Governor Abbott Appoints Six New Members to the Texas Medical Board

Since the start of the new year, Governor Abbott has appointed six new members to the Texas Medical Board. The new members, whose terms are set to expire in April 2021, include five physicians and one public member. One of the new appointees, Sherif Zaafran, M.D., has also been named the Board’s new president. Dr. Zaafran, an anesthesiologist, takes over from Michael Arambula, M.D., Pharm.D., who has severed as the Board’s president for the last several years.

With such a sizable influx of new members and the appointment of a new Board president, it will be interesting to see whether there are any shifts in Board policy or disciplinary priorities. Some of the Medical Board’s most prominent initiatives over the last several years have been its ongoing legal battle over telemedicine, the regulation of medspas and non-surgical cosmetic procedures, and the continued crackdown on what the Board views as the non-therapeutic prescribing of pain medications. Whether these will continue to be a primary focus waits to be seen.

On a more individual level, the new Board members have been regularly appearing at informal settlement conferences. Our firm’s experience with the new appointees has been largely positive in this respect as the new members have been generally receptive to the responding physician’s arguments and attentive to the details of each case even if they do not always reach the decision we are advocating for on behalf of our clients. I am hopeful this trend continues.

As of the date of this post, the Board is also still searching for a new Executive Director. The prior Executive Director, Mari Robinson, had a lengthy tenure with the Board and always appeared to play a strong role in the development and implementation of Board policy. Since Ms. Robinson’s departure last year, the Board’s General Counsel, Scott Freshour, has served as the Interim Executive Director. I anticipate any changes in the Board’s broader policies will begin to take shape once they have selected Ms. Robinson’s permanent successor. 

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.

 

Texas Department of Insurance-Division of Worker's Compensation Increases Oversight and Enforcement Actions Against Designated Doctors

 

For the past several years the Texas Department of Insurance-Division of Worker's Compensation (TDI-DWC) has steadily increased the number of enforcement actions initiated against Designated Doctors serving the Texas worker's compensation system. The results of such enforcement actions can range widely— from a requirement that the Designated Doctor (DD) complete additional training, the payment of a sizable administrative penalty, to removal of the physician's Designated Doctor (DD) status. Most DD's are likely aware of this trend as it corresponds with broader efforts by DWC to more tightly regulate the worker's compensation process.

To accommodate this augmented activity the Division of Worker's Compensation's enforcement division has expanded its staff through recruitment from other state healthcare agencies, such as the Texas Medical Board. As a by-product of this hiring policy the DWC has adopted and modified many of the procedures commonly used by these other administrative bodies. This includes implementing an informal conference procedure which largely models that used by the Medical Board. Similarly, DWC Staff also frequently forward a proposed settlement agreement to a Designated Doctor prior to an informal conference or other adequate opportunity to respond to alleged deficiencies. This procedure mirrors that used by the Texas Board of Dental Examiners and Texas Board of Nursing.

A DD will often first become aware of a pending enforcement action through a records request from DWC's enforcement division asking for all documentation still in the DD's possession related to one or more specified patients. Alternatively, DWC will send the Designated Doctor official correspondence expressly notifying them an enforcement action has been opened, listing the matters being investigated, and ask for a response. Prior to providing a response, a Designated Doctor in receipt of such a letter from the Division of Worker's Compensation should promptly contact an experienced attorney to discuss their case and determine whether it is advisable to retain legal representation. We have seen many clients unknowingly do irreparable harm to their case by submitting a response first and only seeking legal counsel after they receive a proposed resolution from the enforcement division.

The DWC can initiate an enforcement action against a Designated Doctor for a broad array of different reasons, including submitting Designated Doctor's Evaluations (DDE) late, establishing a date of Maximum Medical Improvement (MMI) or Impairment Rating (IR) with which the Division's Office of the Medical Advisor disagrees, or having an Administrative Law Judge subsequently overturn the DD's findings in a hearing involving an injured worker. In fact, the kind of conduct, issues, errors, and omissions that can be considered a violation of the DWC's Rules is vast and many may seem picayune to the physician or outside observer. Regardless, the enforcement division pursues each issue zealously and makes full use of DWC's broad discretion to regulate its DD's in seeking enforcement action.

Any Designated Doctor who has been targeted for a possible enforcement action by DWC should immediately contact an attorney experienced in representing clients before the agency. The risks of going it alone are substantial and the DWC does not shy from removing physicians as Designated Doctors, particularly not in the overactive regulatory climate which currently prevails. My firm has been very successful in achieving successful outcomes for DD's before DWC and this includes physicians whom the enforcement division sought to have removed from the program. A vigorous rebuttal and/or remedial presentation by a lawyer experienced in advocating before the DWC can make all the difference in the final outcome.

 

The Vanishing Informal Conference & The Texas Board of Nursing

Recently, the Board of Nurse Examiners has adopted two practices that besides being unlawful under the Board’s own rules and the applicable law cause great harm to the licensee, one even rising to an effective denial of due process. The first such practice involves the prosecution of disciplinary actions by filing formal charges internally against the nurse, without first offering the licensee a chance to present their case at an informal conference. Not only is this skipping of the informal process contrary to Nursing Board Rules, it also places an undue burden on licensees who are needlessly forced to shoulder increased legal costs and emotional strain.

Similar to many Texas state licensing boards, the Board of Nurse Examiners has adopted rules mandating that a licensee facing a disciplinary action be given the opportunity to participate in an informal settlement conference before the filing of formal charges. Pursuant to the Nursing Practice and Administrative Procedure Acts, the Board Rule regarding informal proceedings expressly states that the licensee be given an “opportunity to be heard.” Title 2 Texas Administrative Code § 213.20(b). Presumably, the rationale for this rule is to ensure that licensees and Board Staff have a chance to informally present their respective cases and hopefully achieve an agreed settlement. Such a procedure avoids encumbering the State Office of Administrative Hearings with an additional case when the matter is open to informal settlement. Likewise the costs of a formal SOAH proceeding are far greater for both the Board and the licensee when compared to an informal conference.

Even more egregiously, the BNE has in some cases decided to file formal charges, broadcast such filing on their website for public viewing, but refuse or wait many months to also docket the case at the State Office of Administrative Hearings. This effectively places the matter in administrative limbo as under the APA until the case is docketed, SOAH does not gain jurisdiction over the matter. This means there will not be a date for a formal hearing, an Administrative Law Judge will not be appointed to preside over the case, and parties can not effectively file motions or perform discovery. Title 1 TAC § 155.9(e).  Such practice clearly violates SOAH’s Rules of Procedure which explicitly mandate that an agency pursuing a contested case “shall” docket the case. § 155.9. Moreover, a failure to docket the case after the filing of formal charges also contravenes the APA’s stricture that parties are entitled to a hearing on the merits. Texas Government Code § 2001.051. Simply put, the Board of Nurse Examiners has no legal authority to pursue this policy -in fact such practice violates the rules.


Besides failing to adhere to the law, the Board’s contested hearing practice also deprives licensees of due process. This is not surprising given that the rules being ignored by the Board were designed precisely to safeguard this Constitutional guarantee. Whenever the Board files formal charges against a licensee they also provide public notice that such licensee faces pending charges of a disciplinary nature. This public notice, without the presence of an agreed order finding any actual wrong-doing by the licensee, in turn causes significant damage to a nurse’s current and future employment prospects, their finances, and their professional reputation. This is all the more so if the BNE has also chosen to wrongly circumvent the informal settlement process. If the licensee was able to actively pursue dismissal of the BNE’s allegations or whatever relief they are entitled to, public notice would not rise to the level of a due process problem. Yet absent the docketing of the case this issue comes into plain focus; the nurse is subjected to the stigma of pending formal charges without any chance to clear their name. The BNE’s heinous policy of filing formal charges against a licensee accusing them of violating the Nursing Practice Act and Board Rules without taking the next step of ensuring they will have their day in court not only violates applicable law, it also represents a deprivation of even the most basic semblance of due process.

Unfortunately, the BNE’s inexcusable trial tactics do not appear to be a merely temporary turn. I speculate that the Board’s current practices may be due to the sharp increase in licensure actions pursued by the Board in recent years and the resulting difficulty to an overburdened Board Staff. Since the surge in licensure actions has no signs of letting up in the near future, the BNE will likely continue its current tact. In truth, these two practices should be seen as linked: the Board shouldered with more disciplinary actions than it can handle starts to bypass informal conferences and instead goes straight to SOAH, but then in order to place the matter on the back-burner, the BNE avoids their responsibility to docket the case. Yet, regardless of the administrative difficulties they may be facing, the law says what it says and that is that a licensee is entitled to and “opportunity to be heard” in an informal hearing and then in a formal hearing on the merits once formal charges have been filed. If the Board truly is experiencing difficulty in handling their case load the correct recourse is to petition the state government for more resources. It is not an excuse to violate the clear mandates of state administrative law.


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.

Temporary Suspension Hearings by the TMB: An Uphill Climb

Physician with AttorneyThe 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:

  1. 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;
  2. The suspension of the doctor's hospital privileges at whatever hospital he/she may be a member of the medical staff;
  3. The disqualification from the individuals Certifying Medical Specialty Board -Board Certification;
  4. The termination and exclusion from participation as a preferred provider by insurance companies such as Blue Cross Blue Shield & Aetna;
  5. Exclusion by the Office of the Inspector General from particpating in Federal reimbursement programs such as Medicare & Medicaid;
  6. Removal from the Approved Doctor's List of the Department of Insurance's Workers Compensation Commission;
  7. 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;
  8. 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;
  9. 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.