Texas Dental Board Offers Proposed Order Without Giving Dentists a Full Opportunity to Respond

 

The processing of complaints filed with the State Board of Dental Examiners (“Board”) is governed by Chapter 255, Title 3, Occupations Code and Rules 107.00 through 107.103 of the Board’s Rules. After deciding that the complaint involves potential violations, Board Staff has the authority to schedule an informal settlement conference, draw up a proposed board order, or file a formal complaint with the State Office of Administrative Hearings. As the informal settlement conference track gives the licensees an opportunity to present their mitigating or exculpatory evidence to a Board member who has the authority to resolve an investigation, such a setting is many times favorable to flesh out the facts and give the licensees a venue to clarify the issues. 

Unfortunately, the more recent trend has pointed to Board Staff presenting proposed board orders to licensees in lieu of scheduling informal settlement conferences to resolve cases. These board orders are prepared and reviewed by Board Staff, including the dental director who is employed by the Board.  In the proposed order Board Staff will make findings of fact and conclusion of law, and list sanctions without any input from the licensee. The proposed orders are sent to the licensees accompanied by a form letter stating the failure to sign the order would result in a formal complaint and a contested case hearing at the State Office of Administrative Hearings. Many times, licensees, without an understanding of the disciplinary process will be coerced to sign the order as the prospects of a formal hearing are daunting. What the dentist often does not know is they still have the right to request an informal conference and obtain a copy of all non-confidential information in Staff’s investigative file. For these reasons, among others, licensees investigated by the Board should seriously consider hiring an attorney.

The attorneys at the Leichter Law Firm have extensive experience in professional licensing and administrative law and will generally help to secure better outcomes than a practitioner facing the Board alone. In the scenario explained above, we would request an informal settlement conference so that we would be better able to marshal evidence and present your case to Board Staff and a representative Board member.  If you have received a proposed board order without having been afforded the opportunity for a face-to-face informal meeting, please call the attorneys at the Leichter Law Firm for a free consultation at 512-495-9995.

 

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

 

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

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

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

 

 

To be clear, there are instances where a Remedial Plan should be seriously considered. The most obvious case is when the physician clearly did wrong, and some sort of action by the Board is assured. However, if there is a chance of the case being dismissal, the choice is not as clear. If you find yourself in such a situation, a lawyer experienced in administrative law should be able to help you determine which category you fall in.   

But why should you give it a second thought if it is a “non-disciplinary” order? First, it is still a public order, and as the Board rules exist now, it will stay on your online public profile forever. Anyone who looks up your profile will be able to find it. Additionally, your name will still appear in the Board’s newsletter, albeit in a list, set apart from the disciplinary actions. Second, we do not know how insurance companies, employers, and credentialing boards will treat the Board’s “non-disciplinary” order. There is a chance that they will not view it as non-disciplinary, and may use it as a basis to impose their own discipline, or deny employment or certification. Frankly, it is too early to tell how the Remedial Plan will be treated by these entities. 

Ultimately, you should put some serious thought into the ramifications of signing any public order with the Medical Board. If you are a physician and faced with the reality of going before the Texas Medical Board, or responding to a Remedial Plan offer, representation from an experienced Texas administrative law attorney may help.  Please feel free to call the Leichter Law Firm for a free consultation regarding your case with the Texas Medical Board -512 495-9995.

 

Texas Board of Nursing's Deferred Disciplinary Order

 

The Texas Board of Nursing has recently started offering a new type of agreed order which allows, with some significant reservations, nurses to avoid a permanent disciplinary mark on their record. Pursuant to the Legislature's mandate that the Board administer a pilot program to study the feasibility of deferred disciplinary actions, the BON has enacted rules governing this program and outlining what type of cases are eligible for the new deferred disciplinary order. For those interested, the enacting statute is located at Section 301.1607 of the Nursing Practice Act and the governing rule is found at Title 22, Section 213.34 of the Texas Administrative Code.

A nurse who receives a deferred disciplinary order can have the order and original complaint dismissed and removed from their licensure record with the Board of Nursing if they successfully complete the terms of the order and receive no further disciplinary actions within the next five years. At the end of the five year period the deferred order is effectively sealed and any record of its existence is removed from the Board's website. Additionally, this disciplinary action is then deemed confidential and is not subject to disclosure to either the public or a nurse's employer.

There are significant limitations to these confidentiality protections. First, prior to the five year mark, the deferred disciplinary order is completely public and will appear in both the Board's Newsletter and on the nurse's online licensure page. Second, as with any Board order, the BON is required to file a report with the Healthcare Integrity Protections Data Bank (HIPDB). As this is a creation of Congress, it is subject to federal law and does not recognize confidentiality protections created at the state level. This means that a record of the disciplinary action taken against the nurse will stay in HIPDB indefinitely and remain accessible to employers regardless of its erasure in Texas.

Eligibility for a deferred disciplinary order is restricted to those cases which can be resolved through either a Warning with Stipulations or less severe order. Matters normally disposed of through a Reprimand, Probated Suspension, Enforced Suspension, or Revocation are not eligible for a deferred disciplinary action. Furthermore cases involving criminal or sexual misconduct, chemical dependency or substance abuse, intentional acts, falsification, or deception are likewise not eligible for the pilot program. The program is designed to apply to nurses whose cases show a lack of situational awareness or a knowledge or practice deficit. Finally, nurses with a prior disciplinary history with the Board cannot receive a deferred disciplinary order.

Its limitations aside, the deferred discipline pilot program is a welcome development and should prove beneficial in resolving marginal cases involving minor violations of the Nursing Practice Act. A nurse with an active case before the Board of Nursing curious about whether they may be eligible for a deferred disciplinary order should contact an attorney experienced in administrative law and in representing clients before the BON.

The Texas Medical Board's New Fast-Track Process for Resolving Minor Cases

 

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:

  1. 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.
  2. 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.
  3. 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.     

The Texas Medical Board's Corrective Order Explained

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

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

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

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

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

  • First, you do not have to sign it. Rejection of the Corrective Order just means that your case will progress to the ISC stage, just as it would have if one was never offered. Do not feel pressured into signing a Corrective Order. 
  • Second, the Board may not have the whole story. The decision to offer you a Corrective Order is based only on the Board’s preliminary investigation with little or no input from the physician. There is a reasonably good chance that the Corrective Order does not have the facts entirely straight, and that your participation in an ISC would be valuable in clarifying or mitigating the situation. 
  • Third, are you happy with the Corrective Order as written? The Board’s policy so far has been that the content of these Corrective Orders is non-negotiable. If there is an objectionable Ordering Paragraph or objectionable Finding, you have to be prepared to live with it. 
  • Fourth, are you ready to have your name attached to this Corrective Order for the rest of your life? The Corrective Order, once approved by the full Board, becomes a part of your online physician profile. At that point, anyone who searches on your name or license number will be able to pull up and read your Corrective Order.

Ultimately, do not let the offer of a Corrective Order, and its quick turnaround time, lull you into signing something you do not understand or agree with. If you are a physician and faced with the reality of going before the Texas Medical Board, or responding to a Corrective Order, representation from an experienced Texas administrative attorney may help.  Please feel free to call the Leichter Law Firm for a free consultation regarding your case with the Texas Medical Board -512 495-9995.

Texas Medical Board Cancels Meeting Rescheduling All Applicants & Appearances

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

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

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

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

Texas State Board of Pharmacy's Ability to Impose Discipline for Violations of Other States' Law

 

Like most health licensing boards, the Texas State Board of Pharmacy possesses extensive authority to discipline pharmacists and pharmacies for violations of their enabling statute, the Texas Pharmacy Act. This includes criminal matters, negligent practice, fraud and deceit, suspected substance abuse/dependency, and anything the Board determines falls within the broad and ill-defined ambit of unprofessional conduct. Unlike most Texas medical licensing boards, however, the Pharmacy Board is also authorized to discipline pharmacists for violating another state's law pertaining to drugs or the practice of pharmacy. This grant of jurisdiction is expansive and raises unique regulatory pitfalls for Texas pharmacists whose practice reaches into other states or who hold licenses in multiple jurisdictions.

Normally, before a Texas licensing board can impose discipline on a licensee for violations of another state's law, the licensing board in the subject jurisdiction must have already entered a disciplinary order in their state. In this event, the Texas board, including the Pharmacy Board, can then discipline the licensed professional in Texas through their reciprocal discipline statute. Through reciprocal discipline the Pharmacy Board need only present the foreign order and is not required to separately prove up the underlying allegations. The same almost always holds true in any other states where the pharmacist or medical professional is licensed. This is one of the primary problems facing a Texas medical professional holding licensure in multiple states: an order in one state can cause a cascade effect of similar disciplinary actions in the other jurisdictions were they are licensed. 

The Pharmacy Board's disciplinary statutes go even further, however, and authorize discipline for a violation of another state's laws even in the absence of any action by the other state. As an example, my firm recently represented a compounding pharmacy located in Texas which sold medications to practitioners located throughout the country. This pharmacy, which initially was not licensed in any other jurisdiction, was investigated and subsequently disciplined by the Texas Pharmacy Board due to their lack of the proper non-resident pharmacy permits required in many of these other states. This was despite the fact none of these other states had taken any action against the pharmacy nor were there any indications they planned to do so even after my client had made them aware they had ostensibly been in violation of their regulations. The pharmacy has now been subjected to a disciplinary order in Texas which it will need to report to all the other states in which it has or will soon be licensed. The end result could easily be a series of orders and fines in other jurisdictions pursuant to each state's reciprocal discipline statute. This is all because Texas elected to punish this pharmacy due to its failure to adhere to the law in other states even when such states had declined to impose discipline.

As can be seen above, this far-reaching grant of authority permits the Texas Pharmacy Board to essentially be the enforcer of other state's law and can have serious consequences to Texas pharmacists and pharmacies. Every licensee actively or merely planning to conduct business in another state would be well advised to ensure adherence to the other jurisdiction's laws pertaining to drugs and pharmacy. At a minimum this should involve consulting with an attorney to investigate whether licensing or out-of-state permitting is required by the other state. Failure to do so can lead to an otherwise avoidable disciplinary order in Texas, likely a significant impediment to the continued expansion of your business.

Texas Board of Nursing Implements New Corrective Action Procedure

 

The Texas Board of Nursing has recently created and implemented a new, confidential procedure in which to resolve disciplinary investigations. Typically, the Nursing Practice Act limits the Board’s discretion to resolve a case through anything other than a public Order. In a welcome innovation, the Board now has the authority to settle a restricted set of cases involving minor violations of the Nursing Practice Act through a confidential, non-disciplinary corrective action procedure.

Eligibility for a corrective action plan is limited and at the sole discretion of the Nursing Board’s Executive Director. A nurse may be eligible to have their case resolved through a  corrective action proceeding if this is the first time they are being charged with one of the following violations:

  • Practice on a delinquent (expired) license for more than six months but less than one year;
  • Failure to comply with continuing competency requirements;
  • Failure to verify licensure/credentials of person for whom nurse is administratively  responsible;
  • Failure to provide complete and accurate answers to the Board, your employers, or potential employers about matters like your employment history, licensure history, or criminal history;
  • Failure to comply with Board requirements for change of name/address;
  • Failure to develop, maintain, and implement a peer review plan according to peer review requirements; and
  • Failure of an advanced practice registered nurse to register for prescriptive authority in an additional role and population focus area.

See 22 Tex. Admin. Code § 213.32(2)

There are several benefits to receiving a corrective action plan as opposed to a normal disciplinary order. These include:

A nurse is typically ineligible for a corrective action plan if they have committed more than one of the violations listed above. Id. at § 213.32(3). Moreover, if a case has already progressed to a contested case hearing at the State Office of Administrative Hearings, the Executive Director no longer possess the discretion to resolve a matter through corrective action.

  1. Not Disciplinary Action: Corrective Action is not considered disciplinary action. 22 Tex. Admin. Code § 213.32(1);
  2. Limited Penalty: The penalty may only be a fine, remedial education, or any combination thereof. See Tex. Occ. § 301.652(a)(1). Should a fine be imposed the amount for first time offenders is $500. 22 Tex. Admin. Code § 213.32(3). Hence a nurse doesn’t have to worry about having their license revoked or suspended or being subjected to a period of monitoring by the Board;
  3.  Finality: Once the nurse accepts the corrective action the case is closed. Tex. Occ. Code § 301.655(a);
  4. Greater Confidentiality: The corrective action is not public information unlike an agreed order or a formal hearing. Tex. Occ. Code § 301.652. As a result it is not subject to public disclosure, does not appear in the Board’s Newsletter, nor is it reported to the Healthcare Integrity and Protection Databank;
  5. Non-Admission of Guilt: A person’s acceptance of corrective action does not constitute an admission of a violation but only constitutes a plea of nolo contendere. Tex. Occ. Code § 301.657. However, if the board imposes a sanction on the person for a subsequent violation then it may treat a person’s acceptance of corrective action as an admission of a violation. Id.

It is important to note that the Legislature has included a provision within the authorizing statute requiring that the nurse accept an offer of corrective action within twenty days of receiving the proposed resolution from the Board, otherwise the Executive Director will have to pursue the complaint via the normal investigation process which could end with a public disciplinary action. Tex. Occ. Code §§ 301.654, 301.655.

As an attorney who represents numerous nurses before the Texas Board of Nursing each year, I view this as a positive initiative which should prevent relatively minor disciplinary issues from resulting in a potentially embarrassing public order. In fact, if anything, I feel the Board of Nursing could benefit from even greater authority to resolve cases through the kind of confidential order/process that is available to other state licensing entities such as the Texas State Board of Pharmacy and the Texas Medical Board through the new Physician Health Program.

The corrective action procedure has been especially helpful in my own practice for cases involving a nurse’s isolated failure to disclose minor criminal history on a licensure or renewal application. In the past, this could only be resolved through a public remedial education order which would remain on a nurse’s record indefinitely and be published in the Board’s Newsletter.

Any nurse with an active investigation with the Texas Board of Nursing would be well advised to consult with an attorney as to whether or not their case may be eligible for resolution through a corrective action plan. As stated above, this is an opportunity which can disappear once a case has proceeded to an advanced stage leaving a nurse with a limited choice between either litigating their case to its conclusion or accepting a public disciplinary order even if the Board’s allegations are of a de minis character.

What is an Agreed Order? - Texas Board of Nursing

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

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

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

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

Temporary Suspensions Rise Sharply at the Texas Board of Nursing

 

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

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

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

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

Texas State Board of Pharmacy's Agressive Use of Investigators

 

Within the last two weeks my firm has signed on as clients two pharmacists who have encountered first-hand the aggressive tactics used by investigators at the Texas State Board of Pharmacy. This is something I feel all pharmacists and pharmacy technicians need to be aware of so they do not inadvertently damage themselves or accidently forfeit their right to contest the Board’s charges.

 

The day after I had sent in my letter of representation to the Pharmacy Board regarding the first client, the pharmacist contacted me by phone to tell me that a Board investigator was at her pharmacy asking her to sign a sworn statement admitting to the Board’s allegations. I asked her to transfer the phone to the investigator who stated that he was not aware that my client was represented by an attorney. He apologized and it was clear that he was genuinely unaware that the pharmacist was represented. Nonetheless had my client been unable to get in contact with me at that moment she may have made potentially harmful admissions.

 

The second client informed me that the evening before he retained me an investigator showed up at his home to essentially interrogate him and, again, have him sign a sworn statement admitting to the Board’s allegations. The investigator represented himself as both an employee of the Board and a licensed peace officer. He asked numerous loaded questions in his quest for additional allegations and also told the pharmacist how lucky he was that the Board did not turn his matter over to the local prosecutor. Thankfully, my client had the good sense not to tell the investigator anything or sign any statements.

 

These two experiences are unfortunately typical. Oftentimes the first time a pharmacist even learns that they are being scrutinized by the Board is when an investigator suddenly shows up at their home or place of employment demanding records and signed confessions. Duly intimidated by the Pharmacy Board’s strong-arm police tactics the licensee frequently signs a premade confession or discloses potentially damaging information without first consulting an attorney.

 

Make no mistake, despite any entreaties to the contrary the Board and its investigators are not your friends and they are not there to objectively assess the allegations to determine their merit; they are there to build the Board’s case against you and parse out info that can lead to additional allegations. I emphatically recommend that as soon as an investigator is at your door to politely decline talking with them or giving any statements and immediately contact an attorney with experience before the Texas State Board of Pharmacy. At that point your livelihood and reputation are plainly at stake. Do not try and go it alone and do not think you can “work things out” with the investigator.

Executive Director of Texas Medical Board Agrees to Overturn Revocations/Cancellations

 

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.     

The Texas Medical Board, Agreed Orders, and Insurance Provider Networks

 

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.

  

Texas Board of Nursing Abuse of Chemical Dependency Guidelines

 

According to the Texas Board of Nursing’s Administrative Rules any nurse who has a diagnosis of chemical dependency or who otherwise has a history of abuse of controlled substances must demonstrate through “objective, verifiable evidence” that they have been sober for the past twelve months before they can be allowed to continue practicing licensed nursing. Title 22 Texas Administrative Code § 213.29 and the Board’s “Eligibility and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse, Substance Dependency, or other Substance Use Disorder.” Normally, a nurse will establish that they have been sober throughout the past year by offering up AA logs, negative drug screens, an expert evaluation by an addiction specialist, and testimony from support group members, coworkers, and other intimate acquaintances. The idea is that with the evidence in hand, the Nursing Board will be able to verify the nurse’s sobriety date and see if this meets the twelve-month threshold.

 

Regrettably, it has been my recent experience serving as an attorney for such nurses that the Texas Board of Nursing is all too eager to brush aside such offers of proof and race to a full administrative hearing where they seek, contrary to their own rules and policy guidelines, a one-year suspension of the nurse’s license. In the cases I have been involved with, Texas Nursing Board Staff have repeatedly argued that a one year “timeout” is the appropriate sanction. Their idea is that during this year long timeout period, the licensee can work on their recovery and accumulate verifiable evidence of their sobriety. The problem is that the Board maintains that this timeout applies whether or not the nurse all ready has twelve months of verifiable sobriety. This is an incorrect statement of the law and is grossly unfair and unnecessary for nurses who have already been sober for a year or longer.

 

Another problem with the Board trial strategy in this area is that in the lead up time to a full SOAH hearing, they typically refuse to accept a chemically dependent nurse’s evidence of their sobriety date. In line with this any Agreed Order offered by the Board to settle the case fails to include a finding of fact setting forth the licensee’s date of sobriety. Inclusion of the sobriety date is absolutely crucial. This is the finding the nurse needs so that they can trace back twelve months of continuous sobriety. Otherwise when they later seek to lift any bar to their ability to actively practice nursing, the whole issue of when is their initial date of sobriety will have to be litigated all over again. The Board of Nursing will once again reject the nurse’s evidence of sobriety as insufficient and force the licensee to once again hire an attorney and take the matter all the way through to the State Office of Administrative Hearings.

 

Given the Texas Board of Nursing’s intransigence on this point, a nurse’s only real option is to pursue their case all the way to SOAH the first time around. This is the only way to have a finding of fact issued, in this case by an Administrative Law Judge, establishing their date of sobriety so that they will have a concrete point from which to trace their one-year of sobriety. This is a waste of taxpayer money and needlessly creates stress and drains the finances of the nurse. Simply put, the Board needs to follow their own administrative rules and policies.

 

As an attorney I usually advise my clients in this situation not to accept an Agreed Order that does not contain a sobriety date. Fighting the Board all the way through SOAH may be more expensive in the short run than simply signing the agreement, however, in the long run they will probably need to hire an attorney when they later attempt to reactive their license or lift any bar preventing them from practicing as a nurse. This is because they still need to establish their sobriety date so that they can demonstrate twelve months free from any chemical substances. Furthermore, if they decide to challenge the Board now, their current license will remain active and they will be able to continue working as a nurse while the disciplinary process runs its course. Because of the Board’s refusal to accept a sobriety date, by the time this process has run its course, the nurse may have already accumulated a full year of sobriety and therefore not suffer any down time.

 

I strongly recommend that any nurse’s facing this scenario contact an attorney with experience in administrative law and representing clients before the Texas Board of Nursing. They will be able to help you accumulate the evidence needed to demonstrate twelve months of continuous sobriety and be able to discuss with you the best options for protecting your license.

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

 

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

 

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

 

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

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

 

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

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

 

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

 

If the agent refuses to sign the order, their only option at this point is to request a full hearing before the State Office of Administrative Hearings. This is a trial-like proceeding that is complex and governed by the Administrative Procedures Act. During this process both the TDI and agent will conduct full discovery, file motions, and ultimately conduct a full evidentiary hearing before an Administrative Law Judge. Following this, the Judge will enter his findings of fact and recommended sanctions with the Department of Insurance who is then free, within certain legal bounds, to accept or reject it. Finally, TDI will enter an order that either agrees or disagrees with the ALJ and sets forth sanctions. Any further contest will require that the agent file a suit in Austin District Court, an even more complex and costly proposition.

 

Any insurance agent who has received a letter of investigation would be wise to contact an attorney. An attorney experienced in administrative law, professional licensing law, and representation before the Texas Department of Insurance should be able to give good advice on how to proceed. Typically, the later in the process a licensee waits to obtain professional legal advice the more costly and limited their options become. Also, it has been my observation that agents represented by an attorney with background in professional licensing matters tend to achieve better outcomes than those represented by a lawyer without this experience or, even worse, who are not represented by an attorney at all.

TMB Adopts Fast-Track Procedure For Certain Minor Violations

 

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.

AAPS Files Federal Lawsuit Against the Texas Medical Board

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.

In response, the TMB has stated that all of the AAPS claims are baseless. Specifically in regards to anonymous complaints, the TMB’s general counsel, Robert Simpson has noted that of the over 10,000 complaints received by the Board in the past two years, only 10 anonymous complaints have resulted in a “disciplinary measure” against a physician’s license / registration. Furthermore, only four percent of the complaint total is made anonymously. TMB officials also point out that the statute authorizing the use of anonymous complaints is designed to protect whistleblowers and thus better protect Texans from bad doctors. Any recent increase in disciplinary actions based on anonymous complaints is also probably at least partially explainable as part and parcel of the 39 percent overall increase in complaints received since the law was amended in 2003 to better catch bad doctors.  

The AAPS’s suit raises serious allegations regarding contemporary disciplinary practices at the Texas Medical Board and it will be interesting to see how this will play out in federal court. If nothing else, this heated dispute between a national physician’s organization and the TMB indicates the importance of retaining an experienced professional licensing attorney whenever a doctor is entangled in the Board's  disciplinary process.

Deferred Adjudication Probation & Discipline by State Licensing Boards

Last week I resolved three cases involving pleas of guilty or no contest to drug / alcohol related offenses and the subsequent investigations and prosecutions by the individual Client’s respective State licensing Board(s):

  • The Texas Optometry Board
  • The Texas State Board of Pharmacy
  • The Texas Medical Board

In each case, although the Board did not have jurisdiction to discipline for the criminal status in-and-of-itself, each agency found a way to link the conduct (the actions behind the commission of the criminal offense) to the Client’s occupational practice and attempt to resolve the matter through a reasonable agreed order. 

Neither the Texas Pharmacy Act nor the Texas Optometry Act afforded jurisdiction to the agency to discipline the license holder for the court ordered felony deferred adjudication probation(s). However, public scrutiny being what it is, each Board simply stated that the conduct was egregious and unbecoming of a licensee. Moreover, the Board’s mission was to protect the public and each agency felt this was something the public should know about. 

In each case the Respondent was able to put forth an excellent showing of compliance since the offense date as well as evidence demonstrating their good professional character including efforts made to remediate the circumstances. Each Agreed Order allowed the individuals to remain in active practice in an unsupervised manner. No active suspension was imposed in either case. A fine was assessed in one case. The reality –a pound of flesh for punishment and appearance! Unfortunately, each Client had technically violated another Rule or Statute of their respective licensing Board’s Act so if prosecuted they would be subject to discipline under an alternative theory. The good news is each agency was receptive to the individual’s situation(s) and took into account the mitigating and remedial circumstances. The bottom line is sometimes deferred probations do not afford the protection from State licensing board & agencies that they used to. The Texas Pharmacy Act has also been amended to include jurisdiction over deferred adjudication(s). The act discussed above occurred prior to the amendment going into effect. 

What is a Confidential Rehabilitation Order?

In lieu of public discipline, the Texas Medical Board has the option of offering a Confidential Rehabilitation Order (Private Order) to a physician who suffers from certain drug or alcohol related problems and/or mental health problems or disorders. Outlined under Title 22, Section 180.1 of the Texas Administrative Code, the purpose of an order is to create an incentive for a licensee or applicant to self-report and seek early assistance / treatment, thereby avoiding any harm to the public due to the deterioration of the physician’s ability to practice medicine. Successful completion of a Confidential Rehabilitation Order serves as an alternative to a public disciplinary order which must be reported to the National Practitioner Databank and can have adverse effects on a medical doctor’s ability to practice. A Private Order is Non-Public so there is no way the public, prospective employer’s or other health care entities should know that the physician’s medical license is subject to a Board Order.

The regulatory guidelines regarding who is eligible and under what circumstances a Confidential Rehabilitation Order can be issued are complex. An experienced attorney can help guide a physician through this process, accumulate supporting documentation, and ensure the licensee does not make a decision that will make them ineligible for a private order.

The issuance of a Confidential Rehabilitation Order is at the sole discretion of the Board. Under the Board’s rules, Staff and the Board may consider issuing a private order when:

  1. the licensee or applicant suffers from an addiction caused by medical treatment;
  2. the licensee or applicant self-reports intemperate use of drugs or alcohol and has not been the subject of a previous Board order related to substance abuse;
  3. a court has determined that the licensee or applicant is of an unsound mind;
  4. the licensee has a physical or mental impairment as determined by an examination; or
  5. a licensee or applicant admits to suffering from an illness or a physical or mental condition that limits or prevents the person’s practice of medicine with reasonable skill and safety.  
Title 22 Texas Administrative Code § 180.1(c).

In deciding whether to offer a confidential order, the Staff & the Board will weigh several factors. The Board will not grant an order absent a showing of good cause if either the physician has been found guilty, pled guilty, or received deferred adjudication of any felony or misdemeanor related to the intemperate use of drugs or alcohol. The same applies if the licensee or applicants’ intemperate use led to a violation of Sections 481 or 483 of the Texas Health and Safety Code or of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Whether the physician’s intemperate use led to patient harm, any prior disciplinary or criminal history, and any improper self-prescription or treatment, will also be considered and may pose an absolute bar from an offer of a Non-Public Confidential Rehabilitation Order. These matters are often won or lost based on the proper showing of physical documentary evidence, legal reasoning and most importantly the physician’s well thought out and planned presentation to the Board.

Physicians are encouraged to provide evidence and documentation supportive of a Private Order such as proof of rehabilitative potential, a clinical diagnosis of a physical or DSM IV Psychiatric Disorder along with supportive medical records, steps taken by the licensee to prevent future harm to the public, and a proposed treatment and monitoring program. Doctors who self-report intemperate use must provide thorough information on what, when, where, and to what extent the substances were used along with any prior history of substance abuse treatment. To be effective, a self-report must be given within five years from the last commission of intemperate use and be submitted prior to the Board receiving a complaint regarding the physician’s intemperate use. A lawyer can greatly assist a physician in assembling and effectively presenting these documents.

Finally, in considering whether to offer a Confidential Rehabilitation Order, the Board Staff will invite the physician to an Informal Show Compliance and Settlement Conference. (ISC) There the Board’s attorney will present the allegations to the Staff who will then ask the licensee questions. If the licensee has retained counsel, their attorney will also have an opportunity to speak to the Staff. Then, the Board’s panel members will decide whether to offer the physician a Confidential Rehabilitative Order which they may then accept or reject. If the licensee accepts the order and later the Board determines that they have violated its terms, the rehabilitation order may become public and the Board may take additional disciplinary action. Successful completion can prevent further disciplinary action and ensure that the order remains confidential.

DWI: Medical Licenses & Physician Discipline

The Texas Medical Board does not have the power to discipline a physician’s medical license / registration for an isolated arrest and subsequent conviction for driving while intoxicated. However, Board Staff will open an investigation into all physicians who have been arrested for DWI to determine if the physician suffers from a medical or physical condition which may impair their ability to practice or during the commission of the DWI they committed unprofessional conduct.

The Texas Medical Practice Act (Texas Occupations Code § 164.051) and the Medical Board’s Rules found in the Texas Administrative Code (Title 22, Part 9, Rule 190.8) are the guiding statutory for the Board’s ability to investigate and discipline a physician’s license for the offense of DWI. Per the Medical Practice Act the Board lacks the jurisdiction to impose discipline for a DWI offense that “stands alone” as it is neither a felony nor a crime of moral turpitude (Tex. Occ. Code § 164.051(a)(2). However, if an investigation yields that a physician was on call, subject to duty or scheduled to work soon after the time of arrest the following potential violations will be explored:

  • implications of unprofessional conduct (Prohibited Practices § 164.052(5)
  • the possibility of the physician’s use of alcohol or drugs in an intemperate manner that in the Board’s opinion could endanger a patient’s life ( Prohibited Practice § 164.052(4)

Practically speaking, Board Staff will investigate and schedule an informal settlement conference (ISC) after the arrest has been finally adjudicated. Generally, arrests that result in dismissals in the criminal court may be dismissed before making their way to the Board's legal department; however, convictions will almost always lead to an ISC. If, during the ISC, the physician is able to demonstrate that the DWI was an honest mistake and/or isolated incident the case will usually result in the recommendation of a dismissal -no disciplinary action. However, if the Board’s panel suspects the habitual and intemperate use of alcohol or drugs a disciplinary order (Agreed Order) involving drug testing, treatment and psychological / psychiatric evaluations may be presented to the physician. Anytime a physician has two DWI’s the physician will be placed into a position where they are forced to prove an absence of a DSM IV diagnosis relating to alcohol / substance abuse. For a more detailed explanation of the Texas Medical Board’s investigatory / disciplinary process please see our firm’s website pamphlet concerning medical licenses & discipline.