AAPS Files Federal Lawsuit Against the Texas Medical Board
In late December of last year, the Association of American Physicians and Surgeons filed a federal lawsuit against the Texas Medical Board seeking various injunctive and declaratory relief against what it characterizes as the abusive practices of the Board. The AAPS complaint contains numerous allegations running the gamut from Board manipulation of the anonymous complaint process, a conflict of interest by the former head of the disciplinary committee, an ongoing policy of arbitrarily rejecting the recommendations of Administrative Law Judges, breaches of confidentiality during the disciplinary review process, and Board retaliation against physician criticism.
In a press release, Executive Director of the AAPS, Jane M. Orient stated that the AAPS felt compelled to file the lawsuit on behalf of its Texas members given that individual physicians were too afraid of possible TMB retaliation to take action on their own. The AAPS identifies itself as a non-profit entity with thousands of members throughout the country, including Texas, dedicated to preserving the traditional doctor-patient relationship and effective medicine. One of the organization’s overriding purposes is identified in their complaint as the protection of its members “from arbitrary and unlawful government action” such as that alleged to have been perpetrated by the TMB.
A central allegation of the complaint claims that Texas Medical Board President Roberta Kalafut actively manipulated the anonymous complaint process to harass and discipline physicians, including some of her Abilene competitors. According to the pleadings, Mrs. Kalafut had her husband file the anonymous complaints which she then ensured were actively pursued by the Board. Mrs. Kalafut has responded to the press by stating that this claim is completely untrue, noting that none of the anonymous complaints which led to disciplinary action came from Abilene. The AAPS complaint also targets outside abuse of the anonymous complaint process. It alleges that a New York insurance company arranged to have an anonymous complaint filed against a Texas doctor who had treated five of its insured members, who were all pleased with their treatment, so as to avoid paying their costs. The suit seeks an injunction against future receipt of anonymous complaints and a declaratory judgment that such complaints violate a physician’s due process rights under color of state law.
The second main allegation involves Keith Miller’s tenure as Chairman of the TMB’s Disciplinary Process Review Committee, a topic I have previously blogged about. Mr. Miller resigned in the fall of last year amid criticism of his continued position as disciplinary chairman while he simultaneously served as a plaintiff’s expert witness in scores of medical malpractice cases throughout Texas. The complaint points out this conflict of interest and Board officials’, such as President Kalafut, admitted awareness of it as reason for the federal court to compel the reopening of the disciplinary cases heard by Miller.
The final primary allegation of the AAPS involves the TMB’s arbitrary rejection of negative administrative rulings. The complaint itself points out a case where the TMB sought a disciplinary sanction against a doctor’s license who had requested, as per his hospital’s standard rate, that a patient pay $81 dollars for a copy of her medical records. In response to the patient’s complaint the Board’s disciplinary committee, headed by Keith Miller, demanded that the doctor pay a $1000 fine as part of a sanction that would be reported to the National Practitioner’s Databank. After the doctor appealed the case and an Administrative Law Judge ruled unequivocally that the TMB had no legal authority on which to take such an action, the Board simply reinstated its findings and doubled the fine. The suit seeks an injunction against any further arbitrary rejections of administrative rulings by the TMB and a declaratory judgment that such rejections violate both due process and equal protection.
Finally, as additional matters the complaint alleges that physician’s inability to speak out against the TMB and its policies for fear of retaliation, amounts to a denial of free speech. In support of this claim, the complaint points to several instances where Board members have allegedly publicly defamed doctors critical of the TMB. The suit also attacks the Board for allegedly giving confidential records regarding a physician to a hospital with which the doctor was involved in a private dispute.
In response, the TMB has stated that all of the AAPS claims are baseless. Specifically in regards to anonymous complaints, the TMB’s general counsel, Robert Simpson has noted that of the over 10,000 complaints received by the Board in the past two years, only 10 anonymous complaints have resulted in a “disciplinary measure” against a physician’s license / registration. Furthermore, only four percent of the complaint total is made anonymously. TMB officials also point out that the statute authorizing the use of anonymous complaints is designed to protect whistleblowers and thus better protect Texans from bad doctors. Any recent increase in disciplinary actions based on anonymous complaints is also probably at least partially explainable as part and parcel of the 39 percent overall increase in complaints received since the law was amended in 2003 to better catch bad doctors.
The AAPS’s suit raises serious allegations regarding contemporary disciplinary practices at the Texas Medical Board and it will be interesting to see how this will play out in federal court. If nothing else, this heated dispute between a national physician’s organization and the TMB indicates the importance of retaining an experienced professional licensing attorney whenever a doctor is entangled in the Board's disciplinary process.
The Vanishing Informal Conference & The Texas Board of Nursing
Recently, the Board of Nurse Examiners has adopted two practices that besides being unlawful under the Board’s own rules and the applicable law cause great harm to the licensee, one even rising to an effective denial of due process. The first such practice involves the prosecution of disciplinary actions by filing formal charges internally against the nurse, without first offering the licensee a chance to present their case at an informal conference. Not only is this skipping of the informal process contrary to Nursing Board Rules, it also places an undue burden on licensees who are needlessly forced to shoulder increased legal costs and emotional strain.
Similar to many Texas state licensing boards, the Board of Nurse Examiners has adopted rules mandating that a licensee facing a disciplinary action be given the opportunity to participate in an informal settlement conference before the filing of formal charges. Pursuant to the Nursing Practice and Administrative Procedure Acts, the Board Rule regarding informal proceedings expressly states that the licensee be given an “opportunity to be heard.” Title 2 Texas Administrative Code § 213.20(b). Presumably, the rationale for this rule is to ensure that licensees and Board Staff have a chance to informally present their respective cases and hopefully achieve an agreed settlement. Such a procedure avoids encumbering the State Office of Administrative Hearings with an additional case when the matter is open to informal settlement. Likewise the costs of a formal SOAH proceeding are far greater for both the Board and the licensee when compared to an informal conference.
Even more egregiously, the BNE has in some cases decided to file formal charges, broadcast such filing on their website for public viewing, but refuse or wait many months to also docket the case at the State Office of Administrative Hearings. This effectively places the matter in administrative limbo as under the APA until the case is docketed, SOAH does not gain jurisdiction over the matter. This means there will not be a date for a formal hearing, an Administrative Law Judge will not be appointed to preside over the case, and parties can not effectively file motions or perform discovery. Title 1 TAC § 155.9(e). Such practice clearly violates SOAH’s Rules of Procedure which explicitly mandate that an agency pursuing a contested case “shall” docket the case. § 155.9. Moreover, a failure to docket the case after the filing of formal charges also contravenes the APA’s stricture that parties are entitled to a hearing on the merits. Texas Government Code § 2001.051. Simply put, the Board of Nurse Examiners has no legal authority to pursue this policy -in fact such practice violates the rules.
Besides failing to adhere to the law, the Board’s contested hearing practice also deprives licensees of due process. This is not surprising given that the rules being ignored by the Board were designed precisely to safeguard this Constitutional guarantee. Whenever the Board files formal charges against a licensee they also provide public notice that such licensee faces pending charges of a disciplinary nature. This public notice, without the presence of an agreed order finding any actual wrong-doing by the licensee, in turn causes significant damage to a nurse’s current and future employment prospects, their finances, and their professional reputation. This is all the more so if the BNE has also chosen to wrongly circumvent the informal settlement process. If the licensee was able to actively pursue dismissal of the BNE’s allegations or whatever relief they are entitled to, public notice would not rise to the level of a due process problem. Yet absent the docketing of the case this issue comes into plain focus; the nurse is subjected to the stigma of pending formal charges without any chance to clear their name. The BNE’s heinous policy of filing formal charges against a licensee accusing them of violating the Nursing Practice Act and Board Rules without taking the next step of ensuring they will have their day in court not only violates applicable law, it also represents a deprivation of even the most basic semblance of due process.
Unfortunately, the BNE’s inexcusable trial tactics do not appear to be a merely temporary turn. I speculate that the Board’s current practices may be due to the sharp increase in licensure actions pursued by the Board in recent years and the resulting difficulty to an overburdened Board Staff. Since the surge in licensure actions has no signs of letting up in the near future, the BNE will likely continue its current tact. In truth, these two practices should be seen as linked: the Board shouldered with more disciplinary actions than it can handle starts to bypass informal conferences and instead goes straight to SOAH, but then in order to place the matter on the back-burner, the BNE avoids their responsibility to docket the case. Yet, regardless of the administrative difficulties they may be facing, the law says what it says and that is that a licensee is entitled to and “opportunity to be heard” in an informal hearing and then in a formal hearing on the merits once formal charges have been filed. If the Board truly is experiencing difficulty in handling their case load the correct recourse is to petition the state government for more resources. It is not an excuse to violate the clear mandates of state administrative law.
