Given the current aggressive regulatory climate surrounding the treatment of chronic pain, it is worthwhile to look back and understand how the applicable law developed prior to the Legislature’s empowerment of the Texas Medical Board to oversee registered pain clinics in 2011. This prior law, including the Intractable Pain Treatment Act, was designed to safeguard physicians who treat chronic pain while remaining within the standard of care. It has been my experience as an attorney representing numerous physicians, mid-level providers, and pharmacies, that this prior law has largely been either forgotten or eroded to the point it no longer provides real protection to medical professionals.

The Intractable Pain Treatment Act (IPTA),  separate from the Medical Practice Act, is codified at Chapter 107, Texas Occupation Code, and was intended to provide physicians with a safe harbor in prescribing controlled substances and dangerous drugs to treat pain. In this post we provide a background of this Act and its current relevance, or lack thereof, in the practice of medicine. 

The Intractable Pain Treatment Act was passed in 1989 to deal with the problem that physicians were being disciplined by the Texas Medical Board because the Board refused to distinguish habitual users of narcotic drugs from patients with genuine medical needs. Prior to the passage of the IPTA, the Medical Practice Act allowed the Texas Medical Board, known at that time as the Texas Board of Medical Examiners, to discipline physicians for prescribing controlled substances or dangerous drugs to a person "known to be habitual users of narcotic drugs, controlled substances, or dangerous drugs or to a person who the physician should have known was a habitual user of the drugs." This phrasing of the Medical Practice Act made patients taking opioids to alleviate genuine suffering "habitual users." Accordingly, physicians prescribing pain medication to cancer patients were subject to disciplinary action by the Board. Such was the effect that physicians refused to prescribe these therapeutic drugs and hospitals refused to let physicians prescribe them on the premises. 

The Intractable Pain Act of 1989 sought to rectify this basic problem by protecting physicians from Texas Medical Board discipline if they prescribed the medication for "intractable pain."   Intractable pain is defined as pain the cause of which cannot be removed, treated, or cured. The IPTA also prohibited hospitals from restricting credentialed physicians from prescribing pain medications for intractable pain. 

In 1993 the Legislature modified the Medical Practice Act to prohibit doctors from prescribing to a person who was a known "abuser" of controlled medications. In 1996 the Legislature amended the Intractable Pain Act to allow physicians to prescribe controlled medication even to such abusers as long as the medication was strictly for the management of their diagnosed pain which the physician had a duty to monitor. The physician was also required to document the understanding between the doctor and the patient and to consult with an addiction specialist as appropriate. These restrictions were only required when dealing with patients who were drug abusers or had a history of drug abuse. 

In its final form the IPTA was meant to provide a safe harbor for Texas doctors who treated long-term pain provided the controlled medications they prescribed were actually for an underlying pain condition. This safe harbor protects physicians who treat known drug abusers for intractable pain provided they monitor the patient and consult with the appropriate mental health expert. Yet the protections of the safe harbor are slight; by the Act’s own terms, the Texas Medical Board can still discipline physicians if they prescribe non-therapeutically or prescribe in a manner inconsistent with the public welfare.  

The safe harbor provision provided by the Intractable Pain Treatment Act has been recognized, albeit modified, by the Board in its pain management rules codified at Chapter 170, Title 22 Texas Administrative Code. The rules recognize that pain treatment is a vital and integral part of the practice of medicine and that doctors should be able to treat pain using sound clinical judgment without the fear of disciplinary action from the Texas Medical Board. Yet, the rules go on to list several actions that should be involved in the treatment of chronic pain including the formulation of a pain management contract requiring random drug screening.

From the rules it is apparent that whereas the Intractable Pain Treatment Act required heightened monitoring and more rigorous documentation merely for known drug abusers, the Board’s most recent rules make that standard applicable to all long-term pain management patients. While the rules do call themselves "guidelines" it should be noted that the Texas Medical Board will allow deviation from the guidelines only if the physician’s rational for treatment indicates sound clinical judgment documented in the medical records.

Continue Reading The Texas Intractable Pain Treatment Act And Chronic Pain

 

As we reported earlier this month, the Drug Enforcement Administration (DEA) along with several state agencies, including the Texas Medical Board (TMB) and Texas State Board of Pharmacy (TSBP), has been increasingly active in Houston over the past few months. More than ever before, the joint state and federal taskforce has taken a scorched earth approach to the battle against alleged “pill mills.” The taskforce has generally shown up at clinics and pharmacies unannounced, seizing records and equipment, and demanding surrender of the practitioner’s DEA prescribing registration. The practitioners targeted by this task force and these methods are not just notorious “pill mill” doctors and pharmacies, but also a large number of legitimate pain management physicians, physician assistants, nurse practitioners, pharmacists and pharmacies that just happen to be operating at ground zero of the war on prescription drugs. The net has been cast wide, and many practitioners are finding themselves in need of competent and experienced legal representation.

A Surge in Temporary Suspensions on the Horizon:

Many of the physicians or physician assistants that have any present or past association with these raided clinics are finding themselves the target of Temporary Suspension proceedings by the Texas Medical Board, based solely on their association with an alleged “pill mill”. We have received numerous calls over the last few weeks from physicians and physician assistants who have received notice of Temporary Suspension proceedings and are seeking the services of professional license defense lawyers. The Texas Secretary of State’s website currently lists eight Temporary Suspension hearings to be heard by the Medical Board just next week. 

Temporary Suspension proceedings are initiated when Medical Board staff believes they have evidence sufficient to prove that the licensee’s continued practice constitutes a continuing threat to the public welfare (See Occupations Code, Section 164.059(b)). If after a Temporary Suspension hearing, the Disciplinary Panel, made up of Medical Board members, decides that Medical Board staff has indeed presented evidence sufficient to prove that the licensee constitutes a continuing threat, then that licensee’s license is suspended that very day. As such, there is a great deal at stake for any licensee that finds themselves in that position, and the benefit of hiring an attorney well-versed in medical license defense should be clear. 

The Board’s Temporary Suspension remedy has traditionally been used sparingly, due to its severe impact on a licensee’s career, and due to the sizeable burden that Medical Board staff shoulders in proving that a licensee is a continuing threat to public welfare. The wave of Temporary Suspensions that the Board currently has scheduled represents a significant departure from that thinking. The commonalities in these cases are that the practitioners have some connection, either present or past, with a pain management clinic that has been targeted by the DEA taskforce. The licensee may be a physician who was serving as a part-time supervising physician or medical director. The licensee may be a physician assistant that worked in the clinic on a contract basis. Whatever the association, Medical Board staff’s theory of prosecution equates any association with an alleged “pill mill” to a continuing threat to the public, and often the evidence that they are using to show a continuing threat is equally as thin. However, if a licensee is not equipped to challenge Medical Board staff’s evidence and legal theories, it is likely that the Medical Board panel will find with Board staff. 

What should you do if you receive notice of a Temporary Suspension hearing?

You should hire an attorney immediately upon being noticed of a Temporary Suspension hearing in front of the Texas Medical Board for several reasons.   

First, you are most likely not equipped to represent yourself in a contested hearing in front of the Texas Medical Board. The disciplinary process at the Board is not intuitive and Temporary Suspension proceedings are particularly quirky. It is to your benefit to hire someone that is capable of putting on a cohesive defense that will include preparing and presenting documentary evidence, putting on witness testimony, cross-examining Board staff’s witnesses, and zealously advocating on your behalf. 

Second, the Medical Board is only required to give you 10-days notice by Board rule (Texas Administrative Code, Title 22, Chapter 187.60(2)). This is a very limited amount of time to put together a strong and comprehensive defense. The best way to combat this challenge is to hire a lawyer that is capable of preparing a defense under these conditions, and to hire them immediately, so as to not waste time. 

Third and finally, you should seek legal counsel and potentially hire an attorney because there is a great deal at stake with a Temporary Suspension hearing. It is nothing to be taken lightly. Your ability to practice under your license in the short term is in jeopardy, as is your future practice. A temporary suspension is on your public record forever, and its existence will definitely require explanation, and could potentially cost you opportunities in the future.       

Conclusion:

If you receive a visit from the DEA taskforce or you are given notice of a Temporary Suspension hearing from the Texas Medical Board or Texas State Board of Pharmacy, please do not hesitate to contact the professional medical license defense attorneys at the Leichter Law Firm. You need the guidance of an attorney that is experienced in medical licensing law, including cases dealing with allegations of non-therapeutic prescribing and prescription drug diversion, as well as the potential criminal ramifications. The Leichter Law Firm’s attorneys have represented clients in similar circumstances and have gained positive results for our clients. Give us a call at (512) 495-9995 or submit an inquiry through our website at http://www.leichterlaw.com/ for a free consultation. 

 

Over the past month, the Federal Drug Enforcement Administration has drastically increased their activity in the Houston area. This includes a dramatic upswing in the number of unannounced raids targeting pain management physicians, physician assistants, nurse practitioner, and pharmacies. At this juncture, most every pain management clinic and pharmacy in the Houston should be aware of the coordinated campaign being conducted against pain management medicine by the DEA, local law enforcement, the Texas Medical Board, and the Texas State Board of Pharmacy. For background information please refer to the numerous posts concerning this topic on this blog.

To date, the government’s strategy has largely focused on identifying the largest prescribers and dispensers of the most commonly prescribed medications for pain management— hydrocodone and some type of muscle relaxer, usually Soma— and then targeting these facilities as well as the associated physicians and pharmacists. Oftentimes, the physician, mid-level practitioner, or pharmacist will only first learn they have been targeted when the DEA and associated agencies suddenly appear at their place of business brandishing badges and search warrants. This will be closely followed by a temporary suspension hearing before the Texas Medical Board or Texas State Board of Pharmacy intended to immediately suspend the practitioner’s license.

Based on the number of phone calls to my law firm in the last month, it is clear the government’s tactics have shifted away from selectively targeting the highest prescribers and dispensers of pain management medications. The DEA is now engaging in a much wider, almost indiscriminate, operation of raiding pain management clinics and the pharmacies that fill their scripts. Many of these raids appear focused merely on seizing records and equipment.

Traditionally, virtually every search and seizure has included a demand by the DEA that the physician or pharmacy owner immediately surrender their controlled substances registration. This is accompanied by vague threats of criminal and/or administrative prosecution if the licensee declines. During the most recent set of raids, the DEA has not consistently requested the surrender of the physician or pharmacy owner’s registration. In some instances, the DEA has even specifically told the client they are free to reopen.

This emerging pattern of practice likely indicates the DEA and local law enforcement are amassing documents and information to later be used for mass indictments in federal and state criminal courts. The Houston District Attorney’s office has recently suffered several setbacks in their prosecution of pain management / non-therapeutic prescribing cases. These loses probably heralded the current shift of tactics and more careful preparation of cases prior to filing. The DEA may also be looking to pursue more widespread administrative revocation of perceived wrong-doers’ controlled substances registrations.

Regardless of the meaning or implications of this change, any physician or pharmacist who is raided by the DEA should immediately contact an attorney with experience representing clients accused of non-therapeutic prescribing/dispensing in both the criminal and administrative arenas. These cases are pursued zealously by the applicable agencies and usually involve a multi-front assault criminally through state or federal court and administratively through the person’s controlled substances registration and applicable state licensing board.

Moreover, a physician, pharmacist, or mid-level practitioner should not surrender their controlled substances registration prior to consulting with an attorney. The DEA’s raids are designed to intimidate and many practitioners make the mistake of buckling to the government’s threats and surrender their certificates. This is a reflexive request on the part of the DEA and does not actually mean the person has done anything wrong or that the government has a good case. Additionally, even though my firm has been very successful in obtaining the reissuance of clients’ surrendered controlled substances registrations, the reinstatement process is onerous and time-consuming and the intervening damage to the client’s medical practice or pharmacy can be devastating.  

Any physician or pharmacy who has been raided by the DEA should immediately contact an attorney, preferably during the actual raid. You have the right to speak to attorney prior to providing a statement or making any decision concerning your certificate. The stakes are very high in these cases and a successful outcome is often dependent on securing competent counsel at the earliest possible stage.     

 

As the Texas physician shortage continues, more and more physicians from foreign countries are coming to the state to meet the shortfall. This blog post describes how the Texas Medical Board and legislature have limited the geographic locations in which foreign physicians can practice. This post also discusses the constitutional implications of the law given that it allows the Board to discriminate against foreign physicians.

In 2011, the Texas legislature amended the Medical Practice Act to require that foreign physicians who were neither US citizens nor permanent residents (green card holders) work in a Medically Underserved Area for three years, or promise to so work, in order to qualify for a Texas medical license. The law does not affect current license-holders, physicians who have practiced at least one year prior to September 1, 2012 on a Texas Physician-in-Training permit, or physicians who submitted their applications for full licensure prior to September 1, 2012. Other foreign physicians not subject to one of the foregoing exceptions are subject to the new law.

The main effect of this law is to force physicians in the United States on an H-1B work visa to practice for three years in a Medically Underserved Area. Medically Underserved Areas (MUAs) are designated by the United States Department of Health and Human Services and administered in Texas by the Texas Department of State Health Services. MUAs are areas which suffer from a significant shortage of personal health services and are determined according to a formula weighing a geographic location’s poverty and infant mortality rates, the percentage of elderly population, and the ratio of primary care physicians. Many rural counties in Texas have been designated as a MUA as have certain disadvantaged areas in large cities such as San Antonio.

The law is primarily designed to impose the same rules on a foreign physician coming to Texas under a H-1B visa as those applicable to an individual coming to Texas pursuant to a J-1 visa. Foreign physicians coming to the United States to do their residencies usually enter on either a J-1 or an H-1B work visa. Under the federal laws, the J-1 visa allows a physician to do his residency, but at the end of his stipulated time he must return to his country of citizenship and stay there for two years. He is not eligible to seek green card status. However, if the physician elects to work in a MUA, they can receive a waiver and have their status adjusted to H-1B status without having to leave the US and face the 2-year residence abroad requirement. The physician is also then allowed to apply for a green card.

Under federal law, a physician who initially enters on an H-1B does not have to face these burdens. They are eligible to petition for a green card without a break in their stay and employment in the United States. Nor does such a physician have to obtain a waiver by working in a MUA. 

The new Texas law forces a H-1B physician to work in a MUA just as her J-1 counterpart would by making practicing in such an area a mandatory requirement for licensure. It is certainly interesting that the Texas Medical Board is now effectively pursuing immigration policy and determining where a foreign physician can geographically work. There is no claim being made that the H-1B physicians are inferior and so demand more scrutiny than American citizens. In fact a contrary inference may be drawn since it is mandated that the H-1B physician provide care for some of the most medically vulnerable populations in Texas. Moreover, most H-1B foreign physicians will have completed a residency program in Texas. Thus, the Texas law is not in place to protect the public from foreign physicians. The law is merely a way of ensuring that H-1B physicians take jobs in areas no American physician wants to go to—the MUA.

It is also likely possible this new law would have an overall negative impact on the number of new physicians coming to Texas to practice by discouraging the immigration of foreign doctors. If the only way for a foreign physician to practice in Texas is to do so in a MUA (an area which by definition has, for whatever reason, not proven attractive to Texas physicians), they may very likely simply go to another state following their residency in Texas. In effect, Texas health resources spent training new physicians will ultimately go to benefit other states.

It is also important to keep in mind that a foreign physician in the country on a H-1B visa cannot open their own practice, even in a MUA. They can only work for a sponsoring employer. Accordingly, foreign physicians are being forced to find a pre-existing physician practice in an area which is designated a MUA precisely because there is already severe shortage of physicians. It is unclear how areas which are already struggling to economically support a basic health care structure are going to integrate an influx of foreign physicians.

Continue Reading New Law Restricts Texas Foreign Physicians’ Practice To Medically Underserved Areas

 

As tuition at US medical schools continues to increase at an astronomical rate, more and more aspiring doctors are looking abroad, particularly to the Caribbean, to pursue their medical degrees.  Moreover, due to the shortage of physicians in the United States the country needs more physicians from other countries.   Both sets of medical graduates of foreign medical schools face challenges when they seek licensure in the United States. This post particularly describes the additional burdens faced by graduates of foreign medical schools as they seek licensure in Texas. 

The Texas Medical Board regulates the practice of medicine in the State of Texas. This includes determining licensure requirements for medical school graduates. Part of this determination requires verifying that the graduate met certain minimum requirements during the course of their medical education. While such a verification for graduates of United States medical schools are relatively easy—the Board relies on the Liaison Committee on Medical Education and American Osteopathic Association Bureau of Professional Education to approve those schools—the verification of foreign medical schools is a much more cumbersome process. It should be noted that the process described here is independent of citizenship status—i.e. the vetting process for foreign medical schools is the same regardless of whether the foreign medical school graduate is a United States citizen or a citizen of another country.  

The verification process first begins with a degree equivalency determination. The foreign medical graduate (FMG) must get their credentials evaluated by the Educational Commission for Foreign Medical Graduates (ECFMG), a non-profit organization that deals with determining the equivalency of foreign medical degrees. ECFMG will weigh the foreign transcript and grades and convert the coursework into an equivalent for a US school. If ECFMG determines that the degree received is equivalent to a US Medical degree then it will award the FMG a certificate saying so. ECFMG may find that a foreign medical degree is equivalent to a US medical degree even if that degree is a baccalaureate one. Obtaining a certificate from ECFMG is also required before the foreign medical school graduate may sit for the United States Medical Licensing Examination (USMLE), which is the standard medical licensing examination in the United States. 

However, a certificate from the ECFMG is only a starting point for the foreign medical graduate. The Texas Medical Board further requires that the foreign medical graduate show that the school itself rather than just the coursework is substantially equivalent to a Texas medical school. Such a determination requires documentation of:

  • a Foreign Educational Credentials Evaluation from the Office of International Education Services of the American Association of Collegiate Registrars and Admissions Officers (AACRAO) or an International Credential Evaluation from the Foreign Credential Service of America (FCSA), or another similar entity as approved by the board;
  • a board questionnaire, to be completed by the medical school and returned directly to the board;
  • a copy of the medical school’s catalog;
  • verification from the country’s educational agency confirming the validity of school and licensure of applicant;
  • proof of written agreements between the medical school and all hospitals that are not located in the same country as the medical school where medical education was obtained;
  • proof that the faculty members of the medical school had written contracts with the school if they taught a course outside the country where the medical school was located;
  • proof that the medical education courses taught in the United States complied with the higher education laws of the state in which the courses were taught;
  • proof that the faculty members of the medical school who taught courses in the United States were on the faculty of the program of graduate medical education when the courses were taught; and
  • proof that all education completed in the United States or Canada was while the applicant was enrolled as a visiting student as evidenced by a letter of verification from the U.S. or Canadian medical school.

Continue Reading Texas Medical Licensure for Physician Graduates of Overseas Medical Schools

In 2010, the Texas Legislature created the Texas Physician Health Program (PHP), effectively shifting the oversight of licensed Texas physicians with substance abuse disorders and mental illness from the Texas Medical Board to a program uniquely tailored to monitor those issues. Responsible in part for the success of this idea is the sentiment that physicians generally do not like dealing with the Medical Board, and are not keen on self-reporting substance abuse issues to the Medical Board or being candid about mental health problems. The PHP, while not entirely independent from the Medical Board (PHP is administratively linked to the TMB), was intended to provide a more attractive option for those physicians who needed the oversight and the help that PHP would provide. In the 2+ years since its creation, the PHP has largely been successful, and certainly is still preferable to the Medical Board’s investigative and disciplinary process in many instances. However, there are certain types of “substance-related” cases in which a referral to the PHP is not appropriate, and a physician would be better served to hire an experienced professional license defense attorney and take the case to the Medical Board, seeking dismissal. Simply put, a one-time arrest and conviction for DWI or Public Intoxication does not justify a long-term PHP contract aimed at facilitating recovery. 

The PHP is not typically appropriate in instances where the physician has had a one-time substance-related arrest, but no substance abuse diagnosis. However, we frequently encounter physicians who have been arrested for one-time instances of DWI or public intoxication and are subsequently offered participation in the PHP in lieu of Medical Board action. Oftentimes, the offer of PHP contract will have been given before the DWI case is even criminally adjudicated. For a physician that does not seek the proper legal guidance, that one-time DWI arrest will result in a 5-year PHP contract, where the physician is subjected to terms that likely include substance abuse treatment, Alcoholics Anonymous attendance, drug screening, and possibly practice restrictions. While a confidential PHP contract that offers that level of structure is probably appropriate for a physician with a diagnosed substance use disorder, it is not appropriate for the physician who made a highly regrettable, one-time decision to drink and drive. Additionally, it is very difficult for anyone to stay compliant with a 5-year PHP contract when there is no actual substance abuse disorder- the terms of the order start to look very arbitrary. Moreover, there will be lifelong consequences with credentialing and applications for privileges. 

The alternative to a PHP contract is the perceived threat that the physician’s case will be forwarded to the Medical Board for investigation and possible disciplinary action. Contrary to common misperceptions, that is often the preferable scenario in this instance. The Medical Board does not have the power to discipline a physician for a one-time arrest and conviction of DWI, and as long as that DWI does not lead to evidence that the physician may have a substance abuse problem, the Medical Board must dismiss the case (Tex. Occ. Code § 164.051(a)(2)). The physician will probably be investigated and invited to participate in an Informal Settlement Conference with the TMB, but an experienced administrative law attorney should be able to guide them through the process without receipt of any discipline. The professional license defense attorneys of the Leichter Law Firm have been very successful in getting these cases dismissed.

If you are a physician, physician assistant, or other licensee of the Texas Medical Board, and you have been offered a PHP participation contract in response to a one-time substance-related arrest, do not hesitate to contact the experienced administrative law attorneys of the Leichter Law Firm. Even if you have not yet been contacted by the TMB or the PHP regarding your substance-related arrest, it is advisable to contact us at 512-495-9995 for a free consultation.       

 

Since the summer of 2011, the Texas Medical Board has been considering adopting a new rule applicable to non-surgical, cosmetic procedures such as Botox or dermal filler injections. The proposal would create new standards and requirements applicable to physicians who perform or delegate the performance of such procedures. Currently, this area is covered by Chapter 157 of the Medical Practice Act which governs a physician’s ability to delegate the performance of medical acts to a non-physician. This includes a person who is not licensed, such as a medical assistant, and individuals who are licensed but are not allowed to diagnose illness or create a treatment plan, such as a cosmetologist.

Underlying the Texas Medical Board’s initiative is a concern that physicians have not been exercising sufficient control and supervision over the unlicensed persons performing delegated non-surgical, cosmetic medical acts. This includes allowing an unlicensed person to determine the need for the cosmetic procedure as well as deciding how this procedure was to be performed- i.e. how many Botox units to use and the selection of injection sites. In the reports submitted to the Board Committee drafting the new rule, Medical Board Staff have argued that this constitutes the unlicensed practice medicine.

Prior to the initial stakeholder’s meeting weighing in on a proposed rule, the attorneys at my firm had represented a physician who had delegated filler injections to a medical assistant. The Board invited our client to an informal conference to address allegations that this constituted improper supervision and delegation. Based on our argument that the physician’s actions were proper under Chapter 157’s delegation provisions, the Texas Medical Board closed the case and convened the stakeholder’s meeting.

The current version of the proposed rule would supplement the present requirements for physician delegation found in Chapter 157. The main change is a mandate that any patient receiving a non-surgical, cosmetic procedure must first be assessed and examined by the physician or, in the alternative, a midlevel practitioner acting under the delegation of the physician. The physician or midlevel practitioner is then responsible for establishing a diagnosis, obtaining the patient’s informed consent, and preparing a treatment plan. Under the present law, a non-physician can arguably perform many of these functions as long as it is closely delineated by standing delegation orders and protocols developed by the physician.

The Texas Medical Board’s proposed new rule also requires that either the physician or a midlevel practitioner be on-site during the performance of any delegated procedures. Additionally, the supervising physician is required to develop and maintain detailed protocols governing their delegates and must also create a quality assurance program satisfying various criteria. Importantly, the proposed rule makes clear the physician retains ultimate responsibility for the safety of the patient and the proper performance of the procedure.  

Several exemptions are located in the rule: These include laser hair removal performed in accordance with the Texas Health and Safety Code, the use of nonprescription devices, surgery as defined in the Medical Practice Act, and procedures performed by midlevel practitioners at their supervising physician’s primary practice site.

Although the rule has not yet been accepted by the Medical Board, I anticipate it will eventually be adopted. This has been a hot topic lately and it is clear the existing law is not satisfactory to both the Board’s Members and Staff. Physicians and unlicensed individuals performing these types of procedures need to be aware of the new rule and poised to ensure they are in compliance when and if it is enacted.

The Texas Medical Board aggressively pursues perceived violations in this area and I would only expect this to increase should the rule be adopted. My firm recently represented a licensed cosmetologist who was issued a Cease and Desist Order by the Board based on their belief my client was practicing medicine in the course of providing Botox injections due to inadequate oversight by her supervising physician. Attorneys at the Leichter Law Firm filed an appeal against the Order and the Texas Medical Board agreed to rescind it based on inadequate notice to our client. Currently, the matter is expected to proceed to a new cease and desist hearing.

Physicians and their delegates concerned about remaining in compliance with both the current law and proposed new rule should feel free to contact the Leichter Law Firm at 512-495-9995. We have assisted several other clients in this area some of which faced active cases with the Texas Medical Board and others who only wanted to ensure their protocols and procedures passed muster.

 

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. 

 

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 Criminal Prosecution of Pain Management Physicians by State and Federal Law Enforcement is on the Rise

 

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 Texas Medical Board’s Remedial Plan -is it really a non-disciplinary order?