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.