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The Texas Medical Board does not have the power to discipline a physician’s medical license / registration for an isolated arrest and subsequent conviction for driving while intoxicated. However, Board Staff will open an investigation into all physicians who have been arrested for DWI to determine if the physician suffers from a medical or physical condition which may impair their ability to practice or during the commission of the DWI they committed unprofessional conduct.

The Texas Medical Practice Act (Texas Occupations Code § 164.051) and the Medical Board’s Rules found in the Texas Administrative Code (Title 22, Part 9, Rule 190.8) are the guiding statutory for the Board’s ability to investigate and discipline a physician’s license for the offense of DWI. Per the Medical Practice Act the Board lacks the jurisdiction to impose discipline for a DWI offense that “stands alone” as it is neither a felony nor a crime of moral turpitude (Tex. Occ. Code § 164.051(a)(2). However, if an investigation yields that a physician was on call, subject to duty or scheduled to work soon after the time of arrest the following potential violations will be explored:

  • implications of unprofessional conduct (Prohibited Practices § 164.052(5)
  • the possibility of the physician’s use of alcohol or drugs in an intemperate manner that in the Board’s opinion could endanger a patient’s life ( Prohibited Practice § 164.052(4)

Continue Reading DWI: Medical Licenses & Physician Discipline

Ethyl Glucuronide (EtG) is a metabolite created by the body following alcohol consumption. Testing for this metabolite, typically via a urine sample, has become increasingly prevalent in the United States following its initial approval and use in Europe especially by agencies concerned with monitoring an individual for any relapse or return to active drinking. Many favor EtG sampling because it is a “direct” test for alcohol consumption in contrast to older, more traditional tests like Gamma Glutamyl Transferase or Carbohydrate-Deficient Transferrin which look for indirect signs of alcohol use such as liver damage. Further, while older tests generally only become positive following heavy alcohol use, EtG can be present in the urine after only a single drink. Moreover, EtG remains in the body and is detectable in urine three to five days after consumption

Unfortunately, EtG testing has several serious short-comings that limit its viability as an stand-alone objective marker of recent alcohol consumption and relapse. In the area of medical testing, a test is characterized by two qualities: sensitivity and specificity. Sensitivity measures the ability of the test to correctly identify those individuals who do have the condition of interest, here relapse, while specificity measures the ability of the test to correctly identify those persons who do not have the condition of interest. EtG testing has a high sensitivity, that is it has a high probability of correctly identifying as positive an individual who has recently relapsed. However, it also has a low specificity, that is it has a high probability of showing as positive a person who has not recently consumed alcoholic beverages. For example, research has shown that use of everyday items such as bug spray, mouth wash, various over-the-counter medicines, and hand sanitizer can produce positive results. Additionally, without further research, testing facilities have been unable to arrive at a consensus on the level of EtG that should be considered positive for a relapse. The high level of false positives seriously undercuts its status as a viable test for relapse and can easily lend itself to abuse by monitoring agencies such as the Texas Medical Board or the Texas Board of Nursing (Formerly known as the Texas Board of Nurse Examiners).Continue Reading What is Ethylglucuronide -EtG Testing?

Although initial arrests and convictions for Driving While Intoxictated (DWI) will not ordinarily result in the imposition of a disciplinary sanction against a Texas Nurse, they often do give rise to a stressful and searching investigation by Staff of the Board of Nurse Examiners. This result is due to, on the one hand, the legal fact that under the Nursing Practice Act, many DWI’s do not relate to the practice of nursing, and on the other, the practical reality of the Nursing Board’s zealous policing of what it deems unprofessional conduct (Texas Occupation Code § 301.452(b)(10).  A knowledgeable attorney can best secure a positive outcome by ensuring that the correct standard is applied and not substituted by the Board’s personal opinion(s) on what constitutes unprofessional or dishonorable conduct.  

Under the Nursing Practice Act the Board can take disciplinary action against a licensee if a nurse has been convicted or placed on deferred adjudication for either a felony or a misdemeanor involving moral turpitude. (Texas Occupation Code § 301.452(b)(3)). An individual’s first two DWI’s are misdemeanors under the Texas Penal Code with the third and all those thereafter rising to felonies. From a legal standpoint, however, the Nursing Board’s broad discretion to take disciplinary action under the Nursing Practice Act is limited by the Texas Occupation Code’s prescription that discipline can only be imposed if the felony or misdemeanor “directly relates to the duties and responsibilities of the license holder.” (Texas Occupation Code § 53.021). In deciding this issue, the Board must weigh certain factors such as “the relationship of the crime to the purposes for requiring a license to engage in the occupation” and “the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation.” (§ 53.022)

Board Staff’s policy, however, is to initiate an investigation into a nurse’s fitness and character if they have two or more criminal arrests for alcohol or drug related offenses in a lifetime. Board Staff does not seem to differentiate between arrests, deferred probations, regular probations, dismissals and final convictions with respect to opening an investigation. Once the investigation is initiated, Board Staff tries to force the nurse into a forensic psychological evaluation and polygraph test in an effort to determine if the license holder suffers from a DSM IV diagnosis of chemical abuse or dependence. Unfortunately, any other conduct or psychiatric disorder discovered through this battery of questionable discovery is then utilized to stipulate the nurse’s registration. Board Staff is successful in this less than admirable procedure as many nurses think they do not need or can not afford an attorney. Competent, experienced counsel however, can put a halt to this process and mount a successful defense against Board Staff’s position that all criminal conduct is unprofessional and therefore relates to the practice of nursing. Moreover, a knowledgeable attorney will know how to circumvent Board Staff’s insistence that the Nurse undergo an evaluation with a “Board Approved” expert and then submit to the rigors of a “qualifying” polygraph examination.   Continue Reading DWI & Nursing License Discipline by the Texas Board of Nurse Examiners

The Texas Administrative Procedure Act (APA) offers a ready incentive for a licensee such as a doctor or nurse to seek prompt renewal of their license if they face or expect to face a disciplinary action before their respective state licensing board. Chapter 2001.054 of the Texas Government Code (The Administrative Procedure Act) provides a special rule when the professional’s license renewal is contested by the applicable administrative agency and such agency is required to provide timely notice and an opportunity to be heard, two conditions that apply to virtually every disciplinary action. When such a licensee applies for renewal, their existing license automatically remains in effect until their application has been finally determined by the state agency. Further, if the state agency decides to deny or limit the terms of the new license, the professional’s existing license does not expire until the last day for appealing the agency order or other date set by the reviewing court, whichever is later.

Thus a doctor who expects the Texas Medical Board to deny the renewal of their professional license or to take other disciplinary action against them should timely apply as they will still retain and be able to practice under their existing license. The same situation applies to a nurse facing disciplinary action by the Texas Board of Nurse Examiners, an optometrist in front of the Texas Optometry Board, a dentist before the Texas State Board of Dental Examiners, and other licensed medical and non-medical professionals.
Continue Reading Timely License Renewal Under the Texas Administrative Procedure Act

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.

Continue Reading Physician in Training Permit Applications: A Guide to the Basics

The Texas Code of Criminal Procedure Chapter 55, Article 55.04 forbids a State Agency from using, questioning an individual about, or in any way releasing information about an arrest that has been expunged pursuant to the provisions of Chapter 55. Moreover, Tex. Code Crim. Proc. § 55.03 provides that the effect of an Expunction Order in a licensure disciplinary proceeding, including the application process,  allows for the individual to deny the arrest and the existence of the Order of Expunction. However, the Texas Board of Nurse Examiners (BNE) requires that a licensed nurse or nursing license applicant disclose the existence of the arrest on renewals and initial license applications. It is undetermined if they seek to utilize these arrests against the nurse in a disciplinary proceeding or as a basis for the denial of a license. However, the mere thought that the registration renewals or applications ask about information which if utilized would subject members of Board Staff to criminal sanctions raises a few alarming concerns.Continue Reading Expunctions: Disclosure, Discipline & The Texas Board of Nurse Examiners

The Board of Nurse Examiners for the State of Texas received authorization and funding from the legislature to undergo complete criminal history and background checks on every nurse in the State of Texas.  Accordingly, every LVN and RN in Texas will be required to submit a fingerprint card to the BNE over the next ten years.  The cards will be submitted to the FBI and the Texas Department of Public Saftey for verification and accuracy of the Nurse’s identity and criminal history. Ten percent of nurses will be required to undergo this scrutiny per year until all licensees have been evaluated.  This has created a marked rise in investigations and disciplinary orders.  There are several inherent problems with this process however, and nurses should seek advice from an experienced lawyer before they accept a proposed disciplinary sanction that will mar their record indefinitely.

      To begin, the BNE did not acquire jursidiction over deferred adjudications until September 1, 2005.  Staff of the Board however, is investigating offenses that resulted in deferred adjudication probations and dismissals that are more than twenty years old.  This week alone I received calls from two LVNs who had just such misdemeanor criminal records and were being investigated by the BNE.  Board Staff, including the Attorneys, readily admit they did not and do not have substantive jurisdiction over the criminal history, but maintain they are concerned about the conduct or the psychiatric disorder that may be reflected by the offense and the behavior.  The fact is both of these nurses have renewed their licenses for the last twenty (20) years and have never been required to reveal this history.  Additionally, both have practiced nursing without incident during this period and each has had exceptional performance appraisals from all employers.  Why then is the BNE delving into these issues when all of their investigators have such large case loads that they can not adequately work up a case?  The answer is simple -Public Image.Continue Reading BNE & Criminal History -Public Image or Public Safety?

Physician with AttorneyThe Texas Medical Board (TMB) pursuant to the Medical Practice Act section 164.059 has the authority to temporarily suspend a physician’s license to practice medicine with or without notice if the physician poses a real and imminent threat to the public through his/her continuation in practice.  Although the evidentiary threshold is more stringent than in disciplinary matters…

Consider this scenario: You lose your medical (nursing, pharmacist, etc.) license to practice, so you move states in order to escape the ramifications of a surrendered or revoked license. 

Unfortunately, the ramifications of your lost professional registration may follow you in the form of an exclusion. An individual subject to an exclusion is significantly limited in her ability to work in the health care profession nationwide. The purpose of the exclusion remedy is to protect beneficiaries of Federal health care programs from incompetent practitioners and from inappropriate or inadequate care. In the broadest sense, a section 1128 exclusion prevents individuals and entities from participation in Medicare, Medicaid and State health care programs. However, this does not affect your rights to participate as a beneficiary (i.e., if you break your arm and Medicaid normally pays, then you can still collect these benefits). 

According to 1128(b)(4) of the Social Security Act, an individual may be excluded from participation in any Federal health care program if that person’s license was revoked, suspended, or otherwise lost, or because it was surrendered while a formal disciplinary proceeding was pending before an authority and the proceeding concerned the individual’s professional competence, professional performance, or financial integrity. The Office of Inspector General (“OIG”) will generally send you a letter informing you that you may be excluded from health care programs including:

  • Medicare
  • Medicaid
  • Veterans Administration
  • TRICARE, etc. 

The Social Security Act allows the OIG to exercise discretion when deciding whether or not to exclude individuals from participating in Federal health care programs. Even if the OIG decides to exclude you, they also have discretion to determine the length of the exclusion. Of course there are guidelines and considerations, such as:

  1. the nature of the act that gave rise to the exclusion;
  2. length of license suspension;
  3. criminal history, and;
  4. the availability of other sources of the type of health care services furnished by the individual. 

Continue Reading Surrendered Licenses & OIG Medicare Exclusions

polygraph forensic quandryThe Board of Nurse Examiners for the State of Texas (BNE) evaluates applicant’s for RN and LVN licensure per the Nursing Practice Act and the Nursing Board’s Rules found in 22 Texas Administrative Code Sec. 217.11  et al.  Per the Nursing Practice Act, Board Staff has the ability to investigate an applicant’s character and fitness to practice Nursing based on indications that an applicant may lack the "good professional character" to be a licensed nurse. 

In an effort to weed out poor or marginal applicants Board Staff notifies individuals that due to their criminal, work, mental health or drug use history they must Petition the Board’s Executive Director for a Declaratory Order to practice nursing.  Then Board Staff (through the Executive Director) requests that they undergo a forensic psychological evaluation with a polygraph test component.  Although it is not explicitly stated in the request the implication is that a failure to submit to the "illegally requested" tests will result in a denial of the application for a license.

Although not legally authorized, Board Staff requests these evaluations for crimes that are often thirty (30) years old and that in and of themselves do not relate to the practice of nursing.  Moreover,  the forensic evaluation and polygraph tests are often nothing  more than a fishing expedition to determine if a person has done something in their past to render them ineligible.  Oftentimes what is dicovered is then used as the basis for denial even though it is often not legally admissible evidence. The simple truth is JUST Say No to the polygraph and call an attorney.  Continue Reading The Polygraph Test: Just Say No to the BNE