Texas Medical Board Seeks New Legislation Targeting Pain Clinics

 

The Texas Medical Board is presently lobbying the State Legislature to pass a new bill which would grant them extensive new regulatory authority over pain management clinics. Available for public view on the Texas Legislature’s website as House Bill No. 4334, this legislation would enact Chapter 167 of the Texas Medical Practice Act and extend to the Board far-reaching power over the practice of pain medicine in Texas. As any physician specializing in this area can attest, this is concerning as the Board’s track record in regulating the practice of pain medicine is shaky at best.

 

The proposed bills’ coverage encompasses all “pain management clinics” which in turn is broadly defined as:

 

a publicly or privately owned facility for which a majority of patients are issued a prescription

for opioids, benzodiazepines, or barbiturates, including carisoprodol.

 

There are a number of exceptions for clinics associated with medical schools, hospitals, certain hospices, and facilities maintained and operated by the federal or state governments, however, the proposed scope and impact of the statute is otherwise quite extensive. 

 

There are two crucial features of the bill. The first is that it requires covered pain management clinics to obtain and maintain a special license through the Texas Medical Board. This is independent of any individual state medical license held by the owner/operator and any physicians employed by or on contract with the clinic. This is critical because where there is a license, there is regulation and the bill does not disappoint in this regards. The proposed statute mandates that the Board implement rules necessary to address an extensive set of issues, including:

                            

1)      the operation of the clinic;

2)      personnel requirements of the clinic, including requirements for a physician who practices at a clinic;

3)      standards to ensure quality of patient care;

4)      licensing application and renewal procedures and requirements;

5)      inspections and complaint investigations; and

6)      patient billing procedures.

 

Make particular note of number 3 above; depending on how this is interpreted and implemented, this could be used by the Medical Board as a carte blanche for them, through this grant of rulemaking power, to effectively set the standard of care in pain management. As an attorney who had represented many physicians in pain management cases, I find this particularly disturbing as it has been my experience that the Texas Medical Board usually pursues these cases based on an out-dated and extremely conservative view on what is the appropriate standard of care and when and how a patient with chronic pain issues should be treated.

 

The second striking feature of the bill is its severe restrictions on who can own, operate, or work at a pain clinic. The law would bar anyone who has ever been denied a license under which they may prescribe, dispense, administer, supply, or sell a controlled substance, had such a license restricted, or been the subject of a disciplinary order related to drugs and alcohol from owning or operating a pain clinic, serving as an employee at one, or contracting to provide services with such a clinic. This barrier is absolute; it does not matter how long ago the restriction, denial, or disciplinary action occurred nor whether any restriction is still active. No consideration is taken of the facts and circumstances surrounding the prior disciplinary action, subsequent rehabilitation, or the length of a person’s sobriety.

 

Moreover, an additional provision prevents any person from owning or operating a pain clinic if that individual has been convicted or pled nolo contendre to either 1) any felony or 2) a misdemeanor which is related to the distribution of illegal prescription drugs or a controlled substance. Finally the owner/operator is required to be on-site for at least 33 percent of the clinic’s operating hours and review at least 33 percent of the total number of patient files of the clinic.

 

While there is a genuine need to ensure adequate oversight of pain management clinics, I fear that if passed the above law will likely only increase the regulatory burden on pain doctors in Texas, a group that already suffers from a disproportionate number of disciplinary actions and investigations led by the Medical Board. Until the Texas Medical Board discards its out-of-date views on the treatment of chronic pain and embraces the new medical consensus that this is real, persistent, and under treated problem, I fear that the proposed bill will only make it more to difficult to safely practice this needed discipline in Texas.

 

I would also like to stress in closing that any pain physician who is being investigated by the Texas Medical Board should contact an attorney immediately as the consequences of going it alone are typically disastrous. The Board routinely seeks a revocation in such cases on the assumption that the physician must be running a “pill mill” dispensing a standard set of medications without regard to each patient’s individual condition and needs. Even when a revocation is not on the table other common sanctions include restrictions on the physician’s DEA and DPS certificates, restrictions on the doctor’s ability to supervise physician assistants and nurse practitioners, and the imposition of a chart monitor. Any of these sanctions can be considered a restriction on the physician’s license and hence led to exclusion from third-party networks and other credentialing bodies, with the former being a potentially fatal development for many practices.

 

If you are being pursued by the Texas Medical Board in a pain management matter it is well worth your interest to contact an attorney with experience both before the Board and in administrative litigation generally and in representing pain specialists and their clinics.   

Am I Eligible for a Nursing License?: Declaratory Order of Eligibility for Licensure

 

I often receive calls from nursing students, or even those only considering pursuing a nursing degree, with questions concerning whether or not they will be licensed by the Board of Nursing. Typically, these individuals have a criminal record, history of misuse of controlled substances, or a mental health diagnosis that they fear will present an obstacle to successful licensure.

 

These persons have already taken best course of action by being proactive and contacting an attorney with experience before the Board and who should therefore be able to estimate the difficulty they may or may not face in applying for their license. Generally speaking most nurses with marks on their record should be able to obtain licensure. A good portion of these may have to do so under the form of a probationary license with restrictions related to whatever it is that concerns the Board.

 

For example, an applicant with a history of abuse of controlled substances may only receive their license on the condition that submit to random drug screens, attend AA meetings, successfully complete a recovery program, and work in an environment where they can be supervised by a superior nurse. A nurse with a criminal record may have to enter into an Agreed Order that provides for supervised practice and grants them only a provisional license with full licensure dependent on achieving a number of years of violation-free practice. Finally, persons with a serious psychiatric diagnosis may need to agree to an Order mandating that they continue with a specified medical treatment program to keep their condition under control.

 

The very few nurses who will likely not be issued a license are those with serious criminal convictions or an ongoing and untreated chemical dependency problem. On the issue of serious criminal offenses I am referring to convictions such as rape, sexual assault, kidnapping, injuring a child, or murder. Section 301.4535 of the Nursing Practice Act provides a list of criminal offenses for which the Board may refuse to license an applicant. Other felony convictions fall under this list as well.

 

Future nurses should note, however, that the Board is typically reluctant to license a nurse even a minor black mark on their record if they are not represented by an attorney. They will usually refuse outright or press a nurse to enter into an order with terms that are more stringent than indicated by their history. As in any disciplinary matter, the Board of nursing generally pursues the severest sanction unless the nurse has a lawyer to fight for their interests.

 

One option for students unsure of their eligibility for licensure is found in § 301.257 of the Nursing Practice Act. This section provides that a nursing student or even a person only considering attending a nursing school can file a Petition for a Declaratory Order of Eligibility for Licensure. In response, the Board of Nursing will then review that person’s history and assess whether they meet the required good moral and professional character standards. If they do, the Board Staff will issue a Declaratory Order finding that individual conditionally eligible for licensure as long as they graduate and later pass the standard nursing exams.

 

If you have questions about your eligibility for a Texas nursing license or the declaratory order procedure, please call an experienced administrative law attorney. They should be able to intelligently discuss your case and lay out your options. Don’t wait until after graduating from nursing school to find out that you may not be eligible for a Texas license.

Physician in Training Permit Applications: A Guide to the Basics

The Texas Medical Board issues Physician-in-Training permits (PIT Permits) pursuant to Texas Medical Practice Act section 155.105 and Texas Medical Board rules found in the Texas Administrative Code under 22 TAC Section 9 Chapter 163. The PIT permit is required for graduates of a United States or Foreign Medical School who wish to pursue a residency or post-graduate fellowship in Texas who do not possess a Texas Medical License due to ineligibility or a pending application. Although the application for a Physician-in-Training permit is not as cumbersome, tedious or labor intensive as a full physician registration, medical doctors often find themselves needing to go before the Texas Medical Board’s Licensure Committee to explain their good professional character or clinical competence due to:

  • Academic difficulties in medical school including poor performance or discipline as evidenced by the applicant’s academic transcript from the third or fourth year of medical school;
  • Problems in a post-graduate residency program including failing grades, poor performance, or discipline by the medical faculty;
  • Physician discipline from a medical staff, denial by a credentialing committee or other discipline by another state licensing board;
  • Criminal convictions involving dishonesty, moral turpitude, controlled substances or alcohol;
  • Mental illness which rises to the level of requiring the Applicant to demonstrate their ability to practice medicine with reasonable skill and safety;
  • Falsification of information on the Physician-in Training application;
  • Malpractice claims, lawsuits and judgments
  • Perceived statutory ineligibility.

Arguably, the most critical factor for physician applicants to be aware of is the need for complete and thorough honesty and candor as lying or falsification on the application is a basis for denial. The Texas Medical Board’s Licensure Division carefully scrutinizes each application and often sends lacking letters and requests for clarifying information to the applicant. During this process Board Staff accesses criminal information through the Federal Bureau of Investigation as well as medical school and residency evaluations and performance assessments not readily available to the applicant. If a falsification issue arises when the file is reviewed by the Executive Director he may issue a letter or order denying the application. Denials that become final are reported to the National Practitioner Data Bank (NPDB) and become a part of the medical doctor’s permanent disciplinary history. If you are uncertain about whether or not to include information on your application it is prudent to err on the side of caution. Genuine disputes or personality differences between the applicant and medical school faculty or medical staff member can be successfully explained away, but a perceived effort to conceal information may mar your record indefinitely.  

If you are a medical doctor applying for a Physician-in-Training Permit and are uncertain how to proceed with your application you should seek guidance from your training program and an experienced attorney. If your application for a PIT permit has been denied or you have been invited to appear before the Texas Medical Board’s Licensure Committee you are in need of effective legal representation immediately. Once the letter of denial is received the applicant has twenty days to act before it is made a part of their permanent disciplinary history at the NPDB. An initial presumption of ineligibility can be successfully overcome through good legal representation by an experienced lawyer who is familiar with the application process.