Given the current aggressive regulatory climate surrounding the treatment of chronic pain, it is worthwhile to look back and understand how the applicable law developed prior to the Legislature's empowerment of the Texas Medical Board to oversee registered pain clinics in 2011. This prior law, including the Intractable Pain Treatment Act, was designed to safeguard physicians who treat chronic pain while remaining within the standard of care. It has been my experience as an attorney representing numerous physicians, mid-level providers, and pharmacies, that this prior law has largely been either forgotten or eroded to the point it no longer provides real protection to medical professionals.
The Intractable Pain Treatment Act (IPTA), separate from the Medical Practice Act, is codified at Chapter 107, Texas Occupation Code, and was intended to provide physicians with a safe harbor in prescribing controlled substances and dangerous drugs to treat pain. In this post we provide a background of this Act and its current relevance, or lack thereof, in the practice of medicine.
The Intractable Pain Treatment Act was passed in 1989 to deal with the problem that physicians were being disciplined by the Texas Medical Board because the Board refused to distinguish habitual users of narcotic drugs from patients with genuine medical needs. Prior to the passage of the IPTA, the Medical Practice Act allowed the Texas Medical Board, known at that time as the Texas Board of Medical Examiners, to discipline physicians for prescribing controlled substances or dangerous drugs to a person "known to be habitual users of narcotic drugs, controlled substances, or dangerous drugs or to a person who the physician should have known was a habitual user of the drugs." This phrasing of the Medical Practice Act made patients taking opioids to alleviate genuine suffering "habitual users." Accordingly, physicians prescribing pain medication to cancer patients were subject to disciplinary action by the Board. Such was the effect that physicians refused to prescribe these therapeutic drugs and hospitals refused to let physicians prescribe them on the premises.
The Intractable Pain Act of 1989 sought to rectify this basic problem by protecting physicians from Texas Medical Board discipline if they prescribed the medication for "intractable pain." Intractable pain is defined as pain the cause of which cannot be removed, treated, or cured. The IPTA also prohibited hospitals from restricting credentialed physicians from prescribing pain medications for intractable pain.
In 1993 the Legislature modified the Medical Practice Act to prohibit doctors from prescribing to a person who was a known "abuser" of controlled medications. In 1996 the Legislature amended the Intractable Pain Act to allow physicians to prescribe controlled medication even to such abusers as long as the medication was strictly for the management of their diagnosed pain which the physician had a duty to monitor. The physician was also required to document the understanding between the doctor and the patient and to consult with an addiction specialist as appropriate. These restrictions were only required when dealing with patients who were drug abusers or had a history of drug abuse.
In its final form the IPTA was meant to provide a safe harbor for Texas doctors who treated long-term pain provided the controlled medications they prescribed were actually for an underlying pain condition. This safe harbor protects physicians who treat known drug abusers for intractable pain provided they monitor the patient and consult with the appropriate mental health expert. Yet the protections of the safe harbor are slight; by the Act's own terms, the Texas Medical Board can still discipline physicians if they prescribe non-therapeutically or prescribe in a manner inconsistent with the public welfare.
The safe harbor provision provided by the Intractable Pain Treatment Act has been recognized, albeit modified, by the Board in its pain management rules codified at Chapter 170, Title 22 Texas Administrative Code. The rules recognize that pain treatment is a vital and integral part of the practice of medicine and that doctors should be able to treat pain using sound clinical judgment without the fear of disciplinary action from the Texas Medical Board. Yet, the rules go on to list several actions that should be involved in the treatment of chronic pain including the formulation of a pain management contract requiring random drug screening.
From the rules it is apparent that whereas the Intractable Pain Treatment Act required heightened monitoring and more rigorous documentation merely for known drug abusers, the Board's most recent rules make that standard applicable to all long-term pain management patients. While the rules do call themselves "guidelines" it should be noted that the Texas Medical Board will allow deviation from the guidelines only if the physician's rational for treatment indicates sound clinical judgment documented in the medical records.
To conclude, the Intractable Pain Treatment Act has largely been subsumed by the Board's pain management rules codified at Title 22, Chapter 170, Texas Administrative Code. Whereas the IPTA was enacted to provide safe harbor to physicians prescribing long-term pain medications, the Board's rules make prescribing harder by requiring extensive documentation from physicians. Whereas the IPTA required monitoring and more rigorous documentation only for known drug users, the Board rules holds all patients to that standard. All that is left from the Intractable Treatment Act is the prohibition against hospitals from restricting the ability of a credentialed physician to prescribe and treat intractable pain.
The rule's emphasis on documentation is important as in my experience most of the chronic pain cases pursued by the Texas Medical Board in the last few years rely heavily on a strongly biased reading of the physician's medical records. When the records are sent out to the Board's confidential expert panel for examination prior to an informal conference, the reviewers invariably apply an unworkable standard of documentation and then conclude, without further evidence, that the absence of certain items means the physician is engaged in non-therapeutic prescribing of medications. Through this process what is at worst a documentation issue is transformed by the Board into a physician who practices outside the standard of care and may even be operating a "pill mill."
The story of the IPTA is indicative of the back and forth history of the treatment of chronic pain in Texas. It demonstrates how the regulatory climate has consistently shifted back and forth between those in favor of broadening access to chronic pain treatment and those who view this ready availability as too broad and prone to abuse by both physicians and patients. Hopefully, the current campaign being waged by the Texas Medical Board, Drug Enforcement Administration, Texas State Board of Pharmacy and local task force will soon face substantial popular or legislative pushback. As it stands, I feel substantial damage is being done to the availability of chronic pain treatment, particularly for patients who are uninsured and not covered by Medicare, as legitimate physicians are pressured to leave this specialty by an out-of-control Texas Medical Board and Drug Enforcement Administration.
Texas Medical Board Schedules Wave of Temporary Suspension Hearings Targeting Pain Management Physicians and Physician Assistants
As we reported earlier this month, the Drug Enforcement Administration (DEA) along with several state agencies, including the Texas Medical Board (TMB) and Texas State Board of Pharmacy (TSBP), has been increasingly active in Houston over the past few months. More than ever before, the joint state and federal taskforce has taken a scorched earth approach to the battle against alleged “pill mills.” The taskforce has generally shown up at clinics and pharmacies unannounced, seizing records and equipment, and demanding surrender of the practitioner’s DEA prescribing registration. The practitioners targeted by this task force and these methods are not just notorious “pill mill” doctors and pharmacies, but also a large number of legitimate pain management physicians, physician assistants, nurse practitioners, pharmacists and pharmacies that just happen to be operating at ground zero of the war on prescription drugs. The net has been cast wide, and many practitioners are finding themselves in need of competent and experienced legal representation.
A Surge in Temporary Suspensions on the Horizon:
Many of the physicians or physician assistants that have any present or past association with these raided clinics are finding themselves the target of Temporary Suspension proceedings by the Texas Medical Board, based solely on their association with an alleged “pill mill”. We have received numerous calls over the last few weeks from physicians and physician assistants who have received notice of Temporary Suspension proceedings and are seeking the services of professional license defense lawyers. The Texas Secretary of State’s website currently lists eight Temporary Suspension hearings to be heard by the Medical Board just next week.
Temporary Suspension proceedings are initiated when Medical Board staff believes they have evidence sufficient to prove that the licensee’s continued practice constitutes a continuing threat to the public welfare (See Occupations Code, Section 164.059(b)). If after a Temporary Suspension hearing, the Disciplinary Panel, made up of Medical Board members, decides that Medical Board staff has indeed presented evidence sufficient to prove that the licensee constitutes a continuing threat, then that licensee’s license is suspended that very day. As such, there is a great deal at stake for any licensee that finds themselves in that position, and the benefit of hiring an attorney well-versed in medical license defense should be clear.
The Board’s Temporary Suspension remedy has traditionally been used sparingly, due to its severe impact on a licensee’s career, and due to the sizeable burden that Medical Board staff shoulders in proving that a licensee is a continuing threat to public welfare. The wave of Temporary Suspensions that the Board currently has scheduled represents a significant departure from that thinking. The commonalities in these cases are that the practitioners have some connection, either present or past, with a pain management clinic that has been targeted by the DEA taskforce. The licensee may be a physician who was serving as a part-time supervising physician or medical director. The licensee may be a physician assistant that worked in the clinic on a contract basis. Whatever the association, Medical Board staff’s theory of prosecution equates any association with an alleged “pill mill” to a continuing threat to the public, and often the evidence that they are using to show a continuing threat is equally as thin. However, if a licensee is not equipped to challenge Medical Board staff’s evidence and legal theories, it is likely that the Medical Board panel will find with Board staff.
What should you do if you receive notice of a Temporary Suspension hearing?
You should hire an attorney immediately upon being noticed of a Temporary Suspension hearing in front of the Texas Medical Board for several reasons.
First, you are most likely not equipped to represent yourself in a contested hearing in front of the Texas Medical Board. The disciplinary process at the Board is not intuitive and Temporary Suspension proceedings are particularly quirky. It is to your benefit to hire someone that is capable of putting on a cohesive defense that will include preparing and presenting documentary evidence, putting on witness testimony, cross-examining Board staff’s witnesses, and zealously advocating on your behalf.
Second, the Medical Board is only required to give you 10-days notice by Board rule (Texas Administrative Code, Title 22, Chapter 187.60(2)). This is a very limited amount of time to put together a strong and comprehensive defense. The best way to combat this challenge is to hire a lawyer that is capable of preparing a defense under these conditions, and to hire them immediately, so as to not waste time.
Third and finally, you should seek legal counsel and potentially hire an attorney because there is a great deal at stake with a Temporary Suspension hearing. It is nothing to be taken lightly. Your ability to practice under your license in the short term is in jeopardy, as is your future practice. A temporary suspension is on your public record forever, and its existence will definitely require explanation, and could potentially cost you opportunities in the future.
If you receive a visit from the DEA taskforce or you are given notice of a Temporary Suspension hearing from the Texas Medical Board or Texas State Board of Pharmacy, please do not hesitate to contact the professional medical license defense attorneys at the Leichter Law Firm. You need the guidance of an attorney that is experienced in medical licensing law, including cases dealing with allegations of non-therapeutic prescribing and prescription drug diversion, as well as the potential criminal ramifications. The Leichter Law Firm’s attorneys have represented clients in similar circumstances and have gained positive results for our clients. Give us a call at (512) 495-9995 or submit an inquiry through our website at http://www.leichterlaw.com/ for a free consultation.
Since the summer of 2011, the Texas Medical Board has been considering adopting a new rule applicable to non-surgical, cosmetic procedures such as Botox or dermal filler injections. The proposal would create new standards and requirements applicable to physicians who perform or delegate the performance of such procedures. Currently, this area is covered by Chapter 157 of the Medical Practice Act which governs a physician's ability to delegate the performance of medical acts to a non-physician. This includes a person who is not licensed, such as a medical assistant, and individuals who are licensed but are not allowed to diagnose illness or create a treatment plan, such as a cosmetologist.
Underlying the Texas Medical Board's initiative is a concern that physicians have not been exercising sufficient control and supervision over the unlicensed persons performing delegated non-surgical, cosmetic medical acts. This includes allowing an unlicensed person to determine the need for the cosmetic procedure as well as deciding how this procedure was to be performed- i.e. how many Botox units to use and the selection of injection sites. In the reports submitted to the Board Committee drafting the new rule, Medical Board Staff have argued that this constitutes the unlicensed practice medicine.
Prior to the initial stakeholder's meeting weighing in on a proposed rule, the attorneys at my firm had represented a physician who had delegated filler injections to a medical assistant. The Board invited our client to an informal conference to address allegations that this constituted improper supervision and delegation. Based on our argument that the physician's actions were proper under Chapter 157's delegation provisions, the Texas Medical Board closed the case and convened the stakeholder's meeting.
The current version of the proposed rule would supplement the present requirements for physician delegation found in Chapter 157. The main change is a mandate that any patient receiving a non-surgical, cosmetic procedure must first be assessed and examined by the physician or, in the alternative, a midlevel practitioner acting under the delegation of the physician. The physician or midlevel practitioner is then responsible for establishing a diagnosis, obtaining the patient's informed consent, and preparing a treatment plan. Under the present law, a non-physician can arguably perform many of these functions as long as it is closely delineated by standing delegation orders and protocols developed by the physician.
The Texas Medical Board's proposed new rule also requires that either the physician or a midlevel practitioner be on-site during the performance of any delegated procedures. Additionally, the supervising physician is required to develop and maintain detailed protocols governing their delegates and must also create a quality assurance program satisfying various criteria. Importantly, the proposed rule makes clear the physician retains ultimate responsibility for the safety of the patient and the proper performance of the procedure.
Several exemptions are located in the rule: These include laser hair removal performed in accordance with the Texas Health and Safety Code, the use of nonprescription devices, surgery as defined in the Medical Practice Act, and procedures performed by midlevel practitioners at their supervising physician's primary practice site.
Although the rule has not yet been accepted by the Medical Board, I anticipate it will eventually be adopted. This has been a hot topic lately and it is clear the existing law is not satisfactory to both the Board's Members and Staff. Physicians and unlicensed individuals performing these types of procedures need to be aware of the new rule and poised to ensure they are in compliance when and if it is enacted.
The Texas Medical Board aggressively pursues perceived violations in this area and I would only expect this to increase should the rule be adopted. My firm recently represented a licensed cosmetologist who was issued a Cease and Desist Order by the Board based on their belief my client was practicing medicine in the course of providing Botox injections due to inadequate oversight by her supervising physician. Attorneys at the Leichter Law Firm filed an appeal against the Order and the Texas Medical Board agreed to rescind it based on inadequate notice to our client. Currently, the matter is expected to proceed to a new cease and desist hearing.
Physicians and their delegates concerned about remaining in compliance with both the current law and proposed new rule should feel free to contact the Leichter Law Firm at 512-495-9995. We have assisted several other clients in this area some of which faced active cases with the Texas Medical Board and others who only wanted to ensure their protocols and procedures passed muster.
Physicians that treat chronic pain patients or prescribe a large volume of narcotic pain medications ought to be increasingly aware of the pressure that is being exerted by the Texas Medical Board, the Drug Enforcement Administration (DEA), and their multi-agency task force. We have drawn attention to the crackdown on alleged “pill mills” and alleged non-therapeutic prescribing on this very blog. Likewise, we have previously highlighted the pain clinic legislation that allows the Medical Board to monitor those practices more closely (see Occ. Code Sec. 167 and Board Rules Sec. 195). The physicians who have been found in violation of these laws, have felt the negative impact on their ability to practice- loss of their DEA controlled substance certification, restrictions on their practice, and/or revocation of their medical license. In fact, our attorneys have successfully represented many physicians, as well as other health care professionals, who have been targeted as part of this combined state and federal initiative.
More recently, the State of Texas has started charging these same physicians criminally, meaning potential felony convictions and lengthy prison sentences. The State’s legal theory is that Texas Occupations Code sec. 165.152 allows them to charge these violations of the Medical Practice Act (Act) as a third degree Felony. The most troubling implication of the State’s legal theory, however, is that if it is accurate Texas prosecutors could conceivably bring felony charges for any violation of the Medical Practice Act, no matter how insignificant. The State’s legal argument has not yet been challenged in court, but we believe that it does not hold up upon review of the statutes.
It might help to set up a quick factual scenario similar to those we have seen recently. A physician takes a position with a clinic, whose clientele are at least 50% chronic pain patients. In order to comply with Occupations Code Sec. 167, the clinic must obtain a pain clinic certification from the Texas Medical Board. The physician applies for and receives the pain clinic certification. However, according to Board rule 195.2(a)(1), the certification can only be held by the clinic’s owner, and since this physician is not the owner of the clinic, he is in violation of the Act. If it correct that the criminal liability provisions of the Texas Medical Practice Act treat any violation of the Act as a felony criminal offense, then this physician could now be charged and prosecuted for a third degree felony by the State of Texas. In fact, this exact scenario is currently playing out in one Texas' largest metropolitan areas.
The State's belief that virtually any violation of the Texas Medical Practice Act can be classified as a felony is not borne out by a reading of the applicable statutes. Section 165 of the Act sets out the penalties for violations of the Act and Board rules. Criminal penalties for violations of the Act are set out in Subchapter D. There is a general criminal penalty statute (see Occ. Code Sec. 165.151) that states that any violation of the Act is a criminal offense, but if further states that if no penalty is specified, the offense constitutes a Class A misdemeanor. A thorough review of the pain clinic certification statute and rules do not specify a criminal penalty. It follows that, if the State wants to criminally charge that Texas physician for violating the Act, the only offense available is a Class a misdemeanor. Then how can the State charge a physician who violates the above statute with a third degree Felony?
The State has found their authority in the statute that directly follows, Occupations Code Sec. 166.152, which states that a person commits an offense if the person practices medicine in Texas in violation of this subtitle, and further states that the offense for such is a Felony of the third degree. If read out of the context, this statute would justify the State’s prosecution; the physician practiced in violation the Act and this offense constitutes a Felony. However, there are multiple problems with that reading of the statute, and the context and intent of the legislature do not support the State’s legal theory.
First, the offense that Occupations Code Sec. 166.152 has historically referred to is the practice of medicine without a license- not just any violation of the Act. Thus this section has traditionally been targeted against unlicensed individuals who hold themselves out as physicians. There is no precedent for the State’s broad reading of the statute, and it is clear that the Legislature never intended it to be read that way. Senate Bill 1303 that eventually became this statute even contained a preamble that read “An Act relating to the practice of medicine, including the rehabilitation of impaired physicians and the unlicensed practice of medicine; providing a penalty” (my italics). The reading of Sec. 166.152 in context makes it clear that the Legislature was not looking to make every violation a felony, but rather to criminalize the unauthorized, unlicensed practice of medicine.
Second, if Occupations Code Sec. 166.152 could be read to make any violation of the Act a third degree Felony, then any physician who fails to timely change their mailing address with the Board (Board rule 166.1(d)) or complete their 48 hours of continuing medical education every two years (Board rule 166.2) could be charged with a Felony for the violation. This ludicrous result underscores the States faulty legal theory. This absolutely could not be the Legislature’s intent when writing the statute, and of course we would argue that it was not.
Third, the context of Occupations Code Sec. 166.152 does not support the State’s reading. As I noted previously, there is a general criminal penalty statute directly preceding it, Section 166.151, which states that any violation of the Act constitutes a Class A misdemeanor if the penalty is not specified. If Section 166.152 could be read to broadly state that any violation of the Act is a third degree Felony, then the preceding statute 166.151 would be either contradictory or unnecessary.
In conclusion, the pending felony prosecutions under this legal theory are very problematic. If left unchallenged, they subject the defendant physicians to criminal penalties far more serious than restrictions on their medical practice. The possible implications of this development should seriously disturb any physician practicing in Texas. But, I believe that the State’s legal theory is weak and subject to challenge by attorneys who understand the Medical Practice Act and administrative law statutes the State is relying on. Unfortunately, a single case poorly argued could set a bad precedent for other districts. If you are a Texas physician who is facing discipline by the Texas Medical Board and related potential criminal prosecution, please contact the attorneys at the Leichter Law Firm for a consultation. 512-495-9995.
The Texas Medical Board has a new method of resolving outstanding investigations, courtesy of the 2011 legislative session- the Remedial Plan. If you are a physician with an investigation pending before the Medical Board, you may very well encounter the Remedial Plan. They are being offered frequently. In some cases that will be good news , but contrary to how Board staff may sell it, the Remedial Plan is not suited for everyone.
Let me give an overview of the Remedial Plan. The Board terms the Remedial Plan as a non-disciplinary order. It cannot be offered in instances where the complaint concerns a patient death, commission of a felony, or an instance where a physician becomes sexually, financially, or personally involved with a patient in an inappropriate manner. The Remedial Plan also cannot assess an administrative penalty, or revoke, suspend, limit or restrict a person’s license. Typically the Remedial Plans include continuing education and/or the requirement to take the Jurisprudence Exam. They also could include non-restrictive terms like a physician chart monitor, and they virtually always carry a $500 administration fee.
Despite the limitations on when a Remedial Plan can be offered, there are still many circumstances that qualify, and this is borne out in how frequently Board disciplinary panels are offering them. They are being offered before Informal Settlement Conferences (ISC) in an attempt to forgo the need to hold a hearing. They are also being offered at ISC’s in lieu of other discipline. This all sounds like good news. It is a “non-disciplinary” order after all. However, one corresponding trend that does concern me, as an attorney that is now encountering these Remedial Plans quite frequently, is that Panels are offering Remedial Plans in circumstances where they otherwise would have dismissed the case entirely. The Board Panels feel too comfortable offering the Remedial Plan because it is “non-disciplinary.” It seems the Board Panel can justify offering a Remedial Plan in instances where they could not otherwise justify disciplinary action.
To be clear, there are instances where a Remedial Plan should be seriously considered. The most obvious case is when the physician clearly did wrong, and some sort of action by the Board is assured. However, if there is a chance of the case being dismissal, the choice is not as clear. If you find yourself in such a situation, a lawyer experienced in administrative law should be able to help you determine which category you fall in.
But why should you give it a second thought if it is a “non-disciplinary” order? First, it is still a public order, and as the Board rules exist now, it will stay on your online public profile forever. Anyone who looks up your profile will be able to find it. Additionally, your name will still appear in the Board’s newsletter, albeit in a list, set apart from the disciplinary actions. Second, we do not know how insurance companies, employers, and credentialing boards will treat the Board’s “non-disciplinary” order. There is a chance that they will not view it as non-disciplinary, and may use it as a basis to impose their own discipline, or deny employment or certification. Frankly, it is too early to tell how the Remedial Plan will be treated by these entities.
Ultimately, you should put some serious thought into the ramifications of signing any public order with the Medical Board. If you are a physician and faced with the reality of going before the Texas Medical Board, or responding to a Remedial Plan offer, representation from an experienced Texas administrative law attorney may help. Please feel free to call the Leichter Law Firm for a free consultation regarding your case with the Texas Medical Board -512 495-9995.
Over the past several weeks there has been an onslaught of temporary suspensions by the Texas Medical Board and Texas State Board of Pharmacy targeting Houston area physicians and pharmacists. These emergency suspensions have all stemmed from the joint state and federal task force combing Harris County for the non-therapeutic prescribing and dispensing of medications commonly used to treat chronic pain: primarily hydrocodone, soma, xanax, and klonopin. Presently, there is no sign that this barrage of suspensions will let up.
Most of the physicians, pharmacists, and pharmacies which have been temporarily suspended seem to have been selected because they have already been arrested or otherwise targeted by the Harris County task force. Moreover, many of these individuals have appeared in local media coverage of the crackdown. Temporary suspensions by the Medical and Pharmacy Board only allow for short notice to the affected practitioner meaning the licensee has little chance to prepare their defense.
Moreover, it has been my firm's experience with such suspensions that the licensee faces an uphill battle as the deciding panel is made up of three Board members, not an independent judge unaffiliated with the prosecuting agency. Generally speaking, such Board panels accept Board Staff's claims and evidence at face value particularly when the practitioner has been arrested or the subject of media attention. The evidence presented in such hearings is usually the testimony of DEA agents or local law enforcement who have been involved in the case. Oftentimes, this involves testimony from an undercover officer who received pain medication from a physician after falsely telling the practitioner they suffer from chronic pain and undergoing an assessment in conformance with the Medical Board's rules on pain management. It is unclear how this constitutes non-therapeutic prescribing as the physician is essentially being lied to by the undercover agent. A Houston pharmacist was likewise recently suspended based merely on the number of pain prescriptions dispensed by their pharmacy as well as the accidental early filling of a single prescription presented by an undercover officer.
Again, the evidence presented is often flimsy at best and likely would not result in an emergency suspension were the matter before an independent administrative law judge. Simply because a licensee has been arrested does not mean the unproven charges will result in a criminal conviction. The unfortunate result of the current approach by the Medical and Pharmacy Board is the suspension of innocent pharmacists and physicians along with those knowingly engaged in the provision of illegitimate pain medication.
A temporary suspension will dramatically impact a practitioner's career and remain a part of their permanent licensure record. Additionally, if the licensee is a physician a report will be generated with the National Practitioner Data Bank and remain there indefinitely. Once a physician or pharmacist is temporarily suspended their only recourse to overturn the suspension is to appeal the case to District Court in Travis County, a process which is neither timely nor inexpensive.
Legally speaking, the temporary suspension of a physician's or pharmacist's license is meant to be an extraordinary remedy designed to immediately remove such individuals from practice due to an imminent danger to the public were they allowed to continue working. Regrettably, it appears as though many of the persons who have been temporarily suspended in the past few weeks have legitimate defenses to the charges levied by their respective Boards. Any physician or pharmacist who receives notice of a temporary suspension hearing should contact an attorney immediately as there will be little time to prepare and a negative result could cause irreparable harm to their career and reputation.
The Texas Medical Board receives about 6,000 complaints each year, and in an effort to resolve select “minor” violations of the Medical Practice Act (Act) more quickly, an administrative penalty order has been developed and put into use called the Fast-track Order (Fast-track).
Not every violation of the Act is eligible for a Fast-track. The Fast-track has been referred to as the speeding ticket of the Board’s disciplinary options. Its use is limited to a relatively small list of violations, including: failure to complete continuing medical education (CME) requirements; failure to change address with Board; and failure to provide copies of medical records in a timely manner upon request.
If Board staff determines that a licensee’s alleged violation is eligible for a Fast-track, they will send a brief notice of the allegations to the licensee with a synopsis of the allegations and the deadlines for response.
The licensee is given three choices:
- The first option is to plead no contest and pay the fine. Sometimes this can be an attractive outcome if the licensee inarguably violated the Act, and wants to save the time and money of even taking the case as far as an Informal Settlement Conference (ISC). A no-contest plea means that the Fast-track will be entered by the Board, and the licensee’s public profile will be updated to reflect the discipline. The order itself is a brief document, containing only a brief statement of the allegation, but its presence is a permanent mark on the licensee’s public profile.
- The second option the licensee is given is to respond in writing to the allegation. The licensee’s right to an ISC is thereby waived, and the written response is considered by the Board’s Disciplinary Process Review Committee (DPRC). DPRC will then either dismiss the case or impose the fast-track penalty without any further input from the licensee.
- The final option is to reject the fast-track order and proceed to an ISC, which is to say that the case would proceed through the regular disciplinary process. The licensee would be invited to attend an ISC and discuss the allegations with a Panel of Board representatives.
If the licensee chooses not to answer at all, the Board has the authority to impose the administrative penalty. This happens often if the Board does not have the licensee’s current contact information, and when the discrepancy is noticed by the licensee somewhere down the road, they find themselves mired in bureaucratic quicksand trying to straighten it out.
Ultimately, if you receive a Fast-Track, and you are faced with the prospect of choosing one of the above options, you should realize that each one of the above options has its variables to consider, whether it be the amount of time and money that will be spent, or the visibility of a given disciplinary outcome. If you have received a Fast-Track letter from the Board, it is in your best interests to consult with an attorney to best evaluate your options. The Leichter Law Firm has successfully defended many clients before the Board, and is mindful of the pitfalls of the Board’s disciplinary process. Do not hesitate to call us for a free consultation at (512) 495-9995.
Discipline at the Texas Medical Board (Board) is a complaint driven process- meaning that every investigation opened by the Board’s investigators results from the filing of a complaint. The Board receives roughly 6,000 complaints each year, and they come from various sources, including patients, subsequent providers, competitors, former employees, and even the Board itself. Essentially, anyone can file a complaint with the Board, and the Board is required by law to investigate it.
According to Board rule 178.4(c), the complainant’s identity and the complaint itself are expressly confidential as part of the Board’s investigative file, unless the complainant signs a waiver of their confidentiality. A complaint can, therefore, be filed against a physician without the physician knowing the identity of the complainant.
The anonymous complaint process unfortunately makes it easy for a bad-faith complainant to use the Medical Board’s disciplinary process to attack other physicians whether they are rivals to the complainant's practice or have a former employment relationship. Both in my own practice and through discussions with other attorneys, I have encountered other instances where a complaint appears to have originated from an insurer seeking to use the Board as leverage in a payment or coverage dispute with a physician. I have personally been involved in cases where an anonymous complaint originated from a disgruntled spouse. In any case, the Board's anonymous complaint process generally immunizes the complainant from scrutiny or consequences should a complaint be filed in bad faith. Additionally, without their identity, the targeted physician is often precluded from presenting clear evidence of bad-faith or motive on the part of the complainant. Moreover, because anonymous complaints frequently originate from persons with a medical background who are also familiar, sometimes intimately so, with a licensee's practice, they can be crafted in such a way to cause significant damage to the target physician.
The political process has thus far provided no relief from the anonymous complaints process. Two bills have been introduced in the Legislature to change the complaint process and make it more transparent. The Bills, House Bill 3816 introduced and presented to the 81st Legislature and House Bill 1013 presented to the 82nd, would have made it impossible for the Board to accept anonymous complaints. The Bills would also have provided physicians better protection from Board claims of inadequate documentation and would prohibit Board discipline for incidents that occurred more than 7 years ago and for documentation errors that did not endanger the patient. To date, neither Bill has been passed, and so the concerns about anonymous Board complaints continue.
If you have received a complaint letter or investigation letter from the Board, it is in your best interests to consult with an attorney to best evaluate your options. This is all the more so if you believe the complaint may have been filed in bad-faith as it has been my experience that these often come in a series with each subsequent complaint becoming increasingly difficult to address.
As a general rule, licensing Boards such as the Texas Medical Board, Texas Board of Nursing and Texas State Board of Pharmacy are prohibited from exceeding the powers granted to them by the Legislature. The Legislature passes enabling statutes that create the licensing Boards and circumscribe their jurisdiction. The Boards may then pass administrative rules expounding and filing in the blanks of areas which the Legislature has order them to regulate. These rules cannot conflict with the statute, however, and are, in fact, subordinate to it. Thus, if the Legislature did not give them the power to regulate a particular activity, the Boards generally cannot expand their jurisdiction to regulate that activity by adopting an administrative rule. Problems arise, however, when the statutes are imprecise or vague in limiting the Boards’ powers.
Given the multitude of laws instituted by our Legislators, imprecise and vague definitions are bound to crop up. Such is the case with the term “unprofessional conduct.” As an example, the Medical Practice Act allows the Texas Medical Board to discipline its licensees if they commit “unprofessional or dishonorable conduct that is likely to deceive or defraud the public, or injure the public.” Tex. Occ. Code 164.052(a)(5). Note that there need not be any actual harm done. While the statute goes on to give some guidance as to what conduct deceives or defrauds the public (Tex. Occ. Code 164.053) it gives us no definition of what constitutes unprofessional or dishonorable conduct that is likely to injure the public.
Similarly, the Texas Board of Nursing is allowed to discipline nurses for unprofessional or dishonorable conduct that, in the board’s opinion, is likely to deceive, defraud or injure a patient or the public. Tex. Occ. Code 301.452(b)(10). Likewise, the Texas State Board of Pharmacy can discipline its licensees for both unprofessional conduct and gross immorality. Tex. Occ. Code §§565.001(a)(2)-(3). Troublingly, the Legislature appears to have left it in the hands of the Pharmacy Board to determine the definition of unprofessional conduct and gross immorality.
How do the licensing Boards use this power? The Boards have frequently used this provision as a hook to discipline licensees over whom they would otherwise have no statutory power. For example, the Medical Board is explicitly allowed to discipline licensees for convicted misdemeanors if the misdemeanors can be related to their practice as a physician (Tex. Occ. Code § 53.021(a)(1)) or involve “moral turpitude” (Tex. Occ. Code § 164.051(a)(2)(B)). Moral turpitude is another vaguely defined term; it is generally implicated in crimes involving fraud or deceit but is otherwise difficult to characterize and apply. Regardless, by classifying other misdemeanors as “unprofessional conduct”, however, the boards can extend their powers beyond the limits set by the Legislature.
The Board of Nursing, which is subject to similar statutory restrictions, has labeled “unprofessional conduct” such misdemeanors as possession of an unlicensed firearm, criminal mischief, obstruction of a highway, and criminal trespass, none of which are a crime relating to the practice of nursing or classified as an offense of moral turpitude. I have also encountered cases where the Board was reluctant to license an individual or wished to impose discipline based on conduct which is not even criminal, such as a client’s former employment as a stripper or a person’s private conversations on an internet social networking site. Furthermore, I have seen multiple situations where a client is being pursued due to what is essentially an employment dispute, such as lying on an initial application, an area over which the Board involved likely has no jurisdiction.
In conclusion, licensing Boards frequently utilize this method as a means to expand their jurisdiction beyond their enabling statutes. “Unprofessional conduct” is used as a pretext to regulate licensees for activities that do not involve the licensed occupations at all. If you are facing an investigation or disciplinary matter before a state agency and feel the basis of their action has no relationship or bearing on your license or practice, you very well may be right and would be wise to contact an attorney familiar with the respective Board’s statutes and disciplinary process.
Texas Medical Board Moves Away from Rehabilitation Orders with Adoption of Texas Physician Health Program
Currently, physicians and physician assistants with a history of substance abuse, mental illness, or other medical conditions which could affect their ability to safely practice medicine have been eligible to receive a rehabilitation order from the Texas Medical Board. Pursuant to a set of specific criteria, physicians and PA’s with such issues are also frequently able to have such orders be confidential from the public and colleagues.
In line with general national trends in regards to medical licensing, this current arrangement is set for a major change next year due to the passage of Senate Bill No. 292 by the Texas Legislature. This bill adds Section 167 to the Medical Practice Act thereby establishing the Texas Physician Health Program (TPHP) as a replacement for the old regime of rehabilitation orders administered and monitored through the Medical Board. Somewhat similar to the Professional Recovery Network of the Texas State Board of Pharmacy and Texas Dental Board, the Texas Physician Health Program is designed to become the first stop for impaired and ill physicians. Like the older rehabilitation order system, the Physician Health Program would be directed towards impaired and mentally ill physicians, although it would still also cover other licensees with rarer medical conditions which could affect their safe practice.
Once the TPHP springs into existence on January 1st, 2010, a physician can now be referred into the Physician Health Program in lieu of an investigation and disciplinary action by the Medical Board. Virtually anyone can refer a physician into the Program, including the Board, a hospital, another physician, a physician health and rehabilitation committee, or a concerned member of the public. Importantly the new law also notes that the Physician Health Program is not allowed to accept a referral which also involves a violation of the standard of care as a result of the use of drugs or alcohol or a boundary violation with a patient or their family. Also significant, the Medical Board now has the authority to make the granting of an initial license contingent on the physician’s agreement to enroll and participate in TPHP.
Similar to the current rehabilitation orders, a referral to TPHP and participation therein remains completely confidential unless the physician or physician assistant leaves the program, fails to adhere to their participation agreement, or otherwise is determined to pose a risk to patient safety by Program Staff. In such an event, the Physician Health Program will forward the licensee’s file to the Medical Board and the TMB will likely open a disciplinary investigation.
What is still left unclear is the process when a licensee is referred by a non-Board individual to the Physician Health Program for an impairment or mental health issue that does not involve a standard of care violation and that physician decides not to enroll in the Program. It has been my experience serving as an attorney in cases involving PRN and the Board of Nursing’s TPAPN program that the peer assistance entity is then required to forward the matter to the Board.
In the same vein, it is also unclear as to what extent the physician and physician assistant will be notified that they can hire an attorney to represent them before the Texas Physician Health Program. As it stands now, basic due process concerns require that the Medical Board inform physicians of their right to legal representation whenever they open an investigation. This is a potential issue as based on my dealings with PRN and TPAPN, a peer assistance program like TPHP, while having nothing but good intentions, is unfortunately often beholden to their governing Board. In such situations the threat is that they could become a mere instrument of the Board collecting potential damaging evidence and admissions from the physician while acting under the guise of being an independent entity.
Nevertheless, I am cautiously optimistic as I believe if run well, the Texas Physician Health Program has the potential to be a great resource for impaired and mentally ill physicians and consequently their patients and the public at large. It remains to be seen, however, how the Program performs once it launches into action at the start of the new year.
Within the past three weeks my firm has represented two physicians whose licenses had been summarily revoked by the Texas Medical Board pursuant to alleged violations of their Agreed Orders. In both cases the Medical Board had failed to follow proper procedure and adhere to the terms of each physician’s Agreed Order prior to revoking their registrations.
The first case involved a physician on a long-standing monitoring order. The Automatic Revocation Order reneged his license on the stated bases that he had failed to continue timely payments with the Board’s drug testing company and he had submitted several “dilute negative” specimens. First and of most importance, this physician was never provided proper notice of the informal show compliance proceeding and accordingly never showed up at the hearing, directly resulting in the revocation. The notice of hearing had been sent to the physician’s old address despite the fact that he had previously filed the appropriate change of address form with his compliance officer.
Furthermore, the specific terms of his Agreed Order did not allow the Texas Medical Board to revoke his license for either late payments to the drug testing company or submitting dilute negative samples. In summary, not only did he not receive notice of the show compliance hearing, but the stated reasons for his revocation were illegal under his existing Board Order. Thankfully due to the quick intervention of my firm, the Executive Director of the Medical Board agreed to overturn the revocation and set the matter for a new show compliance proceeding. Unfortunately, my client had in the interim already lost his job and been subject to a public HIPDB report noting the revocation.
The second physician was revoked on the grounds that he had not kept up with his CME requirements. Again, this doctor was not given proper notice that the Medical Board was considering cancelling his registration until less than a month before the deadline date and moreover this was conveyed in an ambiguous letter discussing other matters. Understandably, the physician sent in a letter to the Board letting them know that he was presently enrolled in a Masters of Health Administration program and accordingly would be unable to complete the CME within such a short timeframe.
Apparently disregarding the letter, the Medical Board went ahead and cancelled his registration. The physician subsequently hired me and I was able to have the cancellation overturned through a letter to the Board’s Executive Director. The Board also agreed to give him additional time to complete the CME.
I think the experiences of these two clients demonstrate that timely intervention by counsel can make a huge difference and greatly mitigate the negative impact of an adverse Board action. Any physician facing a Board issue should seriously consider conferring with an experienced attorney so that they can head off such situations before they can harm their practice and reputation.
Recent rule changes by the Texas Medical Board will be taking effect on June 19th. Licensed doctors and licensed physicians in the state of Texas ought to be aware of these changes. The attorneys of the Leichter Law Office has the experience and expertise necessary to assist medical licensees or medical license applicants in these and other issues relating to your medical license.
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22 Tex. Admin. Code § 173.1(b)(1) (2009) (Tex. Med. Board, Profile Contents)
(a) The Texas Medical Board (the “board”) shall develop and make available to the public a comprehensive profile of each licensed physician electronically via the Internet or in paper format upon request.
(b) The profile of each licensed physician shall contain the following information listed in paragraphs (1) – (27) of thus subsection:
(1) full name as the physician is licensed;
(2) – (27) (No change.)
Subsection (b)(1) previously read “full name as the physician requests that it be published;” with this rule change in effect the physician’s name will be published as it reads on the license, not when the physician requests it be published.
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22 Tex. Admin. Code § 190.8(1)(L)(iii) (2009) (Tex. Med. Board, Violation Guidelines)
Notwithstanding the provisions of this subparagraph, establishing a professional relationship is not required for a physician to prescribe medications for sexually transmitted diseases for partners of the physician's established patient, if the physician determines that the patient may have been infected with a sexually transmitted disease.
This new subsection will be amended to the current § 190.8(1)(L). A physician need not establish a professional relationship with the partner of a patient to prescribe medications for STDs if the patient with whom the physician has a professional relationship has the STD. This new subsection seems to allow the physician greater flexibility in controlling the spread of STDs quickly and effectively.
Nevertheless, the Leichter Law Firm recommends being aware of the partner’s medical history and relationship with your patient in order to protect yourself and your license to practice in Texas.
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Whether registering your medical license with the Texas Medical Board, defending yourself in an investigation before the Texas Medical Board, or concerned that your medical license or practice might be in danger, you will need a competent and experienced medical license attorney to assist you. Going it alone against the Texas Medical Board risks your medical license and your livelihood. The attorneys at the Leichter Law Firm have the experience and expertise in dealing with the Texas Medical Board and assisting doctors and physicians in all of their medical licensure needs.
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.
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.
When a physician is involved in a disciplinary proceeding with the Texas Medical Board, Department of Public Safety, or other governmental entity that will likely result in some variety of Board order, it is critically important to carefully craft the final agreement so as to avoid trouble down the line. All provider networks have standing policies regarding the credentialing of physicians who have been sanctioned by a state agency. Many of them can be particularly harsh and can bar a physician from inclusion in their network if they have an active disciplinary order.
Frequently, the physician’s well-meaning but uninformed attorney will obtain, and advise their client to accept, a disciplinary order that imposes a relatively minor sanction. Later, the doctor, as required, discloses the occurrence of the Board Order on their credentialing renewal applications. The Provider networks will then deny re-credentialing on the basis of the disciplinary order. The physician is then put in the difficult position of being fully licensed to practice yet suddenly unable to see a potentially broad section of their former patients. Absence of credentialing with key networks can also jeopardize a physician’s position in a group practice or institutional setting.
An experienced attorney with a full understanding of the possible implications of any given outcome can work from the start with the physician and the Texas Medical Board with an eye to ensuring a result that will not damage that doctor’s standing within provider networks and place them in a good position to obtain credentialing with new networks in the future.
Outside of an outright dismissal, this can oftentimes be done through an order that is remedial, not disciplinary in nature. Such an order could provide for additional CME hours or the payment of an administrative penalty. This can be particularly appropriate where the allegations relate to inadequate record-keeping, over-billing, or a minor violation of a standing Agreed Order. An added benefit of such an agreement is that they typically terminate as soon as the penalty is paid or the extra CME hours are completed removing them from the purview of many provider networks’ policies excluding physician’s who are under active Board Orders. Such an agreement also does not involve any restrictions on a physician’s practice or prescribing authority, another plus both on its own and when dealing with insurance networks.
Another option may be to seek a confidential rehabilitative order. This often applies to physicians with chemical dependency or intemperate use issues. Such a confidential order remains secret as long as the physician remains in compliance and does not have to be reported to the National Practitioner Data Bank or disclosed to provider networks.
Either of the above choices typically requires careful preparation of the client and their case for presentation to the Medical Board. It may involve the gathering of extensive mitigating and remedial evidence. The key point is to convince the Board that the licensee has recognized and accepted responsibility for their error and has taken the remedial steps necessary to prevent any reoccurrence of the underlying allegations such that a minor order would be warranted in their case.
This difficult task is best accomplished by an attorney familiar with the Texas Medical Board and its procedures and who is also aware of the potential consequences a given order can have on a physician’s credentialing status in provider networks. Trying for the best resolution rather than a merely acceptable one will pay off later by avoiding the additional stress, attorney’s fees, and lost patients that travel with credentialing denials.
In recent years, I have witnessed an increase in the recreational use of dextromethorphan among Texas doctors. An ingredient found in many common cold medicines, dextromethorphan acts as an effective cough suppressant by operating as a narcotic analgesic thereby relieving upper respitory irritation. When administered at higher, non-therapeutic doses, however, the drug causes dissociative hallucinogenic effects that have been compared to those caused by ketamine and PCP.
At a lower recreational dose, “dex” can lead to a mild euphoria. At higher levels the effects include an intense euphoria, vivid imagination, and closed-eyed hallucinations. Taken to extreme levels the user will experience complete alterations in consciousness which can even extend to temporary psychosis. While physical addiction is rare, psychological addiction is likely, and long-term or intense use can cause permanent damage to chemical receptors in the brain.
Increased awareness of dextromethorphan abuse has caused most sellers of cough medicines containing the drug to move it behind the counter. This obstacle is less of a challenge to physicians who have ready access to prescription versions of the same medicines. One of the most troubling aspects of this trend is the fact that the drug screens used by the Texas Medical Board will not detect dextromethorphan. This in part probably explains its popularity among chemically dependent Texas doctors. While dextromethorphan is not currently included in the Controlled Substances Act this could easily change as awareness of its use as a recreational drug spreads.
Unfortunately, use of dextromethorphan and its attendant hallucinogenic effects present serious practice risks and potentially imperil patient safety. Licensees should also be aware that a positive drug screen is not needed for the Texas Medical Board to pursue disciplinary action. Many of the complaints commonly received by my firm consist of nothing more than an allegation that the doctor “seemed confused and out of it” or “like he was drunk” while on duty. It should also be obvious that the Board will vigorously pursue any allegation that a doctor is abusing their prescriptive authority to obtain drugs for recreational use.
Any doctor being investigated or prosecuted for dextromethorphan use should contact an attorney with experience before the Texas Medical Board so that they are aware of their options. A common course of action is to have the doctor evaluated by an independent expert in addiction to determine whether or not they are chemically dependent. If so, then self-referral to a quality drug rehabilitation center is often the best choice for both the doctor and for reaching a beneficial agreement with the TMB. As in all cases, disciplinary charges based on intemperate use and/or abuse of prescriptive authority have their own set of complex issues that is typically better handled by an attorney with experience before the Medical Board.
In response to mounting criticism from the public and medical community, the Texas Medical Board has adopted a new fast-track procedure available for certain violations of the Medical Practice Act and Board Rules. The new system bypasses the standard procedure where a physician would be investigated for 180 days followed by another potential 180 days of litigation that could then culminate in a full hearing before the Board or even a contested case proceeding before the State Office of Administrative Hearings. The problem was that this lengthy, stressful, and potentially expensive process applied to every alleged violation no matter how minor.
Under the new regime licensees accused of a violation that is only punishable by a fine and that is not accompanied by any additional charges have two options: They may either agree to the charges and simply pay the fine or dispute the charge in a writing which will be reviewed by a board committee. The third option is to opt out of the fast-track system altogether and undergo the traditional and more intensive investigation and hearing procedure.
Violations eligible for fast-track consideration include but are not limited to:
- failure to provide medical records in a timely manner;
- failure to file a change of address with the Board;
- failure to sign a death certificate in a timely manner; and
- failure to obtain required continuing medical education.
A licensee can choose to fast-track an investigation up to three times, but only once for a given violation. Also note that allegations of inadequate patient care or unprofessional conduct are not fast-track eligible.
Texas physicians should be aware that although the new procedure can be convenient and cost-saving, any sanction imposed will still appear on their record and could have real consequences to their practice. Any licensee who is unsure of the potential impact an admission of guilt could have on their practice or who simply does not feel they have done anything warranting an administrative sanction would still be well advised to consult an attorney experienced in representation before the Texas Medical Board.
Oftentimes a physician staring down a licensing action before the Texas Medical Board faces not one, but two threats to their medical practice. If the doctor depends on privileges to practice at the local hospital, the alleged misconduct that sparked the TMB investigation may also lead to an inquiry by the hospital’s peer review committee. This relationship is a two-way street as under state law a peer review committee must report to the TMB the results and circumstances of any peer review that adversely affects a privileged physician. Such a committee must also report when a physician surrenders their privileges in lieu of subjecting themselves to a peer review. See §§ 160.002 and 164.051(a)(7) of the Texas Medical Practice Act. Upon receipt of this information, the Medical Board will start their own investigation which will very likely lead to a licensing action. This is a complex area of the law dealing with issues related to state medical licensing, privileges, hospital by-laws, and confidentiality to name a few. It readily illustrates the house of cards nature of the legal issues surrounding medical practice: remove one card and the rest can quickly come tumbling down.
The Medical Practice Act generally treats peer review records as strictly confidential and only available after the physician waives privilege, however, the Texas Medical Board, along with other state licensing boards and certain government agencies, is legally entitled to the records of a negative / adverse peer review. § 160.007. Yet, the Act still requires the TMB and the State Office of Administrative Hearings to maintain the strict confidentiality of such records. § 160.006(d).
The peer review process itself is governed by each individual hospital’s set of by-laws, a complicated set of rules setting out the grounds for when a physician’s privileges can be suspended or revoked and outlining the procedures which the committee and hospital must follow. Most by-laws provide that an attorney will be on hand to provide the committee with any needed legal advice. Furthermore, another lawyer may be responsible for presenting the case in favor of restricting, terminating or suspending the physician’s privileges or scope of practice. The physician is also allowed to retain their own attorney to represent their interests before the committee.
Because the peer review committee is generally made up of physicians and administrators from the hospital and local area, one of the dangers of this procedure is that it has the potential of being misused by a disgruntled or opportunistic colleague. A few of the reported cases have included particularly egregious situations where rivals have inappropriately used the review as a platform for an inquisition against every real or perceived past mistake of the doctor. Texas statutory and case law rightly recognizes this danger and provides powerful civil penalties against fraudulent peer review in order to protect the physician. As a result, most hospitals are advised to ensure that all or nearly all of their committee membership consists of non-local physicians who do not compete with the physician under review so as to ensure a disinterested process.
The interplay between the Texas Medical Practice Act and a hospital’s by-laws can be complex. On its own a negative / adverse peer review action can trigger the disciplinary process at the Texas Medical Board while much of the conduct that can beget a peer review can also be grounds for an investigation and disciplinary sanction at the TMB. See § 164.051(a)(7). A negative result under either can be ruinous to a physician. Potential consequences include the loss or restriction of the physician’s state medical license, their privilege to practice at a particular medical institution and the initiation of review procedures by provider networks. The likelihood of a positive outcome is best secured at the hands of an attorney with ample background in each environment who is knowledgeable of the likely impact a given result in one will have on the other.
The resignation last week of Keith Miller, MD, a 2003 Perry appointee to the Texas Medical Board, has sparked an outpouring of relief and further recriminations from the beleaguered doctor’s many critics.[i] A longtime member of the TMB’s disciplinary committee, Dr. Miller claims his resignation is due to the enactment of a rule law barring Board members from serving as expert witnesses in medical malpractice cases. Dr. Miller, who has a long history of serving as a plaintiff’s expert in such cases, believes his resignation was necessary to prevent any appearance of a conflict of interest.[ii]
Opponents of Dr. Miller have alleged that he has exploited his position on the Enforcement Committee, which has the power to revoke and restrict a physician’s state medical license, in his role as an expert witness.[iii] They claim his involvement in disciplining doctor’s who have violated the Medical Practice Act, including standard of care allegations, at the same time that he has maintained close connections with the plaintiff’s bar and served as an expert, has placed a cloud of impropriety on the Board. In fact opponents could point to his resignation in response to a new Board Rule addressed to precisely this issue as vindication of this claim.
However, critics of Dr. Miller’s tenure have further accused him of improperly using his position on the TMB to transform the Enforcement Committee into a virtual arm of the insurance industry.[iv] Board Rules allow anonymous complaints to be made to the TMB which can then serve as the basis of a disciplinary action. Aggrieved physicians have alleged that insurance providers who are dissatisfied with the level of care provided to a covered patient have used such anonymous complaints as a way to punish doctors and maintain low cost levels. Such physicians point out that it is not actually the standard of care which motivates these anonymous complaints but rather a doctor’s decision to supply care whose cost exceeds insurance company guidelines and therefore hurt profits. These maligned anonymous complaints originate from the insurance providers and not the actual patients. In fact the patients whose care is supposedly at issue are frequently surprised when notified of the pending disciplinary action and often testify in favor of their doctor.
However, critics of Dr. Miller’s tenure have further accused him of improperly using his position on the TMB to transform the Enforcement Committee into a virtual arm of the insurance industry.[i] Board Rules allow anonymous complaints to be made to the TMB which can then serve as the basis of a disciplinary action. Aggrieved physicians have alleged that insurance providers who are dissatisfied with the level of care provided to a covered patient have used such anonymous complaints as a way to punish doctors and maintain low cost levels. Such physicians point out that it is not actually the standard of care which motivates these anonymous complaints but rather a doctor’s decision to supply care whose cost exceeds insurance company guidelines and therefore hurt profits. These maligned anonymous complaints originate from the insurance providers and not the actual patients. In fact the patients whose care is supposedly at issue are frequently surprised when notified of the pending disciplinary action and often testify in favor of their doctor.
Miller’s opponents specifically point to his position on the Texas Medical Advisory Committee of Blue Cross Blue Shield as evidence of his close ties with insurance providers. For instance, Dr. Steven Holtze president of the Project for Freedom of Access to Natural Solutions has alleged that Dr. Miller has used his position to sanction practitioners of environmental medicine, an area of practice disfavored by some insurance providers. This included disciplinary proceedings against Dr. William Rea, the founder of the Environmental Health Center in Dallas.[ii]
The Texas Medical Board initiated their investigation into Dr. Rea following an anonymous complaint which was later found to have been made by the insurance provider for five of his patients. Even though eighteen expert witnesses and all five patients testified in favor of Dr. Rea, the TMB, relying on a single anonymous expert witness, still ruled against the doctor. At the proceeding, Dr. Miller is alleged to have explicitly disregarded all of Dr. Rea’s rebuttal evidence and assured him that he was going to get his license no matter what.
Other cases pointed to as exemplars of the “Star Chamber” style of the Enforcement Committee during Dr. Miller’s tenure include the disciplinary proceeding of Dr. Chris Kuhne.[iii] There the Board completely ignored an unfavorable decision of the Honorable Administrative Law Judge Wendy Harvel and imposed harsh sanctions for a minor billing error concerning charges for copied of medical records.
It should be noted that any non-anonymous disciplinary sanction no matter how minor will virtually always result in the effected doctor losing access to insurance provider networks and hospital privileges. The cost involved in such a loss, not too mention the often large legal bills required to defend such a case, can be financially devastating. These severe consequences have led many to express a sigh of relief that the Keith Miller era has finally come to a close.
Many doctors consider the possibility of a disciplinary action based on inadequate or improperly kept medical records to be remote. Yet, the Texas Medical Board will oftentimes use a complaint based on other grounds, such as an alleged standard / quality of care violation, as an opportunity to thoroughly investigate a licensee’s compliance with Board Rules concerning the maintenance of medical records. Even if the original complaint is found baseless, the TMB has the right to pursue disciplinary sanctions for any other violations found during their investigation, and in a quality of care case this investigation will certainly include a thorough review of medical records.
Under the Texas Administrative Code, the Texas Medical Board has adopted official agency rules regarding the proper maintenance of medical records. For example, § 165.1 contains numerous mandatory guidelines concerning the maintenance of “adequate medical records.” Title 22 Texas Administrative Code § 165.1. Moreover, pursuant to the Medical Practice Act, the TMB has the same authority to pursue the full range of disciplinary sanctions for non-compliance with this provision as it does for any other Rule. Texas Occupations Code § 164.051(a)(3).
When the Board initiates an investigation into a complaint, they are searching for any breach of either the Texas Medical Practice Act or TMB Agency Rules, not only for evidence regarding the original allegations. Unsurprisingly this investigation will include a searching review of medical records completed and maintained by the physician. This is all the more true with quality of care cases where a final determination will necessarily involve an expert review(s) of the relevant records. At this point the Board may decide that no clinical breach in the quality of care occurred, however, they can, and frequently will, next initiate a licensure action regarding improper medical documentation. The Board will then pursue a sanction such as placing the doctor’s license on probationary status complete with onerous conditions that can remain in force for years. Further, any disciplinary action will likely remain part of the licensee’s record and could trigger mandatory reporting requirements to other state licensure boards, the National Practitioner’s Database, and the doctor’s place of practice. Texas doctors need to be aware of this stepping-stone potential and its latent consequences.
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:
- the licensee or applicant suffers from an addiction caused by medical treatment;
- 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;
- a court has determined that the licensee or applicant is of an unsound mind;
- the licensee has a physical or mental impairment as determined by an examination; or
- 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.
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.
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.
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.