Texas Physician Health Program - When It Is Not Appropriate

In 2010, the Texas Legislature created the Texas Physician Health Program (PHP), effectively shifting the oversight of licensed Texas physicians with substance abuse disorders and mental illness from the Texas Medical Board to a program uniquely tailored to monitor those issues. Responsible in part for the success of this idea is the sentiment that physicians generally do not like dealing with the Medical Board, and are not keen on self-reporting substance abuse issues to the Medical Board or being candid about mental health problems. The PHP, while not entirely independent from the Medical Board (PHP is administratively linked to the TMB), was intended to provide a more attractive option for those physicians who needed the oversight and the help that PHP would provide. In the 2+ years since its creation, the PHP has largely been successful, and certainly is still preferable to the Medical Board’s investigative and disciplinary process in many instances. However, there are certain types of “substance-related” cases in which a referral to the PHP is not appropriate, and a physician would be better served to hire an experienced professional license defense attorney and take the case to the Medical Board, seeking dismissal. Simply put, a one-time arrest and conviction for DWI or Public Intoxication does not justify a long-term PHP contract aimed at facilitating recovery. 

The PHP is not typically appropriate in instances where the physician has had a one-time substance-related arrest, but no substance abuse diagnosis. However, we frequently encounter physicians who have been arrested for one-time instances of DWI or public intoxication and are subsequently offered participation in the PHP in lieu of Medical Board action. Oftentimes, the offer of PHP contract will have been given before the DWI case is even criminally adjudicated. For a physician that does not seek the proper legal guidance, that one-time DWI arrest will result in a 5-year PHP contract, where the physician is subjected to terms that likely include substance abuse treatment, Alcoholics Anonymous attendance, drug screening, and possibly practice restrictions. While a confidential PHP contract that offers that level of structure is probably appropriate for a physician with a diagnosed substance use disorder, it is not appropriate for the physician who made a highly regrettable, one-time decision to drink and drive. Additionally, it is very difficult for anyone to stay compliant with a 5-year PHP contract when there is no actual substance abuse disorder- the terms of the order start to look very arbitrary. Moreover, there will be lifelong consequences with credentialing and applications for privileges. 

The alternative to a PHP contract is the perceived threat that the physician’s case will be forwarded to the Medical Board for investigation and possible disciplinary action. Contrary to common misperceptions, that is often the preferable scenario in this instance. The Medical Board does not have the power to discipline a physician for a one-time arrest and conviction of DWI, and as long as that DWI does not lead to evidence that the physician may have a substance abuse problem, the Medical Board must dismiss the case (Tex. Occ. Code § 164.051(a)(2)). The physician will probably be investigated and invited to participate in an Informal Settlement Conference with the TMB, but an experienced administrative law attorney should be able to guide them through the process without receipt of any discipline. The professional license defense attorneys of the Leichter Law Firm have been very successful in getting these cases dismissed.

If you are a physician, physician assistant, or other licensee of the Texas Medical Board, and you have been offered a PHP participation contract in response to a one-time substance-related arrest, do not hesitate to contact the experienced administrative law attorneys of the Leichter Law Firm. Even if you have not yet been contacted by the TMB or the PHP regarding your substance-related arrest, it is advisable to contact us at 512-495-9995 for a free consultation.       

Board of Nursing Overreaches Mandate in Pursuit of Ancient Criminal History

 

As most Texas nurses are now aware, the Texas Board of Nursing has for several years been performing criminal background checks as part of the renewal process. Each year a certain number of nurses who are up for renewal are required to submit fingerprints for an FBI background check. Those persons who lack any criminal history or who have previously disclosed that history to the Board need not worry. However, any licensees who do have an undisclosed criminal matter, even a minor one, should be concerned as the Board will likely use that record as an excuse to open an investigation and vigorously probe for any history or other indications that they feel indicates the person may lack fitness to practice nursing. Perhaps the most frustrating part of the Board’s policy is that they will apply the same searching examination no matter how old or miniscule the criminal record.

 

As an example, I recently served as the attorney for the spouse of a former client, who is also a nurse. His issue was that he recently received a letter from a Board investigator stating that a twenty year old arrest for misdemeanor possession of marijuana had popped up during his renewal background check and that they were opening an investigation based on it. The charge was so old that my client didn’t even remember it which is also the reason he had not disclosed it the Board. The arrest in fact is so old that it predates his entrance into nursing school. Furthermore, the fact that only an arrest showed up indicates that the local prosecutor likely decided that the matter was so minor that it did not warrant prosecution. Yet, the Board’s desire to pursue this old charge meant that he had to contact me and I dutifully sent a not so nice letter to the Board telling them to back off.

 

Essentially the Board is wasting state tax dollars and subjecting veteran nurses to searching and oftentimes humiliating investigations on the basis of decades-old minor criminal offenses which likely committed before the person was even licensed. This goes well beyond any investigatory/disciplinary mandate extended by the state legislature when they granted the Board the authority to perform extensive background checks as part of the renewal process.

The Texas Board of Nursing’s functions do include the screening of new and current licensees for the kind of criminal record which could indicate that they lack fitness to practice nursing. However, this authority does not extend to investigations and possible disciplinary action based on minor offenses committed one or two decades ago with years of uninterrupted, problem-free practice in the interim. All this does is waste Board funding and misdirect their limited resources away from pursuing licensees with genuine and ongoing issues that raise real questions about their safe practice.

 

It is unfortunate that it often takes the hiring of an attorney to convince the Board to retreat from this type of baseless investigation since they should never occur in the first place. It has been my experience as an attorney in many of these cases that the Board is essentially using the old offense as an excuse to sift into the nurse’s record and try and find anything which can then be added on as firmer grounds for disciplinary action. For example, the nurse will frequently be asked to submit to a polygraph examination and post-test forensic evaluation. As I have discussed elsewhere in my blog the Board has no authority to request this and the nurse is full within their rights to simply refuse. The problem is the nurse is never informed of this right of refusal as submission to test is presented as a mandatory matter-of-course. Following this the Board will habitually make an inappropriate referral to TPAPN based on the original criminal matter and whatever admissions or suspicious responses result from the polygraph and interview. Again the foundation for all of this can be nothing more than a decades old DWI or possession charge. 

 

Any nurse facing such a situation should consider hiring an attorney with experience representing clients before the Texas Board of Nursing. Unless they face a lawyer who knows what is and is not within their authority, the Board will likely try to initiate their own minor inquisition into your work and life history.

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.

DWI & Nursing License Discipline by the Texas Board of Nurse Examiners

Although initial arrests and convictions for Driving While Intoxictated (DWI) will not ordinarily result in the imposition of a disciplinary sanction against a Texas Nurse, they often do give rise to a stressful and searching investigation by Staff of the Board of Nurse Examiners. This result is due to, on the one hand, the legal fact that under the Nursing Practice Act, many DWI’s do not relate to the practice of nursing, and on the other, the practical reality of the Nursing Board’s zealous policing of what it deems unprofessional conduct (Texas Occupation Code § 301.452(b)(10).  A knowledgeable attorney can best secure a positive outcome by ensuring that the correct standard is applied and not substituted by the Board’s personal opinion(s) on what constitutes unprofessional or dishonorable conduct.  

Under the Nursing Practice Act the Board can take disciplinary action against a licensee if a nurse has been convicted or placed on deferred adjudication for either a felony or a misdemeanor involving moral turpitude. (Texas Occupation Code § 301.452(b)(3)). An individual’s first two DWI’s are misdemeanors under the Texas Penal Code with the third and all those thereafter rising to felonies. From a legal standpoint, however, the Nursing Board’s broad discretion to take disciplinary action under the Nursing Practice Act is limited by the Texas Occupation Code’s prescription that discipline can only be imposed if the felony or misdemeanor “directly relates to the duties and responsibilities of the license holder.” (Texas Occupation Code § 53.021). In deciding this issue, the Board must weigh certain factors such as “the relationship of the crime to the purposes for requiring a license to engage in the occupation” and “the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation.” (§ 53.022)

Board Staff’s policy, however, is to initiate an investigation into a nurse’s fitness and character if they have two or more criminal arrests for alcohol or drug related offenses in a lifetime. Board Staff does not seem to differentiate between arrests, deferred probations, regular probations, dismissals and final convictions with respect to opening an investigation. Once the investigation is initiated, Board Staff tries to force the nurse into a forensic psychological evaluation and polygraph test in an effort to determine if the license holder suffers from a DSM IV diagnosis of chemical abuse or dependence. Unfortunately, any other conduct or psychiatric disorder discovered through this battery of questionable discovery is then utilized to stipulate the nurse’s registration. Board Staff is successful in this less than admirable procedure as many nurses think they do not need or can not afford an attorney. Competent, experienced counsel however, can put a halt to this process and mount a successful defense against Board Staff’s position that all criminal conduct is unprofessional and therefore relates to the practice of nursing. Moreover, a knowledgeable attorney will know how to circumvent Board Staff’s insistence that the Nurse undergo an evaluation with a “Board Approved” expert and then submit to the rigors of a “qualifying” polygraph examination.  

The Nursing Practice Act also requires that a license holder maintain good professional character throughout their licensure tenure. Any instance of professional misconduct that, in the Board’s opinion, poses a risk to the public or patients can subject a nurse to a disciplinary sanction. The broad reach of this amorphous standard is utilized by Board Staff in an effort to discipline a nurse where no other statute applies. The final legal force of this rule, however, is restricted by the requirement that criminal convictions must be shown to relate to the practice of nursing in order to sustain a disciplinary action.

An illustration of these two statutes in play can be seen in the 2006 case In the Matter of Charles Stephen Phillips. Here Board Staff initiated disciplinary action against Phillips due to his guilty plea to the felony offense of intoxication assault. Pursuant to the plea agreement Phillips’ prison sentence was probated and he was placed on felony community supervision. The defendant had struck and severely injured a pedestrian while driving home after playing pool and consuming numerous alcoholic beverages. Board Staff sought to revoke Phillips’ license on separate but related theories:

  1. That his felony conviction related to the practice of nursing; and
  2. For committing unprofessional or dishonorable conduct that is likely to deceive, defraud, or injure a patient or the public.

However, after reviewing the facts and testimony of several expert witnesses, the Administrative Law Judge recommended that Phillips should retain his nursing license due to the Board’s failure to connect the unique criminal conduct and the criminal offense of intoxication assault with the practice of nursing. Moreover, the Board’s own expert (a forensic psychologist) determined that the Phillips was not chemically dependent and in fact had quit drinking since the accident. Further, the Board’s position that such conduct was unprofessional and likely to injure the public or patient’s was not substantiated due to Board Staff’s failure to establish a nexus between the criminal offense of intoxication assault and the practice of nursing.

My law firm has tried numerous similar matters. In Debra Ross vs. Board of Nurse Examiners, Board Staff denied the Registered Nurse reinstatement application of Ms. Ross due to four convictions for Driving While Intoxicated. Moreover, Board Staff insisted Ms. Ross was ineligible for licensure because she was on felony probation. Ms. Ross appealed Board Staff’s decision and requested a hearing on the merits at the State Office of Administrative Hearings (SOAH). The Administrative Law Judge (ALJ) recommended that Ms. Ross’ license be reinstated, once again, because of the Nursing Board’s failure to sufficiently relate her conviction to the practice of nursing. In Fact the ALJ made light of Board Staff’s failure to relate Ms. Ross’ criminal conduct of DWI to the practice of nursing through opining:

“Even Assuming one can practice nursing while driving, there was no showing in this case that Applicant was ever intoxicated while practicing nursing, on duty or on call as a nurse. There was no factual nexus established between Applicant’s performance of her professional duties as a nurse and her DWI arrests. Further, the record contains ample, persuasive evidence of her current sobriety."

These cases show that, as a legal matter, many DWI’s will not relate to the practice of nursing: However -this is not always the case. If, for example, a nurse is arrested while coming to or from work or is found intoxicated sufficiently close to their time on duty or on call, this could very well be found to relate to the practice of nursing and result in the discipline of the nurse’s license. Likewise, a finding of alcohol abuse / dependency following an arrest could result in a sanction. This frequently occurs as a result of the pre-trial services and assessment / evaluation process or due to the criminal defense attorney recommending alcohol treatment in an effort to obtain a better plea offer. Evidence of treatment participation is considered by Board Staff as prima facie evidence of a DSM IV diagnosis of chemical abuse or dependence. Criminal defense attorneys would be wise to seek the advice of an experienced administrative law attorney prior to advising a client as to the ramifications of defense strategy and plea bargains on their Client's professional registrations / licenses.