New Law Restricts Texas Foreign Physicians' Practice To Medically Underserved Areas

 

As the Texas physician shortage continues, more and more physicians from foreign countries are coming to the state to meet the shortfall. This blog post describes how the Texas Medical Board and legislature have limited the geographic locations in which foreign physicians can practice. This post also discusses the constitutional implications of the law given that it allows the Board to discriminate against foreign physicians.

In 2011, the Texas legislature amended the Medical Practice Act to require that foreign physicians who were neither US citizens nor permanent residents (green card holders) work in a Medically Underserved Area for three years, or promise to so work, in order to qualify for a Texas medical license. The law does not affect current license-holders, physicians who have practiced at least one year prior to September 1, 2012 on a Texas Physician-in-Training permit, or physicians who submitted their applications for full licensure prior to September 1, 2012. Other foreign physicians not subject to one of the foregoing exceptions are subject to the new law.

The main effect of this law is to force physicians in the United States on an H-1B work visa to practice for three years in a Medically Underserved Area. Medically Underserved Areas (MUAs) are designated by the United States Department of Health and Human Services and administered in Texas by the Texas Department of State Health Services. MUAs are areas which suffer from a significant shortage of personal health services and are determined according to a formula weighing a geographic location's poverty and infant mortality rates, the percentage of elderly population, and the ratio of primary care physicians. Many rural counties in Texas have been designated as a MUA as have certain disadvantaged areas in large cities such as San Antonio.

The law is primarily designed to impose the same rules on a foreign physician coming to Texas under a H-1B visa as those applicable to an individual coming to Texas pursuant to a J-1 visa. Foreign physicians coming to the United States to do their residencies usually enter on either a J-1 or an H-1B work visa. Under the federal laws, the J-1 visa allows a physician to do his residency, but at the end of his stipulated time he must return to his country of citizenship and stay there for two years. He is not eligible to seek green card status. However, if the physician elects to work in a MUA, they can receive a waiver and have their status adjusted to H-1B status without having to leave the US and face the 2-year residence abroad requirement. The physician is also then allowed to apply for a green card.

Under federal law, a physician who initially enters on an H-1B does not have to face these burdens. They are eligible to petition for a green card without a break in their stay and employment in the United States. Nor does such a physician have to obtain a waiver by working in a MUA. 

The new Texas law forces a H-1B physician to work in a MUA just as her J-1 counterpart would by making practicing in such an area a mandatory requirement for licensure. It is certainly interesting that the Texas Medical Board is now effectively pursuing immigration policy and determining where a foreign physician can geographically work. There is no claim being made that the H-1B physicians are inferior and so demand more scrutiny than American citizens. In fact a contrary inference may be drawn since it is mandated that the H-1B physician provide care for some of the most medically vulnerable populations in Texas. Moreover, most H-1B foreign physicians will have completed a residency program in Texas. Thus, the Texas law is not in place to protect the public from foreign physicians. The law is merely a way of ensuring that H-1B physicians take jobs in areas no American physician wants to go to—the MUA.

It is also likely possible this new law would have an overall negative impact on the number of new physicians coming to Texas to practice by discouraging the immigration of foreign doctors. If the only way for a foreign physician to practice in Texas is to do so in a MUA (an area which by definition has, for whatever reason, not proven attractive to Texas physicians), they may very likely simply go to another state following their residency in Texas. In effect, Texas health resources spent training new physicians will ultimately go to benefit other states.

It is also important to keep in mind that a foreign physician in the country on a H-1B visa cannot open their own practice, even in a MUA. They can only work for a sponsoring employer. Accordingly, foreign physicians are being forced to find a pre-existing physician practice in an area which is designated a MUA precisely because there is already severe shortage of physicians. It is unclear how areas which are already struggling to economically support a basic health care structure are going to integrate an influx of foreign physicians.

Besides these issues of impact, the question also arises over whether Texas can, in fact, legally discriminate between physicians based solely on their citizenship status. At the time this amendment to the Medical Practice Act was passed, the federal courts has already seemed to indicate the answer is yes. The Fifth Circuit Court of Appeals, the federal appellate court which sets precedent for federal courts in Texas, held in 2005 that states could discriminate against H-1B visa holders as much as they pleased provided there was some "rational basis" for the discrimination. See LeClerc v. Webb, 419 F.3d 405, 422 (5th Cir. 2005).  Rational basis review is a very weak standard and only requires that the law in question is rationally related to a legitimate government interest. Very few statutes are ever struck down for lacking a rational basis. Thus according to the Fifth Circuit, there is no violation of the Constitution's Equal Protection clause by treating H-1B holders differently and separately from citizens.

However, in January of 2012 the Second Circuit Court of Appeals in New York held the precise opposite. That Court held that states could only discriminate against H-1Bs if there was a compelling reason. Dandamudi v. Tisch, 686 F.3d 66, 79 (2nd Cir. 2012). This standard, known as strict scrutiny, is very hard for a state to meet. All but two statutes have been ruled unconstitutional when evaluated under the strict scrutiny standard. Accordingly, Dandamudi, held that states cannot, outside of a very compelling reason, discriminate against foreigners based on their citizenship status, just as states could not discriminate against people based on race.  

Though the Fifth Circuit's LeClerc decision is still valid law in Texas federal courts, the challenge posed by Dandamudi is, nevertheless, interesting. Importantly, neither of these cases is binding on the Texas state courts which will be able to decide for themselves which standard, rational basis, or strict scrutiny, they would apply were this law to be challenged. 

Regardless, a foreign physician on a work visa in Texas must now practice in a restricted set of geographic areas, whereas an citizen physician faces no such impediment. This difference in outcomes is not based on any quality of care concerns that a foreign doctor may raise, but merely on the foreigner's disadvantaged immigration status. It is unclear as to what sort of impact the new law will have on Texas health care. My best guess is that far fewer foreign physicians will be staying in Texas even if this is the state where they completed their residency. In my opinion, this is not the best strategy when the state is already facing a severe physician shortage, particularly in primary care.

Texas Medical Licensure for Physician Graduates of Overseas Medical Schools

 

As tuition at US medical schools continues to increase at an astronomical rate, more and more aspiring doctors are looking abroad, particularly to the Caribbean, to pursue their medical degrees.  Moreover, due to the shortage of physicians in the United States the country needs more physicians from other countries.   Both sets of medical graduates of foreign medical schools face challenges when they seek licensure in the United States. This post particularly describes the additional burdens faced by graduates of foreign medical schools as they seek licensure in Texas. 

The Texas Medical Board regulates the practice of medicine in the State of Texas. This includes determining licensure requirements for medical school graduates. Part of this determination requires verifying that the graduate met certain minimum requirements during the course of their medical education. While such a verification for graduates of United States medical schools are relatively easy—the Board relies on the Liaison Committee on Medical Education and American Osteopathic Association Bureau of Professional Education to approve those schools—the verification of foreign medical schools is a much more cumbersome process. It should be noted that the process described here is independent of citizenship status—i.e. the vetting process for foreign medical schools is the same regardless of whether the foreign medical school graduate is a United States citizen or a citizen of another country.  

The verification process first begins with a degree equivalency determination. The foreign medical graduate (FMG) must get their credentials evaluated by the Educational Commission for Foreign Medical Graduates (ECFMG), a non-profit organization that deals with determining the equivalency of foreign medical degrees. ECFMG will weigh the foreign transcript and grades and convert the coursework into an equivalent for a US school. If ECFMG determines that the degree received is equivalent to a US Medical degree then it will award the FMG a certificate saying so. ECFMG may find that a foreign medical degree is equivalent to a US medical degree even if that degree is a baccalaureate one. Obtaining a certificate from ECFMG is also required before the foreign medical school graduate may sit for the United States Medical Licensing Examination (USMLE), which is the standard medical licensing examination in the United States. 

However, a certificate from the ECFMG is only a starting point for the foreign medical graduate. The Texas Medical Board further requires that the foreign medical graduate show that the school itself rather than just the coursework is substantially equivalent to a Texas medical school. Such a determination requires documentation of:

  • a Foreign Educational Credentials Evaluation from the Office of International Education Services of the American Association of Collegiate Registrars and Admissions Officers (AACRAO) or an International Credential Evaluation from the Foreign Credential Service of America (FCSA), or another similar entity as approved by the board;
  • a board questionnaire, to be completed by the medical school and returned directly to the board;
  • a copy of the medical school's catalog;
  • verification from the country's educational agency confirming the validity of school and licensure of applicant;
  • proof of written agreements between the medical school and all hospitals that are not located in the same country as the medical school where medical education was obtained;
  • proof that the faculty members of the medical school had written contracts with the school if they taught a course outside the country where the medical school was located;
  • proof that the medical education courses taught in the United States complied with the higher education laws of the state in which the courses were taught;
  • proof that the faculty members of the medical school who taught courses in the United States were on the faculty of the program of graduate medical education when the courses were taught; and
  • proof that all education completed in the United States or Canada was while the applicant was enrolled as a visiting student as evidenced by a letter of verification from the U.S. or Canadian medical school.

 

However, in spite of meeting these documentary requirements a foreign medical graduate’s medical school may still be denied recognition by Texas if the medical board of another state has denied recognition to that medical school. At this point the foreign medical graduate’s only recourse is to go through a degree equivalency process before the Texas Higher Education Coordinating Board (THECB). To determine the validity of the foreign degree THECB looks at whether the medical school was accredited by an agency in the foreign jurisdiction, and whether the foreign agency's evaluation procedures were as rigorous as THECB's. THECB may also require a site visit by its staff. Accordingly, the THECB process could be very expensive for the foreign medical graduate and could exceed $5,000.

There are certain instances where the foreign medical graduate does not have to go through the substantially equivalent determination. Where the Board has previously approved a foreign medical school for a prior graduate, it usually does not require the foreign medical graduate to submit proof of substantial equivalence. Additionally, a foreign medical graduate who has acquired a certificate from a specialty board that is a member of the American Board of Medical Specialties or the Bureau of Osteopathic Specialists, is also usually exempt from the substantially equivalent vetting process. 

As can be seen from the foregoing, obtaining a Texas license as a graduate of a foreign medical school can be very challenging because of the substantially equivalent vetting process. It is helpful to contact an attorney experience in dealing with the Texas Medical Board and its licensing process. Here at the Leichter Law Firm we have handled hundreds of physician licensure cases and would be able to provide you assistance navigating the often bewildering process of foreign medical school equivalency and Texas licensure. 

What Every LPC-Intern Should Know: TSBEPC and What is Considered to be an Independent Practice

My law firm has recently represented several LPC-Supervisors and LPC-Interns before the Texas State Board of Examiners of Professional Counselors (TSBEPC) in reference to avoiding or defending against charges that a LPC-Intern is operating an independent counseling practice while earning the 3,000 supervised experience hours necessary for full licensure. The recurrent problem has been that outside a handful of Board Rules, TSBEPC has provided little to no public guidance on how they interpret and apply the bar on LPC-Intern’s operating an independent practice. As a consequence, both LPC-Interns and their LPC-Supervisors have unwittingly become the target of a Board investigation and subsequent disciplinary action.

Board Rule 681.52, located in Title 22 of the Texas Administrative Code, clearly enshrines the fact that “An LPC Intern may not practice within the Intern’s own private independent practice of professional counseling.” The same Rule goes on to specify that an LPC-Intern cannot directly receive payments by a client, client records are not the property of the intern, an LPC-Supervisor cannot be the employee of an Intern, and finally, all billing documents and advertisements must reflect that the LPC-Intern is an intern pursuant to a temporary license and list the intern’s LPC-Supervisor. Outside the above, no further guidance is given to LPC’s as to how to set up a proper LPC-Intern – LPC-Supervisor relationship or what constitutes an independent private practice.

This would be fine except the LPC Board has a particularly idiosyncratic interpretation of this Rule and this includes enforcing requirements that are nowhere apparent on the face of the applicable rules. For example, LPC-Interns and Supervisors need to be aware that according to TSBEPC, LPC-Interns are not allowed to rent- out of their own pocket- office space where they will see clients even if it is in a supervised capacity. In other words, LPC-Interns are expected to see clients in an office space that is provided/rented by their Supervisor or which is rent-free- such as unpaid work at a local mental health center for the disadvantaged. 

LPC-Interns are also not supposed to have a Tax ID number even if such a number is retained solely for tax purposes and they are otherwise in conformance with TSBEPC requirements, such as the rule barring the receipt of payments directly from clients. Likewise, the Board appears to believe that LPC-Interns cannot file reimbursement claims with an insurer even if it is a joint filing with their Supervisor and the insurance provider requires that, as the person who provided the counseling services, the Intern must be including in the claim. TSBEPC also maintains that LPC-Intern’s advertising on the Psychology Today databank must include “LPC-Intern” in their profile even though this is usually difficult to accommodate due to the way the website is arranged. Shortened versions like “LPC-I” or “LPC-Int” are not in compliance.

None of the above requirements are necessarily objectionable or unreasonable in and of themselves; the problem is that no one is aware of them unless they have already been actively investigated or disciplined by TSBEPC or know someone who has. The LPC Board needs to either adopt supplemental rules or publically issue guidelines placing LPC-Interns and Supervisors on notice of these interpretations. Otherwise, TSBEPC is simply creating an unnecessary backlog of complaints and licensees are being subjected to investigation and possible discipline based on unpublished mandates.

More importantly, any attempt by TSBEPC to discipline licensees due to such unwritten requirements is likely illegal and arbitrary and capricious under basic principles of administrative law. Unfortunately, an LPC has no easy means to force the Board to apply its rules as they presently exist until they are already far entangled in the complaint and disciplinary process. A subjection of these official but unwritten requirements to the rulemaking process would also allow the Board and stakeholders to come together and find whether such rules are even realistic or practical. As an attorney involved in several of these cases, I have been informed that the Board’s understanding, particularly as to the renting of office space by LPC-Interns, is in direct conflict with what has been the widespread practice among Supervisor and their Interns for many years.

Regardless, it is the LPC-Interns who typically have the most to lose. I have seen the Board prevent an Intern from earning their full license or even disallow thousands of supervised experience hours due to a perceived technical violation of the above unwritten interpretations of Board rules. Anyone who is being pursued by the Board for these type of complaints or who is merely unsure whether or not their practice is set up correctly would be wise to contact an attorney familiar with the LPC Board’s disciplinary practices. Otherwise, a licensee could find themselves involved in a disciplinary matter which could have easily been avoided.

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:

  1. One misdemeanor DWI/DUI (not on probation)
  2. One misdemeanor offense of possession of marijuana
  3. Up to two misdemeanor theft by check
  4. One misdemeanor domestic/family violence
  5. One misdemeanor theft over $20 less than $250 (normally assoc. with shoplifting)
  6. One misdemeanor shop lifting
  7. One misdemeanor criminal mischief
  8. Misdemeanor graffiti
  9. One misdemeanor criminal trespass
  10. One misdemeanor disorderly conduct
  11. Up to two misdemeanor Public Intoxication
  12. Up to two misdemeanor Pan Handling
  13. Misdemeanor “loud noise” violations
  14. One misdemeanor Reckless Driving
  15. Misdemeanor minor in possession of tobacco
  16. One misdemeanor selling alcohol to a minor
  17. Failure to appear
  18. 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

polygraph forensic quandryThe 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.