Over the last few years substantial momentum has been steadily building on both the administrative and criminal fronts against physicians whose practice primarily or substantially involves pain management and the pharmacists who file their prescriptions. In many instances, this governmental clamp down is fully justified as every pharmacist and physician familiar with this practice area is well aware of the significant problem associated with the non-therapeutic prescribing of powerful narcotics and other controlled substances. Tragically, many physicians and pharmacies who provide legitimate pain control have also been captured in this ever-widening net. The consequences can be severe and can include the loss, restriction, or temporary suspension of the individual/entity’s state license, loss of a physician’s DEA and DPS controlled substances registrations, substantial monetary fines, and even criminal prosecution.   

As an attorney who has defended numerous physicians, pharmacists, and pharmacies in both state and federal administrative and criminal actions, it has been my impression that the pace of this clamp-down has only increased. I hope to write a series of articles detailing different aspects of non-therapeutic prescribing/dispensing cases and what practitioners and pharmacists can expect should they be unfortunate enough to be targeted under this or a related claim. This article will focus on the combined state-federal task force presently sweeping Texas to shut-down so-called "pill mills." 

The Pill-Mill Taskforce:

The expression “pill-mill” is becoming an increasingly recognizable term to the general public due to investigative journalistic pieces done by national news outlets like 20/20 and CBS News. A true pill-mill is typically comprised of a network of dubious physicians and pharmacists that dole out controlled substance prescriptions to individuals, based not on medical necessity, but on their cash value on the street.

Along with growing media exposure came the realization by government regulators and law enforcement officials that much of the pill-mill activity in Texas is based in Harris County. In response, a taskforce of interested state and federal agencies and law enforcement entities was formed to combat non-therapeutic prescribing in the Houston area. The taskforce includes members of the federal Drug Enforcement Agency (DEA), the Texas Medical Board (TMB), the Texas State Board of Pharmacy (TSBP), and local law enforcement. The taskforce has been very aggressive in pursuing and sanctioning Houston pain management clinics and pharmacies. As discussed above, the consequences can be severe and extend all the way to convictions for serious felony offenses.  

Targeted Physicians and Pharmacies:

The joint task force uses several different methods to select targeted practitioners and dispensing pharmacies. These include utilizing databanks maintained by the DEA to pull down the largest prescribers and dispensers of certain medications within a given county. The task force also refers to the list of pain clinics which were required to register with the Texas Medical Board following the last Legislative session. Other red flags include all-cash transactions, high numbers of daily patients, large or atypical numbers of narcotics and other targeted medications, frequent use of the pain cocktail of Soma, Xanax, and Hydrocodone.

Once targeted, a physician or pharmacy is immediately placed on the defensive as they face a coordinated assault by law enforcement officials, the DEA and DPS, as well as the applicable state licensing agencies. These investigations are accusatory in nature and generally proceed on the presumption that the individual/entity is engaged or participating in non-therapeutic prescribing. Oftentimes the first indication that an individual has been targeted will be an armed raid of the person’s practice or pharmacy and the seizing of their prescription or dispensing records. The physician or pharmacist may be asked on the spot to sign a statement or affidavit connected with the allegations or asked by the DEA or DPS to surrender their controlled substances registration.

Again, it bears reminding that the sudden arrival of the task force may only be because the targeted entity showed up high on the DEA’s records on the volume of narcotics prescribed/dispensed or some other such indication which, by itself, has little bearing on whether or not such prescriptions are for a legitimate therapeutic need. I have represented several physicians targeted by the task force despite their having in place rigorous safeguards and practices designed to ensure that all prescriptions are for legitimate medical conditions and taken only at a therapeutic dose.

This task force represents the leading edge of regulatory pushback at what has increasingly been identified as a widespread problem: physicians and pharmacies who fuel prescription drug abuse by persons who lack a legitimate medical need. The problem is that this combined dragnet continues to ensnare numerous physicians and pharmacists who provide genuine and legitimate pain relief to Texas patients.   

Any physician or pharmacist contacted or raided by the joint task force or any of its individual members should seek legal representation immediately. If you are raided by the task force you should contact an attorney on the spot and refrain from giving any oral or written statement, signing any documents, surrendering your license or controlled substance registration, or acquiescing to any demand without first seeking legal counsel. The stakes are very high and a mistake could permanently prejudice your ability to defend yourself.

 

Discipline at the Texas Medical Board (Board) is a complaint driven process- meaning that every investigation opened by the Board’s investigators results from the filing of a complaint. The Board receives roughly 6,000 complaints each year, and they come from various sources, including patients, subsequent providers, competitors, former employees, and even the Board itself. Essentially, anyone can file a complaint with the Board, and the Board is required by law to investigate it. 

According to Board rule 178.4(c), the complainant’s identity and the complaint itself are expressly confidential as part of the Board’s investigative file, unless the complainant signs a waiver of their confidentiality. A complaint can, therefore, be filed against a physician without the physician knowing the identity of the complainant. 

The anonymous complaint process unfortunately makes it easy for a bad-faith complainant to use the Medical Board’s disciplinary process to attack other physicians whether they are rivals to the complainant’s practice or have a former employment relationship. Both in my own practice and through discussions with other attorneys, I have encountered other instances where a complaint appears to have originated from an insurer seeking to use the Board as leverage in a payment or coverage dispute with a physician. I have personally been involved in cases where an anonymous complaint originated from a disgruntled spouse. In any case, the Board’s anonymous complaint process generally immunizes the complainant from scrutiny or consequences should a complaint be filed in bad faith. Additionally, without their identity, the targeted physician is often precluded from presenting clear evidence of bad-faith or motive on the part of the complainant. Moreover, because anonymous complaints frequently originate from persons with a medical background who are also familiar, sometimes intimately so, with a licensee’s practice, they can be crafted in such a way to cause significant damage to the target physician.  

The political process has thus far provided no relief from the anonymous complaints process. Two bills have been introduced in the Legislature to change the complaint process and make it more transparent. The Bills, House Bill 3816 introduced and presented to the 81st Legislature and House Bill 1013 presented to the 82nd, would have made it impossible for the Board to accept anonymous complaints. The Bills would also have provided physicians better protection from Board claims of inadequate documentation and would prohibit Board discipline for incidents that occurred more than 7 years ago and for documentation errors that did not endanger the patient. To date, neither Bill has been passed, and so the concerns about anonymous Board complaints continue. 

If you have received a complaint letter or investigation letter from the Board, it is in your best interests to consult with an attorney to best evaluate your options. This is all the more so if you believe the complaint may have been filed in bad-faith as it has been my experience that these often come in a series with each subsequent complaint becoming increasingly difficult to address.

In 2010, the Texas Medical Board (Board) implemented a new disciplinary mechanism- the Corrective Order. Briefly, a Corrective Order is a disciplinary Order that is offered to physician  licensees before any other informal proceedings take place, with the apparent goal of settling those cases quickly, and in lieu of proceeding with an Informal Settlement Conference (ISC). 

Corrective Orders are not offered in every legal case, but rather at the discretion of the Board’s Quality Assurance Committee (QA), which is made up of a mix of Board members, District Review Committee members, and Board attorneys and other staff. Typically, Corrective Orders are offered in cases where the alleged violations rise above the ministerial discipline of the Fast-track Order, but where the factual issues are straightforward enough that QA feels they do not necessarily require a hearing.

 If the licensee signs the Corrective Order, the ISC is taken off the schedule, and the Order goes to the full Board for approval and resolution. If the licensee declines the Corrective Order, then it is taken off the table and the case is looked at afresh at the ISC. Typically, the licensee is given 20 days to decide whether to sign it or not.    

Each time a Corrective Order is signed, the Board benefits in several ways. Each signed Corrective Order helps the Board’s disciplinary numbers and reinforces the viewpoint that they are actively and successfully protecting the public’s health and welfare. Additionally, each Corrective Order that is signed means that the Board will not have to devote further resources to the investigation and informal settlement process which involves the development of a case file by the TMB Staff attorneys and legal assistants.   The benefit to the licensee is not always as clear cut. 

Upon receipt of a Corrective Order, there are a number of things that should be considered before deciding either way on it.

Continue Reading The Texas Medical Board’s Corrective Order Explained

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 the April meeting.  

The Leichter Law Firm is the attorney of record for at least 5 of the doctors including one who has filed a meritorious Motion for Rehearing after a denial from the October meeting of the Texas Medical Board. This is an unfortunate event for at least one-half of the applicants many of who have qualified for a full Texas medical license in every respect,  but are waiting to challenge a contention by Texas Medical Board Staff Attorneys that they have submitted false or misleading information on their physician application. As a result they can both sign an administrative order and pay a fine which results in a permanent disciplinary action on their record, or they can challenge the agency’s initial or preliminary determination and appear in front of the Licensure Committee in support of their cause/application.  As an Agreed Order of Licensure is a permanent blemish on a doctor’s record, most physician applicants asked to appear before the TMB retain experienced Texas medical board defense attorneys to represent them through the process.

The portions of the Texas Medical Board meeting which could be conducted through phone conferencing was achieved such as the processing and ratification of disciplinary orders and the discussion and adoption of guidelines for mediations of contested cases at the State Office of Administrative Hearings (SOAH). Unfortunately, all appearances before the Board were rescheduled which will result in even more work for the already busy Texas Medical Board members and Staff attorneys. Also rescheduled were all events which required live appearances or witnesses were rescheduled. 

The Board and Staff made the decision to cancel early on Tuesday which buy first impressions seemed premature. As the weather developed and snow, freezing temperatures and ice invaded the Austin and central Texas area it became clear that a wise decision was made –albeit to the disappointment of all of the physician applicants scheduled to appear. 

 

Like most health licensing boards, the Texas State Board of Pharmacy possesses extensive authority to discipline pharmacists and pharmacies for violations of their enabling statute, the Texas Pharmacy Act. This includes criminal matters, negligent practice, fraud and deceit, suspected substance abuse/dependency, and anything the Board determines falls within the broad and ill-defined ambit of unprofessional conduct. Unlike most Texas medical licensing boards, however, the Pharmacy Board is also authorized to discipline pharmacists for violating another state’s law pertaining to drugs or the practice of pharmacy. This grant of jurisdiction is expansive and raises unique regulatory pitfalls for Texas pharmacists whose practice reaches into other states or who hold licenses in multiple jurisdictions.

Normally, before a Texas licensing board can impose discipline on a licensee for violations of another state’s law, the licensing board in the subject jurisdiction must have already entered a disciplinary order in their state. In this event, the Texas board, including the Pharmacy Board, can then discipline the licensed professional in Texas through their reciprocal discipline statute. Through reciprocal discipline the Pharmacy Board need only present the foreign order and is not required to separately prove up the underlying allegations. The same almost always holds true in any other states where the pharmacist or medical professional is licensed. This is one of the primary problems facing a Texas medical professional holding licensure in multiple states: an order in one state can cause a cascade effect of similar disciplinary actions in the other jurisdictions were they are licensed. 

The Pharmacy Board’s disciplinary statutes go even further, however, and authorize discipline for a violation of another state’s laws even in the absence of any action by the other state. As an example, my firm recently represented a compounding pharmacy located in Texas which sold medications to practitioners located throughout the country. This pharmacy, which initially was not licensed in any other jurisdiction, was investigated and subsequently disciplined by the Texas Pharmacy Board due to their lack of the proper non-resident pharmacy permits required in many of these other states. This was despite the fact none of these other states had taken any action against the pharmacy nor were there any indications they planned to do so even after my client had made them aware they had ostensibly been in violation of their regulations. The pharmacy has now been subjected to a disciplinary order in Texas which it will need to report to all the other states in which it has or will soon be licensed. The end result could easily be a series of orders and fines in other jurisdictions pursuant to each state’s reciprocal discipline statute. This is all because Texas elected to punish this pharmacy due to its failure to adhere to the law in other states even when such states had declined to impose discipline.

As can be seen above, this far-reaching grant of authority permits the Texas Pharmacy Board to essentially be the enforcer of other state’s law and can have serious consequences to Texas pharmacists and pharmacies. Every licensee actively or merely planning to conduct business in another state would be well advised to ensure adherence to the other jurisdiction’s laws pertaining to drugs and pharmacy. At a minimum this should involve consulting with an attorney to investigate whether licensing or out-of-state permitting is required by the other state. Failure to do so can lead to an otherwise avoidable disciplinary order in Texas, likely a significant impediment to the continued expansion of your business.

 

The Texas Board of Nursing has recently created and implemented a new, confidential procedure in which to resolve disciplinary investigations. Typically, the Nursing Practice Act limits the Board’s discretion to resolve a case through anything other than a public Order. In a welcome innovation, the Board now has the authority to settle a restricted set of cases involving minor violations of the Nursing Practice Act through a confidential, non-disciplinary corrective action procedure.

Eligibility for a corrective action plan is limited and at the sole discretion of the Nursing Board’s Executive Director. A nurse may be eligible to have their case resolved through a  corrective action proceeding if this is the first time they are being charged with one of the following violations:

  • Practice on a delinquent (expired) license for more than six months but less than one year;
  • Failure to comply with continuing competency requirements;
  • Failure to verify licensure/credentials of person for whom nurse is administratively  responsible;
  • Failure to provide complete and accurate answers to the Board, your employers, or potential employers about matters like your employment history, licensure history, or criminal history;
  • Failure to comply with Board requirements for change of name/address;
  • Failure to develop, maintain, and implement a peer review plan according to peer review requirements; and
  • Failure of an advanced practice registered nurse to register for prescriptive authority in an additional role and population focus area.

See 22 Tex. Admin. Code § 213.32(2)

There are several benefits to receiving a corrective action plan as opposed to a normal disciplinary order. These include:

A nurse is typically ineligible for a corrective action plan if they have committed more than one of the violations listed above. Id. at § 213.32(3). Moreover, if a case has already progressed to a contested case hearing at the State Office of Administrative Hearings, the Executive Director no longer possess the discretion to resolve a matter through corrective action.

  1. Not Disciplinary Action: Corrective Action is not considered disciplinary action. 22 Tex. Admin. Code § 213.32(1);
  2. Limited Penalty: The penalty may only be a fine, remedial education, or any combination thereof. See Tex. Occ. § 301.652(a)(1). Should a fine be imposed the amount for first time offenders is $500. 22 Tex. Admin. Code § 213.32(3). Hence a nurse doesn’t have to worry about having their license revoked or suspended or being subjected to a period of monitoring by the Board;
  3.  Finality: Once the nurse accepts the corrective action the case is closed. Tex. Occ. Code § 301.655(a);
  4. Greater Confidentiality: The corrective action is not public information unlike an agreed order or a formal hearing. Tex. Occ. Code § 301.652. As a result it is not subject to public disclosure, does not appear in the Board’s Newsletter, nor is it reported to the Healthcare Integrity and Protection Databank;
  5. Non-Admission of Guilt: A person’s acceptance of corrective action does not constitute an admission of a violation but only constitutes a plea of nolo contendere. Tex. Occ. Code § 301.657. However, if the board imposes a sanction on the person for a subsequent violation then it may treat a person’s acceptance of corrective action as an admission of a violation. Id.

It is important to note that the Legislature has included a provision within the authorizing statute requiring that the nurse accept an offer of corrective action within twenty days of receiving the proposed resolution from the Board, otherwise the Executive Director will have to pursue the complaint via the normal investigation process which could end with a public disciplinary action. Tex. Occ. Code §§ 301.654, 301.655.

As an attorney who represents numerous nurses before the Texas Board of Nursing each year, I view this as a positive initiative which should prevent relatively minor disciplinary issues from resulting in a potentially embarrassing public order. In fact, if anything, I feel the Board of Nursing could benefit from even greater authority to resolve cases through the kind of confidential order/process that is available to other state licensing entities such as the Texas State Board of Pharmacy and the Texas Medical Board through the new Physician Health Program.

The corrective action procedure has been especially helpful in my own practice for cases involving a nurse’s isolated failure to disclose minor criminal history on a licensure or renewal application. In the past, this could only be resolved through a public remedial education order which would remain on a nurse’s record indefinitely and be published in the Board’s Newsletter.

Any nurse with an active investigation with the Texas Board of Nursing would be well advised to consult with an attorney as to whether or not their case may be eligible for resolution through a corrective action plan. As stated above, this is an opportunity which can disappear once a case has proceeded to an advanced stage leaving a nurse with a limited choice between either litigating their case to its conclusion or accepting a public disciplinary order even if the Board’s allegations are of a de minis character.

 

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 and filing in the blanks of areas which the Legislature has order them to regulate. These rules cannot conflict with the statute, however, and are, in fact, subordinate to it. Thus, if the Legislature did not give them the power to regulate a particular activity, the Boards generally cannot expand their jurisdiction to regulate that activity by adopting an administrative rule. Problems arise, however, when the statutes are imprecise or vague in limiting the Boards’ powers.

 

Given the multitude of laws instituted by our Legislators, imprecise and vague definitions are bound to crop up. Such is the case with the term “unprofessional conduct.” As an example, the Medical Practice Act allows the Texas Medical Board to discipline its licensees if they commit “unprofessional or dishonorable conduct that is likely to deceive or defraud the public, or injure the public.” Tex. Occ. Code 164.052(a)(5). Note that there need not be any actual harm done. While the statute goes on to give some guidance as to what conduct deceives or defrauds the public (Tex. Occ. Code 164.053) it gives us no definition of what constitutes unprofessional or dishonorable conduct that is likely to injure the public. 

 

Similarly, the Texas Board of Nursing is allowed to discipline nurses for unprofessional or dishonorable conduct that, in the board’s opinion, is likely to deceive, defraud or injure a patient or the public. Tex. Occ. Code 301.452(b)(10). Likewise, the Texas State Board of Pharmacy can discipline its licensees for both unprofessional conduct and gross immorality. Tex. Occ. Code §§565.001(a)(2)-(3). Troublingly, the Legislature appears to have left it in the hands of the Pharmacy Board to determine the definition of unprofessional conduct and gross immorality. 

 

How do the licensing Boards use this power? The Boards have frequently used this provision as a hook to discipline licensees over whom they would otherwise have no statutory power. For example, the Medical Board is explicitly allowed to discipline licensees for convicted misdemeanors if the misdemeanors can be related to their practice as a physician (Tex. Occ. Code § 53.021(a)(1)) or involve “moral turpitude” (Tex. Occ. Code § 164.051(a)(2)(B)). Moral turpitude is another vaguely defined term; it is generally implicated in crimes involving fraud or deceit but is otherwise difficult to characterize and apply. Regardless, by classifying other misdemeanors as “unprofessional conduct”, however, the boards can extend their powers beyond the limits set by the Legislature.

 

The Board of Nursing, which is subject to similar statutory restrictions, has labeled “unprofessional conduct” such misdemeanors as possession of an unlicensed firearm, criminal mischief, obstruction of a highway, and criminal trespass, none of which are a crime relating to the practice of nursing or classified as an offense of moral turpitude. I have also encountered cases where the Board was reluctant to license an individual or wished to impose discipline based on conduct which is not even criminal, such as a client’s former employment as a stripper or a person’s private conversations on an internet social networking site. Furthermore, I have seen multiple situations where a client is being pursued due to what is essentially an employment dispute, such as lying on an initial application, an area over which the Board involved likely has no jurisdiction.  

 

In conclusion, licensing Boards frequently utilize this method as a means to expand their jurisdiction beyond their enabling statutes. “Unprofessional conduct” is used as a pretext to regulate licensees for activities that do not involve the licensed occupations at all. If you are facing an investigation or disciplinary matter before a state agency and feel the basis of their action has no relationship or bearing on your license or practice, you very well may be right and would be wise to contact an attorney familiar with the respective Board’s statutes and disciplinary process.

My law firm has recently represented several LPC-Supervisors and LPC-Interns before the Texas State Board of Examiners of Professional Counselors (TSBEPC) in reference to avoiding or defending against charges that a LPC-Intern is operating an independent counseling practice while earning the 3,000 supervised experience hours necessary for full licensure. The recurrent problem has been that outside a handful of Board Rules, TSBEPC has provided little to no public guidance on how they interpret and apply the bar on LPC-Intern’s operating an independent practice. As a consequence, both LPC-Interns and their LPC-Supervisors have unwittingly become the target of a Board investigation and subsequent disciplinary action.

Board Rule 681.52, located in Title 22 of the Texas Administrative Code, clearly enshrines the fact that “An LPC Intern may not practice within the Intern’s own private independent practice of professional counseling.” The same Rule goes on to specify that an LPC-Intern cannot directly receive payments by a client, client records are not the property of the intern, an LPC-Supervisor cannot be the employee of an Intern, and finally, all billing documents and advertisements must reflect that the LPC-Intern is an intern pursuant to a temporary license and list the intern’s LPC-Supervisor. Outside the above, no further guidance is given to LPC’s as to how to set up a proper LPC-Intern – LPC-Supervisor relationship or what constitutes an independent private practice.

This would be fine except the LPC Board has a particularly idiosyncratic interpretation of this Rule and this includes enforcing requirements that are nowhere apparent on the face of the applicable rules. For example, LPC-Interns and Supervisors need to be aware that according to TSBEPC, LPC-Interns are not allowed to rent- out of their own pocket- office space where they will see clients even if it is in a supervised capacity. In other words, LPC-Interns are expected to see clients in an office space that is provided/rented by their Supervisor or which is rent-free- such as unpaid work at a local mental health center for the disadvantaged. 

LPC-Interns are also not supposed to have a Tax ID number even if such a number is retained solely for tax purposes and they are otherwise in conformance with TSBEPC requirements, such as the rule barring the receipt of payments directly from clients. Likewise, the Board appears to believe that LPC-Interns cannot file reimbursement claims with an insurer even if it is a joint filing with their Supervisor and the insurance provider requires that, as the person who provided the counseling services, the Intern must be including in the claim. TSBEPC also maintains that LPC-Intern’s advertising on the Psychology Today databank must include “LPC-Intern” in their profile even though this is usually difficult to accommodate due to the way the website is arranged. Shortened versions like “LPC-I” or “LPC-Int” are not in compliance.

None of the above requirements are necessarily objectionable or unreasonable in and of themselves; the problem is that no one is aware of them unless they have already been actively investigated or disciplined by TSBEPC or know someone who has. The LPC Board needs to either adopt supplemental rules or publically issue guidelines placing LPC-Interns and Supervisors on notice of these interpretations. Otherwise, TSBEPC is simply creating an unnecessary backlog of complaints and licensees are being subjected to investigation and possible discipline based on unpublished mandates.

More importantly, any attempt by TSBEPC to discipline licensees due to such unwritten requirements is likely illegal and arbitrary and capricious under basic principles of administrative law. Unfortunately, an LPC has no easy means to force the Board to apply its rules as they presently exist until they are already far entangled in the complaint and disciplinary process. A subjection of these official but unwritten requirements to the rulemaking process would also allow the Board and stakeholders to come together and find whether such rules are even realistic or practical. As an attorney involved in several of these cases, I have been informed that the Board’s understanding, particularly as to the renting of office space by LPC-Interns, is in direct conflict with what has been the widespread practice among Supervisor and their Interns for many years.

Regardless, it is the LPC-Interns who typically have the most to lose. I have seen the Board prevent an Intern from earning their full license or even disallow thousands of supervised experience hours due to a perceived technical violation of the above unwritten interpretations of Board rules. Anyone who is being pursued by the Board for these type of complaints or who is merely unsure whether or not their practice is set up correctly would be wise to contact an attorney familiar with the LPC Board’s disciplinary practices. Otherwise, a licensee could find themselves involved in a disciplinary matter which could have easily been avoided.

The Licensure Committee of the Texas Medical Board (TMB) met at its last scheduled meeting on Thursday August 26, 2010. The Committee heard approximately 39 applicants who were on the agenda in conjunction with their applications for a full Texas medical license / physician registration or a physician-in-training permit (PIT). Due to the size of the agenda the Licensure Committee divided into two sub panels. The meeting began at 8:30 am as opposed to the customary 10:30 am or 12:00 noon start times of previous meetings. A Texas Medical Board attorney was assigned to each sub-panel to serve as advisory counsel to each sub-committee.  

The typical issues involved in Texas Medical Board licensure cases were heard which included:

  • Issues relating to the provision of false or misleading information on the application concerning academic probation or criminal history;
  • Eligibility issues relating to criminal history and good professional character;
  • Discipline by peers including residency programs and/or medical schools;
  • Clinical competency concerns due to malpractice history;
  • Inability to practice due to intemperate use of drugs or alcohol or a history of substance abuse / chemical dependency relapse;
  • Inability to safely practice medicine due to a physical or medical condition;
  • Time out of the clinical practice of medicine;
  • A combination of any of the above.

About one-half of the applicants were represented by attorneys. Our firm’s physician licensing lawyers represented four applicants and all were granted their full Texas medical license or physician in training permit. In general the applicants fared better than the last meeting, but there were a number of denials and determinations of ineligibility. A review of these determinations and the minutes associated with each allow for the conclusion that it is necessary to pre-file rebuttal material with Staff well in advance of the meeting and for each doctor to have a good plan of attack for their few moments in the spotlight. 

If you are a physician and are faced with the reality of going before the Texas Medical Board in conjunction with your application for a Texas medical license representation from an experienced Texas physician licensing attorney may help make the difference between the granting of your license and a license denial. Please feel free to call the Leichter Law Firm for a free consultation regarding your physician licensing case with the Texas Medical Board -512 495-9995.

 

In its last session the Texas Legislature passed a new law concerning Pain Management Clinics. The law, which becomes effective on September 1, 2010, makes it illegal to own / operate a Pain Management Clinic in Texas without first obtaining a certificate from the Texas Medical Board. Although it appears benign enough at first blush, upon closer review of its certification requirements the law’s fairly draconian nature comes into focus.

The new law bars individuals and entities from certification in any of a long list of circumstances. To summarize, if the owner/operator of a pain management clinic, their employee, or any person or entity who contracts with such a clinic have any of the following in their record, they are not eligible for certification by the Medical Board:

1)      Any individual who has had restrictions placed on or been denied a certificate or license by any federal or state agency authorizing them to prescribe, administer, supply, or sell a controlled substance;

2)      Any person who has been subject to a disciplinary action by a licensing entity (such as the Texas Medical Board) for conduct relating to the inappropriate prescribing, dispensing, administering, supplying, or selling of a controlled substance.

3)      Any individual who has been convicted of, pled no contest to, or received deferred adjudication for any felony;

4)       Any individual who has been convicted of, pled no contest to, or received deferred adjudication for a misdemeanor when the underlying conduct relates to the distribution of illegal prescription drugs or a controlled substance as defined in the Medical Practice Act.

In a single stroke this new regulation threatens to close numerous independent pain clinics in Texas. In my experience it seems overly burdensome, strict, and unreasonable to issue such blanket restrictions on those involved in pain management. This is especially true as those physicians whose primary practice involves the treatment of chronic pain are typically subject to some of the greatest scrutiny by the Medical Board. The TMB has a decidedly conservative view on pain medicine and this is reflected in the number of Board Orders and other disciplinary actions which focus on this area.  The new law has a “one strike and you’re out” mentality that does not provide for second chances, the opportunity to redeem oneself, or provide for the possibility that a previous disciplinary action may have been unwarranted or even plain wrong. All a physician needs is a single mark on their record where the Board disagreed with their treatment or prescription plan for a single patient and they will be barred from receiving a certification. Owner’s face a particularly onerous burden as the slightest infraction by one of their workers or contractors in or outside the workplace could mean the loss of the clinic’s certificate and, thus, their business.

I find it regrettable that nothing in the law permits a Pain Management Clinic currently in operation to be “grandfathered in” and given a certificate. Even if clinic has years of demonstrated compliance with all previous rules and regulations its owner could still be denied a certificate and immediately shut down if any of the stipulations above apply. Meaning, that on September 1, 2010, many owners with past infractions may lose their business outright, and those owners who have never faced disciplinary actions will now be faced with firing valuable and loyal employees or contractors who regrettably made mistakes in their past. This is especially troubling as physicians who signed Agreed Orders or accepted plea deals years in the past now face a serious consequence which was completely unforeseen at the time. If these individuals had know the future effect of such settlements, they may been chosen to more strenuously contest past allegations.

The only recourse for a Pain Management Clinic who will not be able to meet the criteria for certification is to attempt to restructure their business so they can meet one of the specified exemptions. In addition to state and federal facilities, the new law exempts hospitals, including outpatient facilities and clinics, as well as hospices. Realistically, the only real option available is sell or rearrange the clinic so that it is a subdivision of a local hospital. This pain management laws also raises potential federal preemptions issues depending on how it is enforced by the Medical Board.

It is unclear what will be the final impact of the new credentialing requirements. What can be said with confidence, however, is that pain management clinics have become a highly regulated sphere in Texas.