Texas Physician Health Program - When It Is Not Appropriate

In 2010, the Texas Legislature created the Texas Physician Health Program (PHP), effectively shifting the oversight of licensed Texas physicians with substance abuse disorders and mental illness from the Texas Medical Board to a program uniquely tailored to monitor those issues. Responsible in part for the success of this idea is the sentiment that physicians generally do not like dealing with the Medical Board, and are not keen on self-reporting substance abuse issues to the Medical Board or being candid about mental health problems. The PHP, while not entirely independent from the Medical Board (PHP is administratively linked to the TMB), was intended to provide a more attractive option for those physicians who needed the oversight and the help that PHP would provide. In the 2+ years since its creation, the PHP has largely been successful, and certainly is still preferable to the Medical Board’s investigative and disciplinary process in many instances. However, there are certain types of “substance-related” cases in which a referral to the PHP is not appropriate, and a physician would be better served to hire an experienced professional license defense attorney and take the case to the Medical Board, seeking dismissal. Simply put, a one-time arrest and conviction for DWI or Public Intoxication does not justify a long-term PHP contract aimed at facilitating recovery. 

The PHP is not typically appropriate in instances where the physician has had a one-time substance-related arrest, but no substance abuse diagnosis. However, we frequently encounter physicians who have been arrested for one-time instances of DWI or public intoxication and are subsequently offered participation in the PHP in lieu of Medical Board action. Oftentimes, the offer of PHP contract will have been given before the DWI case is even criminally adjudicated. For a physician that does not seek the proper legal guidance, that one-time DWI arrest will result in a 5-year PHP contract, where the physician is subjected to terms that likely include substance abuse treatment, Alcoholics Anonymous attendance, drug screening, and possibly practice restrictions. While a confidential PHP contract that offers that level of structure is probably appropriate for a physician with a diagnosed substance use disorder, it is not appropriate for the physician who made a highly regrettable, one-time decision to drink and drive. Additionally, it is very difficult for anyone to stay compliant with a 5-year PHP contract when there is no actual substance abuse disorder- the terms of the order start to look very arbitrary. Moreover, there will be lifelong consequences with credentialing and applications for privileges. 

The alternative to a PHP contract is the perceived threat that the physician’s case will be forwarded to the Medical Board for investigation and possible disciplinary action. Contrary to common misperceptions, that is often the preferable scenario in this instance. The Medical Board does not have the power to discipline a physician for a one-time arrest and conviction of DWI, and as long as that DWI does not lead to evidence that the physician may have a substance abuse problem, the Medical Board must dismiss the case (Tex. Occ. Code § 164.051(a)(2)). The physician will probably be investigated and invited to participate in an Informal Settlement Conference with the TMB, but an experienced administrative law attorney should be able to guide them through the process without receipt of any discipline. The professional license defense attorneys of the Leichter Law Firm have been very successful in getting these cases dismissed.

If you are a physician, physician assistant, or other licensee of the Texas Medical Board, and you have been offered a PHP participation contract in response to a one-time substance-related arrest, do not hesitate to contact the experienced administrative law attorneys of the Leichter Law Firm. Even if you have not yet been contacted by the TMB or the PHP regarding your substance-related arrest, it is advisable to contact us at 512-495-9995 for a free consultation.       

Texas Board of Nursing Implements New Corrective Action Procedure

 

The Texas Board of Nursing has recently created and implemented a new, confidential procedure in which to resolve disciplinary investigations. Typically, the Nursing Practice Act limits the Board’s discretion to resolve a case through anything other than a public Order. In a welcome innovation, the Board now has the authority to settle a restricted set of cases involving minor violations of the Nursing Practice Act through a confidential, non-disciplinary corrective action procedure.

Eligibility for a corrective action plan is limited and at the sole discretion of the Nursing Board’s Executive Director. A nurse may be eligible to have their case resolved through a  corrective action proceeding if this is the first time they are being charged with one of the following violations:

  • Practice on a delinquent (expired) license for more than six months but less than one year;
  • Failure to comply with continuing competency requirements;
  • Failure to verify licensure/credentials of person for whom nurse is administratively  responsible;
  • Failure to provide complete and accurate answers to the Board, your employers, or potential employers about matters like your employment history, licensure history, or criminal history;
  • Failure to comply with Board requirements for change of name/address;
  • Failure to develop, maintain, and implement a peer review plan according to peer review requirements; and
  • Failure of an advanced practice registered nurse to register for prescriptive authority in an additional role and population focus area.

See 22 Tex. Admin. Code § 213.32(2)

There are several benefits to receiving a corrective action plan as opposed to a normal disciplinary order. These include:

A nurse is typically ineligible for a corrective action plan if they have committed more than one of the violations listed above. Id. at § 213.32(3). Moreover, if a case has already progressed to a contested case hearing at the State Office of Administrative Hearings, the Executive Director no longer possess the discretion to resolve a matter through corrective action.

  1. Not Disciplinary Action: Corrective Action is not considered disciplinary action. 22 Tex. Admin. Code § 213.32(1);
  2. Limited Penalty: The penalty may only be a fine, remedial education, or any combination thereof. See Tex. Occ. § 301.652(a)(1). Should a fine be imposed the amount for first time offenders is $500. 22 Tex. Admin. Code § 213.32(3). Hence a nurse doesn’t have to worry about having their license revoked or suspended or being subjected to a period of monitoring by the Board;
  3.  Finality: Once the nurse accepts the corrective action the case is closed. Tex. Occ. Code § 301.655(a);
  4. Greater Confidentiality: The corrective action is not public information unlike an agreed order or a formal hearing. Tex. Occ. Code § 301.652. As a result it is not subject to public disclosure, does not appear in the Board’s Newsletter, nor is it reported to the Healthcare Integrity and Protection Databank;
  5. Non-Admission of Guilt: A person’s acceptance of corrective action does not constitute an admission of a violation but only constitutes a plea of nolo contendere. Tex. Occ. Code § 301.657. However, if the board imposes a sanction on the person for a subsequent violation then it may treat a person’s acceptance of corrective action as an admission of a violation. Id.

It is important to note that the Legislature has included a provision within the authorizing statute requiring that the nurse accept an offer of corrective action within twenty days of receiving the proposed resolution from the Board, otherwise the Executive Director will have to pursue the complaint via the normal investigation process which could end with a public disciplinary action. Tex. Occ. Code §§ 301.654, 301.655.

As an attorney who represents numerous nurses before the Texas Board of Nursing each year, I view this as a positive initiative which should prevent relatively minor disciplinary issues from resulting in a potentially embarrassing public order. In fact, if anything, I feel the Board of Nursing could benefit from even greater authority to resolve cases through the kind of confidential order/process that is available to other state licensing entities such as the Texas State Board of Pharmacy and the Texas Medical Board through the new Physician Health Program.

The corrective action procedure has been especially helpful in my own practice for cases involving a nurse’s isolated failure to disclose minor criminal history on a licensure or renewal application. In the past, this could only be resolved through a public remedial education order which would remain on a nurse’s record indefinitely and be published in the Board’s Newsletter.

Any nurse with an active investigation with the Texas Board of Nursing would be well advised to consult with an attorney as to whether or not their case may be eligible for resolution through a corrective action plan. As stated above, this is an opportunity which can disappear once a case has proceeded to an advanced stage leaving a nurse with a limited choice between either litigating their case to its conclusion or accepting a public disciplinary order even if the Board’s allegations are of a de minis character.

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. 

The Texas Medical Board, Agreed Orders, and Insurance Provider Networks

 

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.

  

What is a Confidential Rehabilitation Order?

In lieu of public discipline, the Texas Medical Board has the option of offering a Confidential Rehabilitation Order (Private Order) to a physician who suffers from certain drug or alcohol related problems and/or mental health problems or disorders. Outlined under Title 22, Section 180.1 of the Texas Administrative Code, the purpose of an order is to create an incentive for a licensee or applicant to self-report and seek early assistance / treatment, thereby avoiding any harm to the public due to the deterioration of the physician’s ability to practice medicine. Successful completion of a Confidential Rehabilitation Order serves as an alternative to a public disciplinary order which must be reported to the National Practitioner Databank and can have adverse effects on a medical doctor’s ability to practice. A Private Order is Non-Public so there is no way the public, prospective employer’s or other health care entities should know that the physician’s medical license is subject to a Board Order.

The regulatory guidelines regarding who is eligible and under what circumstances a Confidential Rehabilitation Order can be issued are complex. An experienced attorney can help guide a physician through this process, accumulate supporting documentation, and ensure the licensee does not make a decision that will make them ineligible for a private order.

The issuance of a Confidential Rehabilitation Order is at the sole discretion of the Board. Under the Board’s rules, Staff and the Board may consider issuing a private order when:

  1. the licensee or applicant suffers from an addiction caused by medical treatment;
  2. the licensee or applicant self-reports intemperate use of drugs or alcohol and has not been the subject of a previous Board order related to substance abuse;
  3. a court has determined that the licensee or applicant is of an unsound mind;
  4. the licensee has a physical or mental impairment as determined by an examination; or
  5. a licensee or applicant admits to suffering from an illness or a physical or mental condition that limits or prevents the person’s practice of medicine with reasonable skill and safety.  
Title 22 Texas Administrative Code § 180.1(c).

In deciding whether to offer a confidential order, the Staff & the Board will weigh several factors. The Board will not grant an order absent a showing of good cause if either the physician has been found guilty, pled guilty, or received deferred adjudication of any felony or misdemeanor related to the intemperate use of drugs or alcohol. The same applies if the licensee or applicants’ intemperate use led to a violation of Sections 481 or 483 of the Texas Health and Safety Code or of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Whether the physician’s intemperate use led to patient harm, any prior disciplinary or criminal history, and any improper self-prescription or treatment, will also be considered and may pose an absolute bar from an offer of a Non-Public Confidential Rehabilitation Order. These matters are often won or lost based on the proper showing of physical documentary evidence, legal reasoning and most importantly the physician’s well thought out and planned presentation to the Board.

Physicians are encouraged to provide evidence and documentation supportive of a Private Order such as proof of rehabilitative potential, a clinical diagnosis of a physical or DSM IV Psychiatric Disorder along with supportive medical records, steps taken by the licensee to prevent future harm to the public, and a proposed treatment and monitoring program. Doctors who self-report intemperate use must provide thorough information on what, when, where, and to what extent the substances were used along with any prior history of substance abuse treatment. To be effective, a self-report must be given within five years from the last commission of intemperate use and be submitted prior to the Board receiving a complaint regarding the physician’s intemperate use. A lawyer can greatly assist a physician in assembling and effectively presenting these documents.

Finally, in considering whether to offer a Confidential Rehabilitation Order, the Board Staff will invite the physician to an Informal Show Compliance and Settlement Conference. (ISC) There the Board’s attorney will present the allegations to the Staff who will then ask the licensee questions. If the licensee has retained counsel, their attorney will also have an opportunity to speak to the Staff. Then, the Board’s panel members will decide whether to offer the physician a Confidential Rehabilitative Order which they may then accept or reject. If the licensee accepts the order and later the Board determines that they have violated its terms, the rehabilitation order may become public and the Board may take additional disciplinary action. Successful completion can prevent further disciplinary action and ensure that the order remains confidential.