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.
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.
I often receive calls from nursing students, or even those only considering pursuing a nursing degree, with questions concerning whether or not they will be licensed by the Board of Nursing. Typically, these individuals have a criminal record, history of misuse of controlled substances, or a mental health diagnosis that they fear will present an obstacle to successful licensure.
These persons have already taken best course of action by being proactive and contacting an attorney with experience before the Board and who should therefore be able to estimate the difficulty they may or may not face in applying for their license. Generally speaking most nurses with marks on their record should be able to obtain licensure. A good portion of these may have to do so under the form of a probationary license with restrictions related to whatever it is that concerns the Board.
For example, an applicant with a history of abuse of controlled substances may only receive their license on the condition that submit to random drug screens, attend AA meetings, successfully complete a recovery program, and work in an environment where they can be supervised by a superior nurse. A nurse with a criminal record may have to enter into an Agreed Order that provides for supervised practice and grants them only a provisional license with full licensure dependent on achieving a number of years of violation-free practice. Finally, persons with a serious psychiatric diagnosis may need to agree to an Order mandating that they continue with a specified medical treatment program to keep their condition under control.
The very few nurses who will likely not be issued a license are those with serious criminal convictions or an ongoing and untreated chemical dependency problem. On the issue of serious criminal offenses I am referring to convictions such as rape, sexual assault, kidnapping, injuring a child, or murder. Section 301.4535 of the Nursing Practice Act provides a list of criminal offenses for which the Board may refuse to license an applicant. Other felony convictions fall under this list as well.
Future nurses should note, however, that the Board is typically reluctant to license a nurse even a minor black mark on their record if they are not represented by an attorney. They will usually refuse outright or press a nurse to enter into an order with terms that are more stringent than indicated by their history. As in any disciplinary matter, the Board of nursing generally pursues the severest sanction unless the nurse has a lawyer to fight for their interests.
One option for students unsure of their eligibility for licensure is found in § 301.257 of the Nursing Practice Act. This section provides that a nursing student or even a person only considering attending a nursing school can file a Petition for a Declaratory Order of Eligibility for Licensure. In response, the Board of Nursing will then review that person’s history and assess whether they meet the required good moral and professional character standards. If they do, the Board Staff will issue a Declaratory Order finding that individual conditionally eligible for licensure as long as they graduate and later pass the standard nursing exams.
If you have questions about your eligibility for a Texas nursing license or the declaratory order procedure, please call an experienced administrative law attorney. They should be able to intelligently discuss your case and lay out your options. Don’t wait until after graduating from nursing school to find out that you may not be eligible for a Texas license.
Recently, I have represented a pharmacist whose reapplication for his controlled substances registration was denied by the Texas Department of Public Safety when he voluntarily acknowledged that he had previously been convicted of a felony. He was one of several defendants on trial for the same set of criminal transactions and his own share of the guilt was slight. It was essentially a case of bad judgment and naivety on the part of my client. He had entered into a business relationship with the wrong people and was now paying for their misdeeds. The Federal Drug Enforcement Agency had essentially agreed and declined to take action against his controlled substances registration. In addition the Texas Pharmacy Board has so far chosen not to seek any disciplinary sanction.
In contrast, the Texas Department of Public Safety pursuant to the Texas Controlled Substances Act § 481.063(e)(2)(A) summarily denied his reapplication on the basis of his voluntary admission of his felony conviction. This section of the Health and Safety Code provides for such denial when an applicant has been convicted or placed on community supervision or probation for a felony. Fortunately, the Texas Legislature has also inserted into this chapter a provision allowing the Director of the DPS to probate a denial under § 481.063(e)(2)(A) upon a showing of good cause. The Act and the Department of Public Safety’s own administrative rules also generally allow an applicant to request a hearing wherein they may present evidence and argument in their favor.
As a hearing would almost certainly be necessary to present evidence establishing good cause for a probated order, I requested one as part of my client’s response to the DPS’s decision to deny his reapplication. In reply, the DPS sent a letter reiterating their denial and pointing to § 481.063(h). This Section holds that in the case of a denial based on a felony conviction, the provisions of the Texas Administrative Procedure Act do not apply. This is significant in that this bars access to the normal administrative process, most importantly, a licensee’s right to a full evidentiary hearing before an Administrative Law Judge.
As an attorney with extensive experience in this field, I must say that to my knowledge this is unique among Texas professional licensing law. A professional’s right to an administrative hearing following an initial decision by a licensing board is generally considered sacrosanct because of due process concerns. This is rightly so, as denial of a pharmacist’s controlled substances registration is a significant government taking, essentially the removal of a pharmacist’s ability to make a living. The Administrative Procedure Act’s hearing provisions are meant to safeguard the due process guarantees of the Texas and Federal Constitution.
The removal of APA protections in this case would be less troublesome if the DPS instead provided some adequate alternative. They could for instance, as is common among state and federal agencies, simply adopt rules providing for a hearing before a hearing examiner at the Board. They have not chosen to do so. When we sent in a remedial packet of documents outlining his limited culpability for the underlying offense, the DPS sent a terse response that they remained firm in their decision and were still not going to allow my client a hearing.
This is all the more strange given that one would think it impossible to make an informed decision as to whether good cause is applicable in a specific case unless the subject party and their attorney are given an opportunity to argue this point. As is, the current state of the Texas Controlled Substances Act and DPS practice places unlimited and unchallengeable discretion with the DPS Director as to whether or not grant a probated order. This is a clear denial of due process as a licensee is given no meaningful opportunity to contest the DPS’s findings.
What is more, given the current state of the law it is not clear whether a pharmacist denied under § 481.063(e)(2)(A) has any opportunity for judicial review either. It is basic Texas law that a party may not judicially appeal an adverse administration decision without first submitting the administrative record in evidence. As it stands there is no administrative record; no findings of fact or findings of law, nor any testimony or set of evidentiary documents. Even if the handful of short letters between the DPS and my client were found to be a sufficient administrative record, it is unclear as to what the reviewing court could use as a basis for its holding. There is simply no record that can serve as the basis for a meaningful review of the Department of Public Safety’s decision.
The DPS needs to either provide an adequate alternative hearing procedure or ask the state legislature to bring § 481.063(e)(2)(A) back within the purview of the APA. If they don’t, one can only hope that the legislature decides to fill this legal loophole on their own initiative.
The Board of Nurse Examiners for the State of Texas received authorization and funding from the legislature to undergo complete criminal history and background checks on every nurse in the State of Texas. Accordingly, every LVN and RN in Texas will be required to submit a fingerprint card to the BNE over the next ten years. The cards will be submitted to the FBI and the Texas Department of Public Saftey for verification and accuracy of the Nurse's identity and criminal history. Ten percent of nurses will be required to undergo this scrutiny per year until all licensees have been evaluated. This has created a marked rise in investigations and disciplinary orders. There are several inherent problems with this process however, and nurses should seek advice from an experienced lawyer before they accept a proposed disciplinary sanction that will mar their record indefinitely.
To begin, the BNE did not acquire jursidiction over deferred adjudications until September 1, 2005. Staff of the Board however, is investigating offenses that resulted in deferred adjudication probations and dismissals that are more than twenty years old. This week alone I received calls from two LVNs who had just such misdemeanor criminal records and were being investigated by the BNE. Board Staff, including the Attorneys, readily admit they did not and do not have substantive jurisdiction over the criminal history, but maintain they are concerned about the conduct or the psychiatric disorder that may be reflected by the offense and the behavior. The fact is both of these nurses have renewed their licenses for the last twenty (20) years and have never been required to reveal this history. Additionally, both have practiced nursing without incident during this period and each has had exceptional performance appraisals from all employers. Why then is the BNE delving into these issues when all of their investigators have such large case loads that they can not adequately work up a case? The answer is simple -Public Image.
A recent article published by the Fort Worth Star Telegraph entitled Nursing Board Sets High Standards describes Staff of the Board referring to public opinion concerning nurses. The Executive Director of the Board was quoted as saying: "Americans rate nurses at the top of the list of trusted professionals. And there's plenty of reason why". So is the BNE more concerned about the way they appear to the press and the public or ensuring there are enough quality nurses available to meet the demands of the workforce? Arguably, the stance and the approach suggest that public appearance and image is what is priority.
Recently I have had a flurry of client's who are being invesigated for alcohol related Class C offenses that are over a decade old. Staff of the Board maintains they are worried that the nurse may suffer from alcohol abuse or chemical dependency. What Board Staff fails to look at however, are the last ten years of a perfect working history, with no practice related errors. Board Staff would like to predicate a nurse's future on their remote past without due consideration given to recent history. This absurd infringement was taken to an extreme when a prospective Client was being investigated for an arrest for marijuana possesion that occurred overseas over thirty years ago. What is even more ludicrous is that no conviction ever was imposed and the country is now a war zone. I would like to see staff of the Board issue a subpoena to this war ridden country for a police report that is written in hyroglyphics. BNE lawyers and attorneys may be adequate trial lawyers, but any Administrative Law Judge would be hard pressed to admit such evidence given the numerous evidentiary and admissibility problems inherent with such a report.