Board of Nursing Abuse of License Renewal Policy
Currently I am representing a nursing client in a very serious case against the Texas Board of Nursing at the State Office of Administrative Hearings. This matter has been progressing over a long period of time and in the interim my client’s RN license came up for renewal. She filled in the required forms and sent them in along with the mandatory fee. In response she received a letter from BON informing her that they would not renew her license at this time due to the unresolved status of her SOAH proceeding. They have continued to deny her renewal application and so we have been forced to ask for a second SOAH hearing on this issue. Essentially, the BON has made my client seek a separate and additional SOAH proceeding contesting their refusal to renew her license because of the still pending status of the original SOAH proceeding. This makes little sense as a matter of law or logic.
Under the Administrative Procedure Act, a nurse who timely files an application to renew their license ensures that their current license will remain in effect until the final resolution of any ongoing disciplinary proceeding. Texas Government Code § 2001.054. Thus until a final and negative result has emerged from the original SOAH case, the Board can not affect my client’s current nursing license. The only way they could would be through an emergency suspension procedure wherein they would be required to show that my client presents such an immediate and serious threat to the public that the suspension of her license is warranted without a prior hearing. Yet, they did not choose to use this procedure and so must wait till the conclusion of the disciplinary process.
The logic of this rule is clear; unless they can meet the higher showing required of an emergency suspension procedure, the BON cannot sanction a nurse until the contested case process has ended. They have to meet their burden of proof just as any other government agency must before they can take a person’s professional license.
The correct response to my client’s renewal application would have been to either grant it or to stay any decision until the resolution of the prior SOAH action, not an outright denial. Their denial has forced my client to seek, as outlined above, a second contested case proceeding on this issue. If she did not, then after thirty days the Board’s denial would become final meaning that even if she prevailed in the original proceeding her license would have lapsed in the meantime.
What makes it especially difficult to fathom the BON’s action as taken in good faith is the fact that even if they renewed the license, they would be free to suspend, revoke, or apply any other encumbrances to it if they prevail in the ongoing SOAH hearing. A renewed license would have no effect on the array of sanctions that could be opposed if they receive a favorable finding in the underlying proceeding.
The BON’s stance on this issue represents an abusive tactic that contravenes the relevant law and forces my client to suffer the additional emotional strain and attorney fees associated with her need to contest this new issue. This is lamentably another attempt by the Nursing Board to warp the administrative process and strong-arm a nurse when it looks like they might not get what they want.
Temporary Suspension Hearings by the TMB: An Uphill Climb
The Texas Medical Board (TMB) pursuant to the Medical Practice Act section 164.059 has the authority to temporarily suspend a physician's license to practice medicine with or without notice if the physician poses a real and imminent threat to the public through his/her continuation in practice. Although the evidentiary threshold is more stringent than in disciplinary matters, the panel who decides the physician's fate is comprised of three members of the Texas Medical Board and not an independent and neutral Administrative Law Judge. Needless to say, Staff of the Board rarely loses when it decides to remove a physician from practice through the utilization of its emergency suspension powers. Generally, the Board will invoke this authority for the following types of violations and acts:
- Excessive or intemperate use of drugs or alcohol that in the Board's opinion could endanger a patient's life;
- Non-Therapeutic precribing practices;
- Untreated mental illness;
- Repeated standard of care violations;
- Repeated and dramatic boundary violations.
What is not apparent to most physicians who are faced with this process or loss, are the ramifications which follow the entry of an order temporarily removing the physician from practice. When the hearing is with notice or a noticed hearing is waived in an effort to remedy the problem and settle the case for an Agreed Disciplinary Order at a later date the following consequences will ensue:
- The return of the physician's Drug Enforcement Adminstration & Department of Public Safety Controlled Substances Registrations and the potential long term loss of such privileges;
- The suspension of the doctor's hospital privileges at whatever hospital he/she may be a member of the medical staff;
- The disqualification from the individuals Certifying Medical Specialty Board -Board Certification;
- The termination and exclusion from participation as a preferred provider by insurance companies such as Blue Cross Blue Shield & Aetna;
- Exclusion by the Office of the Inspector General from particpating in Federal reimbursement programs such as Medicare & Medicaid;
- Removal from the Approved Doctor's List of the Department of Insurance's Workers Compensation Commission;
- A swarm of negative press as the TMB issues press releases to the physician's local paper and television networks and such stories often make front page headlines;
- The filing of new and otherwise unremarkeable law suits as a result of the now publicly disclosed negative information regarding the physician's character or practice;
- A wave of new Complaints & Investigations to and by the TMB as patients who were otherwise unknowing or on the fence now feel justified in coming forward.
