The National Resident Matching Program (NRMP) is the non-profit, non-governmental organization that facilitates the annual “match” between medical students and residency programs. Created in 1952, it was implemented to make the process more streamlined, and initially to ease the competition between programs in filling available positions. While it has changed over the years, the NRMP employs a

 

I have been representing nurses in disciplinary cases before the Texas Board of Nursing for over ten years. My five lawyer law firm has assisted approximately 1000 nurses in a variety of legal and nursing license matters with the Board. This includes RN’s, LVN’s and advance practice nurses such as family nurse practitioners and CRNA’s.  During this time the Board’s Staff attorneys have grown in number from 2 to 6. The Board’s general counsel (Dusty Johnston) has been a constant as has the director of enforcement and the Executive Director –Katherine Thomas. The Staff has grown in number as well with additions made in investigations, enforcement and licensing.

 

Five years ago the Nursing Board’s case log was backed up and a nurse undergoing an investigation could expect the case to drag on for three to five years. A competent attorney who was familiar with the Board’s processes could expect an informal conference to be afforded to their Client. At this conference reasonable efforts to talk, settle or have the case dismissed would occur before Formal Charges were filed and the matter was set by the nursing board’s lawyers for a contested case hearing at the State Office of Administrative Hearings –SOAH.

 

Today the Texas Board of Nursing, the enforcement division and its six lawyer Staff have a much different approach. The disciplinary case comes through investigations where it is worked up by an investigator and reviewed by a supervising investigator / team leader. While the team considers material filed by the nurse and their attorney, if there is reason to believe the nurse has violated the Nursing Practice Act the nurse is sent a proposed agreed order for their review. At this juncture one can ask for an informal conference but unless the case is practice related and the evidence is tenuous the request for an informal is unlikely to be granted. Instead, the Respondent Nurse can either accept the offer or the case will move on to SOAH for the next phase of litigation. This is an emotional and difficult decision for any nurse and their attorney.

 

If the proposed Agreed Order is rejected formal charges are filed internally with the Board and posted on the Texas Board of Nursing’s website for public viewing. Employers often balk at nurses who have formal charges filed against them and many are fired as a result even though they are just defending themselves and their license. Although the nursing license is now tagged or marked the nurse has no ability to defend their license through discovery until the Board’s attorneys docket the matter at SOAH and formal discovery begins. This is tacitly unfair but unless the nurse through her attorney requests the matter be expeditiously docketed they just remain in limbo with a mark across their license and name.


Continue Reading

There has been a recent and rapid rise in the number of physicians being prosecuted for the alleged non-therapeutic prescribing of controlled substances under both state and federal law.  In the last week alone I have received numerous phone calls from a variety of medical and osteopathic doctors who had been arrested and/or indicted by the federal government or a local law enforcement branch after a joint investigation by a task force of state and federal agencies such as the Texas Medical Board (TMB), Drug Enforcement Administration (DEA), a local sheriff’s and/or police office and the State Board of Pharmacy. These individuals are being charged by prosecuting attorneys in United States District Court (Federal Court) with crimes under the Federal Controlled Substances Act or in State Court for violations of the Health and Safety Code and the Medical Practice Act. In most cases the basic charge is the delivery of a prescription (to a patient and within the context of the physician’s medical practice) for a controlled substance without a valid therapeutic purpose. Many of the physicians I spoke with questioned why and how the government can substitute its’ clinical judgment for the physicians.  Essentially this amounts to a physician being prosecuted and jailed for a standard of care based decision that was once a purely civil or administrative inquiry. My law practice has been handling these cases for years and over the last year the number of inquiries to our attorneys has increased tenfold suggesting the marked rise in government prosecutions is very real. 

Oftentimes the Government relies on the sheer number of prescriptions written or the types / combinations of medications prescribed to make its’ case. It then utilizes experts to opine that a reasonable physician would not prescribe this combination of medications to this many patients and thus the treatment of patient X was non-therapeutic. This is a questionable way to go about proving a case, but it does not stop the Government from doing its investigation, arresting the doctor, forcing the surrender of their DEA issued controlled substances registration, initiating the inevitable discipline and loss of the physician’s medical license and the consequent destruction of their medical practice pending prosecution(s).  While violations of the administrative rules surrounding the handling and use of prescriptive authority carry civil and administrative monetary provisions, violations of a state or federal statute mean confinement upon conviction and the inevitable loss of the physician’s career in medicine. For many physicians the result has been the very conservative treatment of patients and arguably the under treatment of both acute and chronic pain. I have thankfully yet to see the government pursue a case that involved palliative care.


Continue Reading

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. 


Continue Reading

The 2011 regular Legislative Session resulted in a moderate reform of the Texas Medical Board’s disciplinary process. The Governor signed House Bill 680 into law on June 17, 2011. The modest reform measures that were ultimately included in HB 680 are not likely to satisfy the longtime proponents of Medical Board reform. A number of the more

The Texas Medical Board (TMB) cancelled the appearance of all physician licensure candidates scheduled to appear before the Board’s Licensure Committee at its February 3 and February 4th meeting due to inclement weather. The applicants have been rescheduled until the April Board meeting. This will result in the scheduling of probably 40 to 50 applicants at

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

Recent months have seen a sharp upswing in the Board of Nursing’s use of temporary suspension as a disciplinary measure against licensees including RN’s LVN’s, APN’s and CRNA’s. This is likely due to an influx of new attorneys, investigators, and other staff at the Nursing Board. Temporary suspension is authorized by the Nursing Practice

Every Texas insurance agent should be aware of the most common grounds for being the subject of a disciplinary investigation and action by the Texas Department of Insurance as well as the basic disciplinary procedures that are involved in this process.

 

Although not exhaustive, § 4005.101 of the Insurance Code sets out the most general and frequently used grounds for a disciplinary action against an agent. These include:

 

  • intentional material misstatements or fraud in connection with obtaining a license;
  • misappropriation, conversion, or illegal withholding of money belonging to a client, insurer, or health maintenance organization;
  • conviction for a felony;
  • material misrepresentation of the terms of a policy or contract;
  • engaging in fraudulent or dishonest acts or practices;
  • improper offering or giving of rebates;
  • violations of any insurance law; and
  • failure to maintain continuing education requirements.

Texas Insurance Code § 4005.101. Note that many of these -particularly numbers (1), (3), (4), (5), and (7)- are broad-sweeping, encompassing a wide swath of potential conduct. In particular, TDI can and will interpret these provisions as they deem is needed to protect the public from fraudulent or dishonest insurance practices.

 

The Texas Department of Insurance can impose an array of sanctions on an agent licensee. These include outright revocation/suspension/denial of the agent’s license in its entirety or only as to specific lines of insurance. The TDI can also decide to probate a suspension and attach conditions limiting the scope of the agent’s license. Finally,

the TDI may issue a public reprimand or impose sizable fines. Id. at § 4005.104.

 

Typically, an agent will first realize that the Department of Insurance is considering a disciplinary action against their license when they receive a letter of investigation. This letter should inform the agent that an official investigation is being conducted by TDI and outline the basic facts that led to its initiation and that are providing its focus. From this point, TDI may conduct an informal hearing on the matter where the agent, their attorney if they have retained one, and the prosecuting staff attorney have an opportunity to present their case before a small panel. This panel will then make a recommendation to TDI. Unless the Department of Insurance decides to dismiss the matter entirely, they will then offer an order to the agent that sets out official findings and specific sanctions.


Continue Reading

Recently, I have represented a pharmacist whose reapplication for his controlled substances registration was denied by the Texas Department of Public Safety when he voluntarily acknowledged that he had previously been convicted of a felony. He was one of several defendants on trial for the same set of criminal transactions and his own share of the guilt was slight. It was essentially a case of bad judgment and naivety on the part of my client. He had entered into a business relationship with the wrong people and was now paying for their misdeeds. The Federal Drug Enforcement Agency had essentially agreed and declined to take action against his controlled substances registration. In addition the Texas Pharmacy Board has so far chosen not to seek any disciplinary sanction.

 

In contrast, the Texas Department of Public Safety pursuant to the Texas Controlled Substances Act § 481.063(e)(2)(A) summarily denied his reapplication on the basis of his voluntary admission of his felony conviction. This section of the Health and Safety Code provides for such denial when an applicant has been convicted or placed on community supervision or probation for a felony. Fortunately, the Texas Legislature has also inserted into this chapter a provision allowing the Director of the DPS to probate a denial under § 481.063(e)(2)(A) upon a showing of good cause. The Act and the Department of Public Safety’s own administrative rules also generally allow an applicant to request a hearing wherein they may present evidence and argument in their favor.

 

As a hearing would almost certainly be necessary to present evidence establishing good cause for a probated order, I requested one as part of my client’s response to the DPS’s decision to deny his reapplication. In reply, the DPS sent a letter reiterating their denial and pointing to § 481.063(h). This Section holds that in the case of a denial based on a felony conviction, the provisions of the Texas Administrative Procedure Act do not apply. This is significant in that this bars access to the normal administrative process, most importantly, a licensee’s right to a full evidentiary hearing before an Administrative Law Judge.


Continue Reading