the Medical Practice Act thereby establishing the Texas Physician Health Program (TPHP) as a replacement for the old regime of rehabilitation orders administered and monitored through the Medical Board. Somewhat similar to the Professional Recovery Network of the Texas State Board of Pharmacy and Texas Dental Board, the Texas Physician Health Program is designed to become the first stop for impaired and ill physicians. Like the older rehabilitation order system, the Physician Health Program would be directed towards impaired and mentally ill physicians, although it would still also cover other licensees with rarer medical conditions which could affect their safe practice.
Once the TPHP springs into existence on January 1st, 2010, a physician can now be referred into the Physician Health Program in lieu of an investigation and disciplinary action by the Medical Board. Virtually anyone can refer a physician into the Program, including the Board, a hospital, another physician, a physician health and rehabilitation committee, or a concerned member of the public. Importantly the new law also notes that the Physician Health Program is not allowed to accept a referral which also involves a violation of the standard of care as a result of the use of drugs or alcohol or a boundary violation with a patient or their family. Also significant, the Medical Board now has the authority to make the granting of an initial license contingent on the physician’s agreement to enroll and participate in TPHP.
Similar to the current rehabilitation orders, a referral to TPHP and participation therein remains completely confidential unless the physician or physician assistant leaves the program, fails to adhere to their participation agreement, or otherwise is determined to pose a risk to patient safety by Program Staff. In such an event, the Physician Health Program will forward the licensee’s file to the Medical Board and the TMB will likely open a disciplinary investigation.
What is still left unclear is the process when a licensee is referred by a non-Board individual to the Physician Health Program for an impairment or mental health issue that does not involve a standard of care violation and that physician decides not to enroll in the Program. It has been my experience serving as an attorney in cases involving PRN and the Board of Nursing’s TPAPN program that the peer assistance entity is then required to forward the matter to the Board.
In the same vein, it is also unclear as to what extent the physician and physician assistant will be notified that they can hire an attorney to represent them before the Texas Physician Health Program. As it stands now, basic due process concerns require that the Medical Board inform physicians of their right to legal representation whenever they open an investigation. This is a potential issue as based on my dealings with PRN and TPAPN, a peer assistance program like TPHP, while having nothing but good intentions, is unfortunately often beholden to their governing Board. In such situations the threat is that they could become a mere instrument of the Board collecting potential damaging evidence and admissions from the physician while acting under the guise of being an independent entity.
Nevertheless, I am cautiously optimistic as I believe if run well, the Texas Physician Health Program has the potential to be a great resource for impaired and mentally ill physicians and consequently their patients and the public at large. It remains to be seen, however, how the Program performs once it launches into action at the start of the new year.
Within the past three weeks my firm has represented two physicians whose licenses had been summarily revoked by the Texas Medical Board pursuant to alleged violations of their Agreed Orders. In both cases the Medical Board had failed to follow proper procedure and adhere to the terms of each physician’s Agreed Order prior to revoking their registrations.
The first case involved a physician on a long-standing monitoring order. The Automatic Revocation Order reneged his license on the stated bases that he had failed to continue timely payments with the Board’s drug testing company and he had submitted several “dilute negative” specimens. First and of most importance, this physician was never provided proper notice of the informal show compliance proceeding and accordingly never showed up at the hearing, directly resulting in the revocation. The notice of hearing had been sent to the physician’s old address despite the fact that he had previously filed the appropriate change of address form with his compliance officer.
Furthermore, the specific terms of his Agreed Order did not allow the Texas Medical Board to revoke his license for either late payments to the drug testing company or submitting dilute negative samples. In summary, not only did he not receive notice of the show compliance hearing, but the stated reasons for his revocation were illegal under his existing Board Order. Thankfully due to the quick intervention of my firm, the Executive Director of the Medical Board agreed to overturn the revocation and set the matter for a new show compliance proceeding. Unfortunately, my client had in the interim already lost his job and been subject to a public HIPDB report noting the revocation.
The second physician was revoked on the grounds that he had not kept up with his CME requirements. Again, this doctor was not given proper notice that the Medical Board was considering cancelling his registration until less than a month before the deadline date and moreover this was conveyed in an ambiguous letter discussing other matters. Understandably, the physician sent in a letter to the Board letting them know that he was presently enrolled in a Masters of Health Administration program and accordingly would be unable to complete the CME within such a short timeframe.
Apparently disregarding the letter, the Medical Board went ahead and cancelled his registration. The physician subsequently hired me and I was able to have the cancellation overturned through a letter to the Board’s Executive Director. The Board also agreed to give him additional time to complete the CME.
I think the experiences of these two clients demonstrate that timely intervention by counsel can make a huge difference and greatly mitigate the negative impact of an adverse Board action. Any physician facing a Board issue should seriously consider conferring with an experienced attorney so that they can head off such situations before they can harm their practice and reputation.
Recent rule changes by the Texas Medical Board will be taking effect on June 19th. Licensed doctors and licensed physicians in the state of Texas ought to be aware of these changes. The attorneys of the Leichter Law Office has the experience and expertise necessary to assist medical licensees or medical license applicants in these and other issues relating to your medical license.
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22 Tex. Admin. Code § 173.1(b)(1) (2009) (Tex. Med. Board, Profile Contents)
(a) The Texas Medical Board (the “board”) shall develop and make available to the public a comprehensive profile of each licensed physician electronically via the Internet or in paper format upon request.
(b) The profile of each licensed physician shall contain the following information listed in paragraphs (1) – (27) of thus subsection:
(1) full name as the physician is licensed;
(2) – (27) (No change.)
Subsection (b)(1) previously read “full name as the physician requests that it be published;” with this rule change in effect the physician’s name will be published as it reads on the license, not when the physician requests it be published.
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22 Tex. Admin. Code § 190.8(1)(L)(iii) (2009) (Tex. Med. Board, Violation Guidelines)
Notwithstanding the provisions of this subparagraph, establishing a professional relationship is not required for a physician to prescribe medications for sexually transmitted diseases for partners of the physician's established patient, if the physician determines that the patient may have been infected with a sexually transmitted disease.
This new subsection will be amended to the current § 190.8(1)(L). A physician need not establish a professional relationship with the partner of a patient to prescribe medications for STDs if the patient with whom the physician has a professional relationship has the STD. This new subsection seems to allow the physician greater flexibility in controlling the spread of STDs quickly and effectively.
Nevertheless, the Leichter Law Firm recommends being aware of the partner’s medical history and relationship with your patient in order to protect yourself and your license to practice in Texas.
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Whether registering your medical license with the Texas Medical Board, defending yourself in an investigation before the Texas Medical Board, or concerned that your medical license or practice might be in danger, you will need a competent and experienced medical license attorney to assist you. Going it alone against the Texas Medical Board risks your medical license and your livelihood. The attorneys at the Leichter Law Firm have the experience and expertise in dealing with the Texas Medical Board and assisting doctors and physicians in all of their medical licensure needs.
The Texas Medical Board is presently lobbying the State Legislature to pass a new bill which would grant them extensive new regulatory authority over pain management clinics. Available for public view on the Texas Legislature’s website as House Bill No. 4334, this legislation would enact Chapter 167 of the Texas Medical Practice Act and extend to the Board far-reaching power over the practice of pain medicine in Texas. As any physician specializing in this area can attest, this is concerning as the Board’s track record in regulating the practice of pain medicine is shaky at best.
The proposed bills’ coverage encompasses all “pain management clinics” which in turn is broadly defined as:
a publicly or privately owned facility for which a majority of patients are issued a prescription
for opioids, benzodiazepines, or barbiturates, including carisoprodol.
There are a number of exceptions for clinics associated with medical schools, hospitals, certain hospices, and facilities maintained and operated by the federal or state governments, however, the proposed scope and impact of the statute is otherwise quite extensive.
There are two crucial features of the bill. The first is that it requires covered pain management clinics to obtain and maintain a special license through the Texas Medical Board. This is independent of any individual state medical license held by the owner/operator and any physicians employed by or on contract with the clinic. This is critical because where there is a license, there is regulation and the bill does not disappoint in this regards. The proposed statute mandates that the Board implement rules necessary to address an extensive set of issues, including:
1) the operation of the clinic;
2) personnel requirements of the clinic, including requirements for a physician who practices at a clinic;
3) standards to ensure quality of patient care;
4) licensing application and renewal procedures and requirements;
5) inspections and complaint investigations; and
6) patient billing procedures.
Make particular note of number 3 above; depending on how this is interpreted and implemented, this could be used by the Medical Board as a carte blanche for them, through this grant of rulemaking power, to effectively set the standard of care in pain management. As an attorney who had represented many physicians in pain management cases, I find this particularly disturbing as it has been my experience that the Texas Medical Board usually pursues these cases based on an out-dated and extremely conservative view on what is the appropriate standard of care and when and how a patient with chronic pain issues should be treated.
The second striking feature of the bill is its severe restrictions on who can own, operate, or work at a pain clinic. The law would bar anyone who has ever been denied a license under which they may prescribe, dispense, administer, supply, or sell a controlled substance, had such a license restricted, or been the subject of a disciplinary order related to drugs and alcohol from owning or operating a pain clinic, serving as an employee at one, or contracting to provide services with such a clinic. This barrier is absolute; it does not matter how long ago the restriction, denial, or disciplinary action occurred nor whether any restriction is still active. No consideration is taken of the facts and circumstances surrounding the prior disciplinary action, subsequent rehabilitation, or the length of a person’s sobriety.
Moreover, an additional provision prevents any person from owning or operating a pain clinic if that individual has been convicted or pled nolo contendre to either 1) any felony or 2) a misdemeanor which is related to the distribution of illegal prescription drugs or a controlled substance. Finally the owner/operator is required to be on-site for at least 33 percent of the clinic’s operating hours and review at least 33 percent of the total number of patient files of the clinic.
While there is a genuine need to ensure adequate oversight of pain management clinics, I fear that if passed the above law will likely only increase the regulatory burden on pain doctors in Texas, a group that already suffers from a disproportionate number of disciplinary actions and investigations led by the Medical Board. Until the Texas Medical Board discards its out-of-date views on the treatment of chronic pain and embraces the new medical consensus that this is real, persistent, and under treated problem, I fear that the proposed bill will only make it more to difficult to safely practice this needed discipline in Texas.
I would also like to stress in closing that any pain physician who is being investigated by the Texas Medical Board should contact an attorney immediately as the consequences of going it alone are typically disastrous. The Board routinely seeks a revocation in such cases on the assumption that the physician must be running a “pill mill” dispensing a standard set of medications without regard to each patient’s individual condition and needs. Even when a revocation is not on the table other common sanctions include restrictions on the physician’s DEA and DPS certificates, restrictions on the doctor’s ability to supervise physician assistants and nurse practitioners, and the imposition of a chart monitor. Any of these sanctions can be considered a restriction on the physician’s license and hence led to exclusion from third-party networks and other credentialing bodies, with the former being a potentially fatal development for many practices.
If you are being pursued by the Texas Medical Board in a pain management matter it is well worth your interest to contact an attorney with experience both before the Board and in administrative litigation generally and in representing pain specialists and their clinics.
Now that 2008 has come to a close, it has become clear that the Texas Medical Board has made significant strides in reducing the amount of time it takes to process first-time applicants for a state medical license. A combination of far-reaching medical malpractice reform and a growing population, has led to a large influx of new doctors seeking to practice in Texas during the past few years. Initially, the Board’s licensure department had trouble coping with the new strain leading to a long waiting period for physicians, even those who did not encounter any eligibility issues during the licensing process. As an attorney for many physicians who did face eligibility problems- such as a prior disciplinary or criminal history-, I remember waiting for a year and sometimes even more for the Medical Board to complete their initial processing of an application let along the initiation of their investigation or the scheduling of an appearance before the licensing committee.
Through the hiring of new licensing analysts and the streamlining of the application process, however, the Medical Board has cut down the amount of time a doctor spends in the licensing process, particularly those who lack any eligibility issues. One such innovation is the Board’s new Licensure Inquiry System of Texas (LIST). LIST allows each physician to obtain an online status page for their application. It lists each item required as part of their application and notes whether or not they have been received. This is a welcome change as in my experience a big part of the problem was the large number of different documents needed by the Board and the difficulty for both myself and applicants in learning exactly what was still needed and confirming when it was in receipt.
For example, I recently represented a physician who had been trying for over three years to obtain a Texas medical license. Prior to seeing me she had submitted her application three times and had even hired an attorney at one point to assist her in the process. Unfortunately, this attorney was not entirely familiar with the Texas Medical Board’s procedures and had been unsuccessful. Part of the problem for my client was that she had some eligibility issues which meant the Board was requiring her to submit various documents and letters from her medical school, residency program, and employers. The Board mandated that these be sent directly to them from their authors in a special sealed format. Each time my client had dutifully requested that the relevant parties send them in the specified format only to be frustrated when they were either sent incorrectly or the Board failed to either confirm or deny their receipt. Even with numerous extensions she would invariably fail to have her entire application completed by the deadline and therefore have to completely restart the application procedure.
Thankfully I was recently able to help this physician through the process and obtain her license. Hopefully, the new procedures such as LIST system will help avoid such situations in the future. Regardless the Board still needs to transfer its progress on the processing of applications from problem-free applicants to those from physicians with eligibility challenges.
As you can perhaps tell from the above example, the licensing process can sometimes be a Byzantine and daunting process for physicians, especially those who can expect to confront eligibility issues. Physicians who anticipate or who are already confronting such obstacles should seriously consider seeking the aid of an attorney familiar with navigating the Texas Medical Board’s licensing procedures. The hand of an experienced counsel can significantly cut down on the stress and confusion attendant with the application process and help ensure that you come out the other end with a state medical license.
When a physician is involved in a disciplinary proceeding with the Texas Medical Board, Department of Public Safety, or other governmental entity that will likely result in some variety of Board order, it is critically important to carefully craft the final agreement so as to avoid trouble down the line. All provider networks have standing policies regarding the credentialing of physicians who have been sanctioned by a state agency. Many of them can be particularly harsh and can bar a physician from inclusion in their network if they have an active disciplinary order.
Frequently, the physician’s well-meaning but uninformed attorney will obtain, and advise their client to accept, a disciplinary order that imposes a relatively minor sanction. Later, the doctor, as required, discloses the occurrence of the Board Order on their credentialing renewal applications. The Provider networks will then deny re-credentialing on the basis of the disciplinary order. The physician is then put in the difficult position of being fully licensed to practice yet suddenly unable to see a potentially broad section of their former patients. Absence of credentialing with key networks can also jeopardize a physician’s position in a group practice or institutional setting.
An experienced attorney with a full understanding of the possible implications of any given outcome can work from the start with the physician and the Texas Medical Board with an eye to ensuring a result that will not damage that doctor’s standing within provider networks and place them in a good position to obtain credentialing with new networks in the future.
Outside of an outright dismissal, this can oftentimes be done through an order that is remedial, not disciplinary in nature. Such an order could provide for additional CME hours or the payment of an administrative penalty. This can be particularly appropriate where the allegations relate to inadequate record-keeping, over-billing, or a minor violation of a standing Agreed Order. An added benefit of such an agreement is that they typically terminate as soon as the penalty is paid or the extra CME hours are completed removing them from the purview of many provider networks’ policies excluding physician’s who are under active Board Orders. Such an agreement also does not involve any restrictions on a physician’s practice or prescribing authority, another plus both on its own and when dealing with insurance networks.
Another option may be to seek a confidential rehabilitative order. This often applies to physicians with chemical dependency or intemperate use issues. Such a confidential order remains secret as long as the physician remains in compliance and does not have to be reported to the National Practitioner Data Bank or disclosed to provider networks.
Either of the above choices typically requires careful preparation of the client and their case for presentation to the Medical Board. It may involve the gathering of extensive mitigating and remedial evidence. The key point is to convince the Board that the licensee has recognized and accepted responsibility for their error and has taken the remedial steps necessary to prevent any reoccurrence of the underlying allegations such that a minor order would be warranted in their case.
This difficult task is best accomplished by an attorney familiar with the Texas Medical Board and its procedures and who is also aware of the potential consequences a given order can have on a physician’s credentialing status in provider networks. Trying for the best resolution rather than a merely acceptable one will pay off later by avoiding the additional stress, attorney’s fees, and lost patients that travel with credentialing denials.
In recent years, I have witnessed an increase in the recreational use of dextromethorphan among Texas doctors. An ingredient found in many common cold medicines, dextromethorphan acts as an effective cough suppressant by operating as a narcotic analgesic thereby relieving upper respitory irritation. When administered at higher, non-therapeutic doses, however, the drug causes dissociative hallucinogenic effects that have been compared to those caused by ketamine and PCP.
At a lower recreational dose, “dex” can lead to a mild euphoria. At higher levels the effects include an intense euphoria, vivid imagination, and closed-eyed hallucinations. Taken to extreme levels the user will experience complete alterations in consciousness which can even extend to temporary psychosis. While physical addiction is rare, psychological addiction is likely, and long-term or intense use can cause permanent damage to chemical receptors in the brain.
Increased awareness of dextromethorphan abuse has caused most sellers of cough medicines containing the drug to move it behind the counter. This obstacle is less of a challenge to physicians who have ready access to prescription versions of the same medicines. One of the most troubling aspects of this trend is the fact that the drug screens used by the Texas Medical Board will not detect dextromethorphan. This in part probably explains its popularity among chemically dependent Texas doctors. While dextromethorphan is not currently included in the Controlled Substances Act this could easily change as awareness of its use as a recreational drug spreads.
Unfortunately, use of dextromethorphan and its attendant hallucinogenic effects present serious practice risks and potentially imperil patient safety. Licensees should also be aware that a positive drug screen is not needed for the Texas Medical Board to pursue disciplinary action. Many of the complaints commonly received by my firm consist of nothing more than an allegation that the doctor “seemed confused and out of it” or “like he was drunk” while on duty. It should also be obvious that the Board will vigorously pursue any allegation that a doctor is abusing their prescriptive authority to obtain drugs for recreational use.
Any doctor being investigated or prosecuted for dextromethorphan use should contact an attorney with experience before the Texas Medical Board so that they are aware of their options. A common course of action is to have the doctor evaluated by an independent expert in addiction to determine whether or not they are chemically dependent. If so, then self-referral to a quality drug rehabilitation center is often the best choice for both the doctor and for reaching a beneficial agreement with the TMB. As in all cases, disciplinary charges based on intemperate use and/or abuse of prescriptive authority have their own set of complex issues that is typically better handled by an attorney with experience before the Medical Board.
Texas physicians should be aware that over the next two months the Texas Medical Board plans to host several public meetings in various locations throughout the state. The Town Hall-style events seem to be a positive response to recent criticism that the Board spends too much time pursuing minor disciplinary matters and fails to adequately educate physicians and credentialing entities on what the TMB is looking for as part of the application process. In fact, Board President Dr. Roberta Kalafut is quoted in the press release (a link to which can be found below) as recognizing that “the impressions we have as regulators may not mirror the impressions of licensees.”
As an attempt at meaningful public dialogue, the Texas Medical Board’s Town Hall program should be seen as a positive initiative. This type of outreach is needed after a year that saw the resignation of Executive Director Donald Patrick amid cries of conflict of interest, a lawsuit filed by attorneys for the Association of American Physicians and Surgeons, and widespread questioning directed at the Board’s at times overly zealous prosecution of minor regulatory infractions. Acknowledging and acting on public criticism can do a lot for repairing trust between the Board and Texas doctors.
The meetings will also include a seminar program designed to guide recruiting and credentialing entities through the application process as it relates to the Texas Medical Practice Act. The press release which includes dates and locations for each meeting can be found at the link below.
In response to mounting criticism from the public and medical community, the Texas Medical Board has adopted a new fast-track procedure available for certain violations of the Medical Practice Act and Board Rules. The new system bypasses the standard procedure where a physician would be investigated for 180 days followed by another potential 180 days of litigation that could then culminate in a full hearing before the Board or even a contested case proceeding before the State Office of Administrative Hearings. The problem was that this lengthy, stressful, and potentially expensive process applied to every alleged violation no matter how minor.
Under the new regime licensees accused of a violation that is only punishable by a fine and that is not accompanied by any additional charges have two options: They may either agree to the charges and simply pay the fine or dispute the charge in a writing which will be reviewed by a board committee. The third option is to opt out of the fast-track system altogether and undergo the traditional and more intensive investigation and hearing procedure.
Violations eligible for fast-track consideration include but are not limited to:
- failure to provide medical records in a timely manner;
- failure to file a change of address with the Board;
- failure to sign a death certificate in a timely manner; and
- failure to obtain required continuing medical education.
A licensee can choose to fast-track an investigation up to three times, but only once for a given violation. Also note that allegations of inadequate patient care or unprofessional conduct are not fast-track eligible.
Texas physicians should be aware that although the new procedure can be convenient and cost-saving, any sanction imposed will still appear on their record and could have real consequences to their practice. Any licensee who is unsure of the potential impact an admission of guilt could have on their practice or who simply does not feel they have done anything warranting an administrative sanction would still be well advised to consult an attorney experienced in representation before the Texas Medical Board.
Donald Patrick, the tough and criticized Executive Director of the Texas Medical Board (TMB) announced yesterday that he will be stepping down in August as he turns 70. Dr. Patrick noticed the Full Board as well as Board Staff during a committee meeting of the Board.
Although not specifically cited, Dr. Patrick’s resignation comes after two legislative hearings wherein he and other members of the Board and Board Staff took heat from state representatives. A search will begin for his replacement; however, if no one is found prior to his departure attorney and Director of Enforcement Mari Robinson will assume his role as interim director.
Dr. Patrick, although harshly criticized by many, has been responsible for changing an agency that was largely condemned for not doing its job. Through aggressive agency restructuring and by taking its charge to heart, the Texas Medical Board under Dr. Patrick’s leadership completely turned itself around and is now viewed as one of the toughest, most scrutinizing Medical Boards in the United States.
Physicians throughout Texas will largely see this as a step in the right direction as the number of frivolous complaints against Texas doctors has increased markedly in the last few years. Public perception of Patrick’s departure may nevertheless force the search in the direction of a similar minded replacement.
Oftentimes a physician staring down a licensing action before the Texas Medical Board faces not one, but two threats to their medical practice. If the doctor depends on privileges to practice at the local hospital, the alleged misconduct that sparked the TMB investigation may also lead to an inquiry by the hospital’s peer review committee. This relationship is a two-way street as under state law a peer review committee must report to the TMB the results and circumstances of any peer review that adversely affects a privileged physician. Such a committee must also report when a physician surrenders their privileges in lieu of subjecting themselves to a peer review. See §§ 160.002 and 164.051(a)(7) of the Texas Medical Practice Act. Upon receipt of this information, the Medical Board will start their own investigation which will very likely lead to a licensing action. This is a complex area of the law dealing with issues related to state medical licensing, privileges, hospital by-laws, and confidentiality to name a few. It readily illustrates the house of cards nature of the legal issues surrounding medical practice: remove one card and the rest can quickly come tumbling down.
The Medical Practice Act generally treats peer review records as strictly confidential and only available after the physician waives privilege, however, the Texas Medical Board, along with other state licensing boards and certain government agencies, is legally entitled to the records of a negative / adverse peer review. § 160.007. Yet, the Act still requires the TMB and the State Office of Administrative Hearings to maintain the strict confidentiality of such records. § 160.006(d).
The peer review process itself is governed by each individual hospital’s set of by-laws, a complicated set of rules setting out the grounds for when a physician’s privileges can be suspended or revoked and outlining the procedures which the committee and hospital must follow. Most by-laws provide that an attorney will be on hand to provide the committee with any needed legal advice. Furthermore, another lawyer may be responsible for presenting the case in favor of restricting, terminating or suspending the physician’s privileges or scope of practice. The physician is also allowed to retain their own attorney to represent their interests before the committee.
Because the peer review committee is generally made up of physicians and administrators from the hospital and local area, one of the dangers of this procedure is that it has the potential of being misused by a disgruntled or opportunistic colleague. A few of the reported cases have included particularly egregious situations where rivals have inappropriately used the review as a platform for an inquisition against every real or perceived past mistake of the doctor. Texas statutory and case law rightly recognizes this danger and provides powerful civil penalties against fraudulent peer review in order to protect the physician. As a result, most hospitals are advised to ensure that all or nearly all of their committee membership consists of non-local physicians who do not compete with the physician under review so as to ensure a disinterested process.
The interplay between the Texas Medical Practice Act and a hospital’s by-laws can be complex. On its own a negative / adverse peer review action can trigger the disciplinary process at the Texas Medical Board while much of the conduct that can beget a peer review can also be grounds for an investigation and disciplinary sanction at the TMB. See § 164.051(a)(7). A negative result under either can be ruinous to a physician. Potential consequences include the loss or restriction of the physician’s state medical license, their privilege to practice at a particular medical institution and the initiation of review procedures by provider networks. The likelihood of a positive outcome is best secured at the hands of an attorney with ample background in each environment who is knowledgeable of the likely impact a given result in one will have on the other.
Despite the Texas Code of Criminal Procedure’s clear admonishment that a person’s successfully completed Deferred Disposition (available for Class C offenses in Municipal and Justice Courts only) cannot be used against them, the Texas Board of Nurse Examiners and Texas Medical Board continue to use such a record as a basis for disciplinary investigations and sanctions. I recently represented a client physician who had been given a deferred disposition for Public Intoxication -a Class C misdemeanor. Even though my client successfully completed their deferral requirements, the TMB nevertheless dug this fact up and used it to try and sanction the physician’s license. The Texas Board of Nursing is also guilty in this area. Despite the fact that an attorney / prosecutor and a criminal judge decide that a deferred disposition is warranted, licensing boards and administrative agencies routinely attempt to impose discipline anyway. Unfortunately, all too often unrepresented applicants and lawyers practicing outside of their scope fail to realize the remedies available to them.
Besides being bad policy and simply unfair, the practice is also arguably illegal under the Code of Criminal Procedure. The Code specifically states that once the complaint is dismissed upon the person’s successful completion of deferred disposition, “there is no final conviction and the complaint may not be used against the person for any reason.” Texas Code of Criminal Procedure § 45.051(e). Yet, the Medical Board and the Texas Board of Nursing frequently use such criminal history as the foundation of investigations, licensure actions and application denials. The statute’s prohibition against the use of the disposition goes to the very reason for having deferred disposition in the first place. It is designed to give the minor criminal offender a second chance at a clean slate. The policies of the Texas Medical Board and the Board of Nurse Examiners undermine this purpose and needlessly burden their license and discipline divisions with minor offenders that pose no danger to Texas patients. Ultimately when this predicament the licensee should seek the remedy of expunction which is availalable in almost all cases where a defferred disposition has been succesfully completed.
In late December of last year, the Association of American Physicians and Surgeons filed a federal lawsuit against the Texas Medical Board seeking various injunctive and declaratory relief against what it characterizes as the abusive practices of the Board. The AAPS complaint contains numerous allegations running the gamut from Board manipulation of the anonymous complaint process, a conflict of interest by the former head of the disciplinary committee, an ongoing policy of arbitrarily rejecting the recommendations of Administrative Law Judges, breaches of confidentiality during the disciplinary review process, and Board retaliation against physician criticism.
In a press release, Executive Director of the AAPS, Jane M. Orient stated that the AAPS felt compelled to file the lawsuit on behalf of its Texas members given that individual physicians were too afraid of possible TMB retaliation to take action on their own. The AAPS identifies itself as a non-profit entity with thousands of members throughout the country, including Texas, dedicated to preserving the traditional doctor-patient relationship and effective medicine. One of the organization’s overriding purposes is identified in their complaint as the protection of its members “from arbitrary and unlawful government action” such as that alleged to have been perpetrated by the TMB.
A central allegation of the complaint claims that Texas Medical Board President Roberta Kalafut actively manipulated the anonymous complaint process to harass and discipline physicians, including some of her Abilene competitors. According to the pleadings, Mrs. Kalafut had her husband file the anonymous complaints which she then ensured were actively pursued by the Board. Mrs. Kalafut has responded to the press by stating that this claim is completely untrue, noting that none of the anonymous complaints which led to disciplinary action came from Abilene. The AAPS complaint also targets outside abuse of the anonymous complaint process. It alleges that a New York insurance company arranged to have an anonymous complaint filed against a Texas doctor who had treated five of its insured members, who were all pleased with their treatment, so as to avoid paying their costs. The suit seeks an injunction against future receipt of anonymous complaints and a declaratory judgment that such complaints violate a physician’s due process rights under color of state law.
The second main allegation involves Keith Miller’s tenure as Chairman of the TMB’s Disciplinary Process Review Committee, a topic I have previously blogged about. Mr. Miller resigned in the fall of last year amid criticism of his continued position as disciplinary chairman while he simultaneously served as a plaintiff’s expert witness in scores of medical malpractice cases throughout Texas. The complaint points out this conflict of interest and Board officials’, such as President Kalafut, admitted awareness of it as reason for the federal court to compel the reopening of the disciplinary cases heard by Miller.
The final primary allegation of the AAPS involves the TMB’s arbitrary rejection of negative administrative rulings. The complaint itself points out a case where the TMB sought a disciplinary sanction against a doctor’s license who had requested, as per his hospital’s standard rate, that a patient pay $81 dollars for a copy of her medical records. In response to the patient’s complaint the Board’s disciplinary committee, headed by Keith Miller, demanded that the doctor pay a $1000 fine as part of a sanction that would be reported to the National Practitioner’s Databank. After the doctor appealed the case and an Administrative Law Judge ruled unequivocally that the TMB had no legal authority on which to take such an action, the Board simply reinstated its findings and doubled the fine. The suit seeks an injunction against any further arbitrary rejections of administrative rulings by the TMB and a declaratory judgment that such rejections violate both due process and equal protection.
Finally, as additional matters the complaint alleges that physician’s inability to speak out against the TMB and its policies for fear of retaliation, amounts to a denial of free speech. In support of this claim, the complaint points to several instances where Board members have allegedly publicly defamed doctors critical of the TMB. The suit also attacks the Board for allegedly giving confidential records regarding a physician to a hospital with which the doctor was involved in a private dispute.Continue Reading...
The Texas Medical Board came under fire before the House Appropriations Committee on Tuesday for what its critics identify as the Board’s overemphasis on petty physician malfeasance at the expense of protecting the public from bad doctors. Representatives like Fred Brown, asked Mari Robinson and Dr. Roberta Kalafut to respond to physician charges that they spend too much time and money on disciplining doctors guilty of such minor violations as over-billing their patients by $65.00. Opponents of the Board’s practices note that the resulting investigation and disciplinary process associated with even such a small violation can result in large legal fees and other unwieldy burdens on the physician.
Other committee members expressed concern with the TMB’s practice of receiving and pursuing anonymous complaints. Critics have pointed out the Board’s difficulty in investigating such complaints and its clear vulnerability to abuse by the anonymous complainants. The recent resignation of Dr. Keith Miller provided further fodder for the hearing. Dr. Miller resigned from the Board’s disciplinary committee in September after a new law barred members from concurrently serving on the Board and as an expert in medical malpractice suits. Before the passage of the new rule, members of the public had decried the clear conflict of interest presented by Dr. Miller’s employ as a plaintiff’s expert in Texas.
In response to the criticism, the TMB’s Director of Enforcement, Mari Robinson, stated that the Board was considering adopting a rule that would streamline the process for minor violations. Such a rule, Ms. Robinson stated, could aim to achieve resolution of such cases within thirty to sixty days.
Dr. Kalafut, President of the Board, acknowledged that while 99 percent of Texas doctors have never faced a disciplinary action, the number of complaints received in recent years has undergone substantial growth. While the TMB takes public complaints seriously, Dr. Kalafut underscored that as a state agency the Medical Board must follow the current law on what constitutes a violation and how the disciplinary process can proceed.
The resignation last week of Keith Miller, MD, a 2003 Perry appointee to the Texas Medical Board, has sparked an outpouring of relief and further recriminations from the beleaguered doctor’s many critics.[i] A longtime member of the TMB’s disciplinary committee, Dr. Miller claims his resignation is due to the enactment of a rule law barring Board members from serving as expert witnesses in medical malpractice cases. Dr. Miller, who has a long history of serving as a plaintiff’s expert in such cases, believes his resignation was necessary to prevent any appearance of a conflict of interest.[ii]
Opponents of Dr. Miller have alleged that he has exploited his position on the Enforcement Committee, which has the power to revoke and restrict a physician’s state medical license, in his role as an expert witness.[iii] They claim his involvement in disciplining doctor’s who have violated the Medical Practice Act, including standard of care allegations, at the same time that he has maintained close connections with the plaintiff’s bar and served as an expert, has placed a cloud of impropriety on the Board. In fact opponents could point to his resignation in response to a new Board Rule addressed to precisely this issue as vindication of this claim.
However, critics of Dr. Miller’s tenure have further accused him of improperly using his position on the TMB to transform the Enforcement Committee into a virtual arm of the insurance industry.[iv] Board Rules allow anonymous complaints to be made to the TMB which can then serve as the basis of a disciplinary action. Aggrieved physicians have alleged that insurance providers who are dissatisfied with the level of care provided to a covered patient have used such anonymous complaints as a way to punish doctors and maintain low cost levels. Such physicians point out that it is not actually the standard of care which motivates these anonymous complaints but rather a doctor’s decision to supply care whose cost exceeds insurance company guidelines and therefore hurt profits. These maligned anonymous complaints originate from the insurance providers and not the actual patients. In fact the patients whose care is supposedly at issue are frequently surprised when notified of the pending disciplinary action and often testify in favor of their doctor.
Many doctors consider the possibility of a disciplinary action based on inadequate or improperly kept medical records to be remote. Yet, the Texas Medical Board will oftentimes use a complaint based on other grounds, such as an alleged standard / quality of care violation, as an opportunity to thoroughly investigate a licensee’s compliance with Board Rules concerning the maintenance of medical records. Even if the original complaint is found baseless, the TMB has the right to pursue disciplinary sanctions for any other violations found during their investigation, and in a quality of care case this investigation will certainly include a thorough review of medical records.
Under the Texas Administrative Code, the Texas Medical Board has adopted official agency rules regarding the proper maintenance of medical records. For example, § 165.1 contains numerous mandatory guidelines concerning the maintenance of “adequate medical records.” Title 22 Texas Administrative Code § 165.1. Moreover, pursuant to the Medical Practice Act, the TMB has the same authority to pursue the full range of disciplinary sanctions for non-compliance with this provision as it does for any other Rule. Texas Occupations Code § 164.051(a)(3).Continue Reading...
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...
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.
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)
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...
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...
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.
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.