Texas Medical Board Seeks New Legislation Targeting Pain Clinics
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.
Texas Medical Board Makes Progress in Reducing Application Processing Times
Now that 2008 has come to a close, it has become clear that the Texas Medical Board has made significant strides in reducing the amount of time it takes to process first-time applicants for a state medical license. A combination of far-reaching medical malpractice reform and a growing population, has led to a large influx of new doctors seeking to practice in Texas during the past few years. Initially, the Board’s licensure department had trouble coping with the new strain leading to a long waiting period for physicians, even those who did not encounter any eligibility issues during the licensing process. As an attorney for many physicians who did face eligibility problems- such as a prior disciplinary or criminal history-, I remember waiting for a year and sometimes even more for the Medical Board to complete their initial processing of an application let along the initiation of their investigation or the scheduling of an appearance before the licensing committee.
Through the hiring of new licensing analysts and the streamlining of the application process, however, the Medical Board has cut down the amount of time a doctor spends in the licensing process, particularly those who lack any eligibility issues. One such innovation is the Board’s new Licensure Inquiry System of Texas (LIST). LIST allows each physician to obtain an online status page for their application. It lists each item required as part of their application and notes whether or not they have been received. This is a welcome change as in my experience a big part of the problem was the large number of different documents needed by the Board and the difficulty for both myself and applicants in learning exactly what was still needed and confirming when it was in receipt.
For example, I recently represented a physician who had been trying for over three years to obtain a Texas medical license. Prior to seeing me she had submitted her application three times and had even hired an attorney at one point to assist her in the process. Unfortunately, this attorney was not entirely familiar with the Texas Medical Board’s procedures and had been unsuccessful. Part of the problem for my client was that she had some eligibility issues which meant the Board was requiring her to submit various documents and letters from her medical school, residency program, and employers. The Board mandated that these be sent directly to them from their authors in a special sealed format. Each time my client had dutifully requested that the relevant parties send them in the specified format only to be frustrated when they were either sent incorrectly or the Board failed to either confirm or deny their receipt. Even with numerous extensions she would invariably fail to have her entire application completed by the deadline and therefore have to completely restart the application procedure.
Thankfully I was recently able to help this physician through the process and obtain her license. Hopefully, the new procedures such as LIST system will help avoid such situations in the future. Regardless the Board still needs to transfer its progress on the processing of applications from problem-free applicants to those from physicians with eligibility challenges.
As you can perhaps tell from the above example, the licensing process can sometimes be a Byzantine and daunting process for physicians, especially those who can expect to confront eligibility issues. Physicians who anticipate or who are already confronting such obstacles should seriously consider seeking the aid of an attorney familiar with navigating the Texas Medical Board’s licensing procedures. The hand of an experienced counsel can significantly cut down on the stress and confusion attendant with the application process and help ensure that you come out the other end with a state medical license.
Am I Eligible for a Nursing License?: Declaratory Order of Eligibility for Licensure
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.
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.
Nursing Jurisprudence Exam Now Required For All Initial Licensure Applicants:
Effective September 1, 2008, a passing grade on the Nursing Jurisprudence Exam will be required by the Texas Board of Nursing for of all applicants for initial licensure. Under the terms of a recent amendment to Board Rule § 217.17, initial licensure applicants will be tested regarding their knowledge of:
"board statutes, rules, position statements, guidelines, disciplinary sanction policies, frequently asked questions, and other resource documents accessible on the board’s web page relating to the regulation, licensure, and practice of nursing under the following categories:
- Nursing Licensure and Regulation in Texas;
- Nursing Ethics;
- Nursing Practice;
- Nursing Peer Review; and
- Disciplinary Action.
The Exam will consist of a minimum of 50 questions and will be psychometrically validated. Note that a nurse who has passed this exam will not be required to retake it for another or similar license, unless as a specific requirement of the Nursing Board. A passing score will remain valid for application purposes for one year.
The Texas Board of Nursing & Minor Criminal Infractions
For the January 17-18, 2008 meeting of the Texas Board of Nursing (formerly the Texas Board of Nurse Examiners), attorney and general counsel Dusty Johnson presented an informational report on the Board’s policy in regards to minor criminal infractions and licensing. Of particular interest for current and future Texas nurses, the report provides a list of crimes which the Board has deemed to be too minor to warrant an investigation or disciplinary order in connection with a license application or renewal. Following the mandate of Chapter 53 of the Texas Government Code, the BON (BNE) recognizes that there are some forms of criminal conduct which are not sufficiently related to nursing to bring into question the licensee’s competency. Specifically, the listed criminal offenses are compared to the Board’s own Rule 213.28(i) concerning “youthful indiscretions.” Also of note is the finding that the Nursing Board now annually investigates approximately 3000 “positive hits” resulting from the standard FBI criminal background check required of all license applicants.
The criminal offenses considered not to be sufficiently related to the practice of nursing as to warrant an investigation or disciplinary action are:
- One misdemeanor DWI/DUI (not on probation)
- One misdemeanor offense of possession of marijuana
- Up to two misdemeanor theft by check
- One misdemeanor domestic/family violence
- One misdemeanor theft over $20 less than $250 (normally assoc. with shoplifting)
- One misdemeanor shop lifting
- One misdemeanor criminal mischief
- Misdemeanor graffiti
- One misdemeanor criminal trespass
- One misdemeanor disorderly conduct
- Up to two misdemeanor Public Intoxication
- Up to two misdemeanor Pan Handling
- Misdemeanor “loud noise” violations
- One misdemeanor Reckless Driving
- Misdemeanor minor in possession of tobacco
- One misdemeanor selling alcohol to a minor
- Failure to appear
- Vehicular molestation (slashing tires)
It has been my experience that the Board is oftentimes less than faithful to the above stated policy. In fact a discerning reader will note that the exemption of the above offenses is subject to the proviso that the Board does not deem them connected with patient care or the practice of nursing. In reality BNE attorney’s are all too ready to stretch any reading of what relates to the practice of nursing beyond all plausibility in their crusade to discipline nurses. For example, of the above, DWI convictions/deferred adjudication, domestic/family violence, and any form of theft are frequently the basis of Board of Nurse Examiners license investigations and disciplinary action. The Board’s mandate of protecting Texas medical consumers while also ensuring the licensing of much needed new nurses would be better served when the BNE decides to rigorously adhere to these stated policies.
Timely License Renewal Under the Texas Administrative Procedure Act
The Texas Administrative Procedure Act (APA) offers a ready incentive for a licensee such as a doctor or nurse to seek prompt renewal of their license if they face or expect to face a disciplinary action before their respective state licensing board. Chapter 2001.054 of the Texas Government Code (The Administrative Procedure Act) provides a special rule when the professional’s license renewal is contested by the applicable administrative agency and such agency is required to provide timely notice and an opportunity to be heard, two conditions that apply to virtually every disciplinary action. When such a licensee applies for renewal, their existing license automatically remains in effect until their application has been finally determined by the state agency. Further, if the state agency decides to deny or limit the terms of the new license, the professional’s existing license does not expire until the last day for appealing the agency order or other date set by the reviewing court, whichever is later.
Thus a doctor who expects the Texas Medical Board to deny the renewal of their professional license or to take other disciplinary action against them should timely apply as they will still retain and be able to practice under their existing license. The same situation applies to a nurse facing disciplinary action by the Texas Board of Nurse Examiners, an optometrist in front of the Texas Optometry Board, a dentist before the Texas State Board of Dental Examiners, and other licensed medical and non-medical professionals.A licensed professional who fails to seek timely application for renewal loses this guaranteed extension of their existing license. Moreover, once an application is not timely made per the APA, agency rule will dictate the matter and any leverage once afforded to the licensee by a timely application for renewal is lost. Finally, if a licensee is in the midst of a disciplinary investigation it is imperative that they renew their license timely as a failure to do so might allow the agency to impose restrictions against or tacitly deny the re-registration.
The Polygraph Test: Just Say No to the BNE
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The Board of Nurse Examiners for the State of Texas (BNE) evaluates applicant's for RN and LVN licensure per the Nursing Practice Act and the Nursing Board's Rules found in 22 Texas Administrative Code Sec. 217.11 et al. Per the Nursing Practice Act, Board Staff has the ability to investigate an applicant's character and fitness to practice Nursing based on indications that an applicant may lack the "good professional character" to be a licensed nurse.
In an effort to weed out poor or marginal applicants Board Staff notifies individuals that due to their criminal, work, mental health or drug use history they must Petition the Board's Executive Director for a Declaratory Order to practice nursing. Then Board Staff (through the Executive Director) requests that they undergo a forensic psychological evaluation with a polygraph test component. Although it is not explicitly stated in the request the implication is that a failure to submit to the "illegally requested" tests will result in a denial of the application for a license.
Although not legally authorized, Board Staff requests these evaluations for crimes that are often thirty (30) years old and that in and of themselves do not relate to the practice of nursing. Moreover, the forensic evaluation and polygraph tests are often nothing more than a fishing expedition to determine if a person has done something in their past to render them ineligible. Oftentimes what is dicovered is then used as the basis for denial even though it is often not legally admissible evidence. The simple truth is JUST Say No to the polygraph and call an attorney.
You have a right to be heard which is something Board Staff does not tell you when they ask you to undergo the expensive, unauthorized and oftentimes inapproriate and unathorized tests.
Over the last several years I have had Client's asked to submit a Petition for a Declaratory Order for some of the the following reasons:
- A thirty-two year old plea of no-contest to a felony possession charge that resulted in a deferred adjudication and dismissal. This Client also had an impeccable military and professional career, yet Board Staff requested him to undergo a Forensic Evaluation and Polygraph test and tried to force him to agree to a two year probationary term;
- A twenty-five year old arrest and conviction for prostitution;
- A twenty year old Driving While Intoxicated arrest, plea and probation;
- Pleas of no contest to crimes that were misdemeanors and unrealted to the practice of nursing that were all over ten years old;
- Criminal Arrests that resulted in dismissals
In all of these cases we declined the invitation to undergo the forensic / polygraph evaluations and challenged the Staff of the Board of Nurse Examiners by requesting either a hearing on the merits at the State Office of Administrative Hearings or an appearance in front of the Eligibility & Disciplinary Committee. In each case the applicant was granted an unrestricted license to practice nursing.
