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

 

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

 

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

Continue Reading Department of Public Safety Arguably Denies Due Process

 

Currently I am representing a nursing client in a very serious case against the Texas Board of Nursing at the State Office of Administrative Hearings. This matter has been progressing over a long period of time and in the interim my client’s RN license came up for renewal. She filled in the required forms and sent them in along with the mandatory fee. In response she received a letter from BON informing her that they would not renew her license at this time due to the unresolved status of her SOAH proceeding. They have continued to deny her renewal application and so we have been forced to ask for a second SOAH hearing on this issue. Essentially, the BON has made my client seek a separate and additional SOAH proceeding contesting their refusal to renew her license because of the still pending status of the original SOAH proceeding. This makes little sense as a matter of law or logic.

 

Under the Administrative Procedure Act, a nurse who timely files an application to renew their license ensures that their current license will remain in effect until the final resolution of any ongoing disciplinary proceeding. Texas Government Code § 2001.054. Thus until a final and negative result has emerged from the original SOAH case, the Board can not affect my client’s current nursing license. The only way they could would be through an emergency suspension procedure wherein they would be required to show that my client presents such an immediate and serious threat to the public that the suspension of her license is warranted without a prior hearing. Yet, they did not choose to use this procedure and so must wait till the conclusion of the disciplinary process.

 

The logic of this rule is clear; unless they can meet the higher showing required of an emergency suspension procedure, the BON cannot sanction a nurse until the contested case process has ended. They have to meet their burden of proof just as any other government agency must before they can take a person’s professional license.

 

The correct response to my client’s renewal application would have been to either grant it or to stay any decision until the resolution of the prior SOAH action, not an outright denial. Their denial has forced my client to seek, as outlined above, a second contested case proceeding on this issue. If she did not, then after thirty days the Board’s denial would become final meaning that even if she prevailed in the original proceeding her license would have lapsed in the meantime.

 

What makes it especially difficult to fathom the BON’s action as taken in good faith is the fact that even if they renewed the license, they would be free to suspend, revoke, or apply any other encumbrances to it if they prevail in the ongoing SOAH hearing. A renewed license would have no effect on the array of sanctions that could be opposed if they receive a favorable finding in the underlying proceeding. 

 

The BON’s stance on this issue represents an abusive tactic that contravenes the relevant law and forces my client to suffer the additional emotional strain and attorney fees associated with her need to contest this new issue. This is lamentably another attempt by the Nursing Board to warp the administrative process and strong-arm a nurse when it looks like they might not get what they want.   

 

Texas physicians should be aware that over the next two months the Texas Medical Board plans to host several public meetings in various locations throughout the state. The Town Hall-style events seem to be a positive response to recent criticism that the Board spends too much time pursuing minor disciplinary matters and fails to adequately educate physicians and credentialing entities on what the TMB is looking for as part of the application process. In fact, Board President Dr. Roberta Kalafut is quoted in the press release (a link to which can be found below) as recognizing that “the impressions we have as regulators may not mirror the impressions of licensees.”

 

As an attempt at meaningful public dialogue, the Texas Medical Board’s Town Hall program should be seen as a positive initiative. This type of outreach is needed after a year that saw the resignation of Executive Director Donald Patrick amid cries of conflict of interest, a lawsuit filed by attorneys for the Association of American Physicians and Surgeons, and widespread questioning directed at the Board’s at times overly zealous prosecution of minor regulatory infractions. Acknowledging and acting on public criticism can do a lot for repairing trust between the Board and Texas doctors.

 

The meetings will also include a seminar program designed to guide recruiting and credentialing entities through the application process as it relates to the Texas Medical Practice Act. The press release which includes dates and locations for each meeting can be found at the link below.

 

www.tmb.state.tx.us/news/press/2008/052708.php

 

In response to mounting criticism from the public and medical community, the Texas Medical Board has adopted a new fast-track procedure available for certain violations of the Medical Practice Act and Board Rules. The new system bypasses the standard procedure where a physician would be investigated for 180 days followed by another potential 180 days of litigation that could then culminate in a full hearing before the Board or even a contested case proceeding before the State Office of Administrative Hearings. The problem was that this lengthy, stressful, and potentially expensive process applied to every alleged violation no matter how minor.

Under the new regime licensees accused of a violation that is only punishable by a fine and that is not accompanied by any additional charges have two options: They may either agree to the charges and simply pay the fine or dispute the charge in a writing which will be reviewed by a board committee. The third option is to opt out of the fast-track system altogether and undergo the traditional and more intensive investigation and hearing procedure.  

 

Violations eligible for fast-track consideration include but are not limited to:

  • failure to provide medical records in a timely manner;
  • failure to file a change of address with the Board;
  • failure to sign a death certificate in a timely manner; and
  • failure to obtain required continuing medical education.

 

A licensee can choose to fast-track an investigation up to three times, but only once for a given violation. Also note that allegations of inadequate patient care or unprofessional conduct are not fast-track eligible.

 

Texas physicians should be aware that although the new procedure can be convenient and cost-saving, any sanction imposed will still appear on their record and could have real consequences to their practice. Any licensee who is unsure of the potential impact an admission of guilt could have on their practice or who simply does not feel they have done anything warranting an administrative sanction would still be well advised to consult an attorney experienced in representation before the Texas Medical Board.

Effective September 1, 2008, a passing grade on the Nursing Jurisprudence Exam will be required by the Texas Board of Nursing for of all applicants for initial licensure. Under the terms of a recent amendment to Board Rule § 217.17, initial licensure applicants will be tested regarding their knowledge of:

"board statutes, rules, position statements, guidelines, disciplinary sanction policies, frequently asked questions, and other resource documents accessible on the board’s web page relating to the regulation, licensure, and practice of nursing under the following categories:

  • Nursing Licensure and Regulation in Texas;
  • Nursing Ethics;
  • Nursing Practice;
  • Nursing Peer Review; and
  • Disciplinary Action.

The Exam will consist of a minimum of 50 questions and will be psychometrically validated. Note that a nurse who has passed this exam will not be required to retake it for another or similar license, unless as a specific requirement of the Nursing Board. A passing score will remain valid for application purposes for one year.

All nurses who have been convicted or pled guilty or no contest to certain felony offenses should be aware that under a recent addition to the Nursing Practice Act, the Texas Nursing Board holds expanded authority to impose tough sanctions. Already a serious matter, an initial conviction for these offenses now carries additional consequences including mandatory revocation under certain conditions.

Chapter 301.4535 of the Texas Nursing Practice Act states that the Texas Board of Nursing must suspend or refuse to initially license any nurse / applicant who has been initially convicted of:

  • Murder under § 19.02, capital murder under § 19.03, or manslaughter under § 19.04 of the Texas Penal Code;
  • Kidnapping or unlawful restraint under § 20 of the Penal Code, when the offense was punished as a felony or state jail felony;
  • Sexual Assault under § 22.011 of the Penal Code;
  • Aggravated Sexual Assault under § 22.021
  • Continuous sexual abuse of a young child or children under § 21.02, or indecency with a child under § 21.11 of the Penal Code;
  • Aggravated Assault under Section 22.021 of the Penal Code:
  • Intentionally, knowingly, or recklessly injuring a child, elderly individual, or disabled individual under § 22.04 of the Penal Code;
  • Intentionally, knowingly, or recklessly abandoning or endangering a child under § 22.041 of the Penal Code;
  • Aiding suicide under § 22.08 when the offense was punished as a state jail felony;
  • An offense under § 25.07 of the Penal Code that was punished as a felony;
  • An offense under § 25.071 of the Penal Code that was punished as a felony;
  • An agreement to abduct a child from custody under § 25.031 of the Penal Code;
  • The sale or purchase of a child under § 25.08 of the Penal Code;
  • Robbery under § 29.02 of the Penal Code;
  • Aggravated Robbery under § 29.03 of the Penal Code;
  • An offense for which a defendant is required to register as a sex offender under Chapter 62 of the Code of Criminal Procedure; or
  • An offense under the law of another state, federal law, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense listed in this subsection.

Note that the statute’s coverage includes licensees who have been convicted or pled guilty to one of the above offenses and who are then sentenced to deferred adjudication, community supervision, or probation. The basic message of §301.4535 is that the Board must and will automatically suspend an active license or refuse to initially license a nurse who has been initially convicted of one of the above specified offenses.

Over the objections of the Nursing Board, my law firm has successfully argued before the State Office of Administrative Hearings that when read in conjunction with the rest of the Nursing Practice Act, the Board’s own rules, and the Texas Occupations Code, § 301.4535 authorizes the Board to issue a stayed suspension as well as an enforced suspension. The former allows a licensee to continue practicing as a nurse while the latter does not. However, in order to effectively show that they qualify for a stayed order, a nurse will almost certainly need to present evidence and argument at an official hearing as to why, given the circumstances of their case, a stayed suspension would be appropriate. This involves the gathering and presentation of remedial evidence, possibly before an Administrative Law Judge in a trial-like setting. The eye of an experienced attorney is often able to pick out the kinds of beneficial remedial evidence which a layperson will miss. Further, a nurse’s right to such a hearing is contingent on their making a timely request for it. To ensure that you meet this deadline, consultation with an attorney may be advisable.

Continue Reading Serious Felony Offesnes & Discipline by the Texas Board of Nursing

Donald Patrick, the tough and criticized Executive Director of the Texas Medical Board (TMB) announced yesterday that he will be stepping down in August as he turns 70. Dr. Patrick noticed the Full Board as well as Board Staff during a committee meeting of the Board.

Although not specifically cited, Dr. Patrick’s resignation comes after two legislative hearings wherein he and other members of the Board and Board Staff took heat from state representatives. A search will begin for his replacement; however, if no one is found prior to his departure attorney and Director of Enforcement Mari Robinson will assume his role as interim director.

Dr. Patrick, although harshly criticized by many, has been responsible for changing an agency that was largely condemned for not doing its job. Through aggressive agency restructuring and by taking its charge to heart, the Texas Medical Board under Dr. Patrick’s leadership completely turned itself around and is now viewed as one of the toughest, most scrutinizing Medical Boards in the United States.

Physicians throughout Texas will largely see this as a step in the right direction as the number of frivolous complaints against Texas doctors has increased markedly in the last few years.  Public perception of Patrick’s departure may nevertheless force the search in the direction of a similar minded replacement.

Recently we have had a number of physician clients in need of assistance from a family law attorney in Austin.  We have recommended Tim Whitten, PC.  Tim is a Board Certified Family Law Attorney who handles divorce matters, child custody cases, child support modifications and collaborative law as well as adoptions.  Tim’s office is located at 812 San Antonio Street, Austin, Texas, 78701.  He is one block from the Travis County District Court house and is well versed in all of these matters.

Oftentimes a physician staring down a licensing action before the Texas Medical Board faces not one, but two threats to their medical practice. If the doctor depends on privileges to practice at the local hospital, the alleged misconduct that sparked the TMB investigation may also lead to an inquiry by the hospital’s peer review committee. This relationship is a two-way street as under state law a peer review committee must report to the TMB the results and circumstances of any peer review that adversely affects a privileged physician. Such a committee must also report when a physician surrenders their privileges in lieu of subjecting themselves to a peer review. See §§ 160.002 and 164.051(a)(7) of the Texas Medical Practice Act. Upon receipt of this information, the Medical Board will start their own investigation which will very likely lead to a licensing action. This is a complex area of the law dealing with issues related to state medical licensing, privileges, hospital by-laws, and confidentiality to name a few. It readily illustrates the house of cards nature of the legal issues surrounding medical practice: remove one card and the rest can quickly come tumbling down.

The Medical Practice Act generally treats peer review records as strictly confidential and only available after the physician waives privilege, however, the Texas Medical Board, along with other state licensing boards and certain government agencies, is legally entitled to the records of a negative / adverse peer review. § 160.007. Yet, the Act still requires the TMB and the State Office of Administrative Hearings to maintain the strict confidentiality of such records. § 160.006(d).

The peer review process itself is governed by each individual hospital’s set of by-laws, a complicated set of rules setting out the grounds for when a physician’s privileges can be suspended or revoked and outlining the procedures which the committee and hospital must follow. Most by-laws provide that an attorney will be on hand to provide the committee with any needed legal advice. Furthermore, another lawyer may be responsible for presenting the case in favor of restricting, terminating or suspending the physician’s privileges or scope of practice. The physician is also allowed to retain their own attorney to represent their interests before the committee.

Because the peer review committee is generally made up of physicians and administrators from the hospital and local area, one of the dangers of this procedure is that it has the potential of being misused by a disgruntled or opportunistic colleague. A few of the reported cases have included particularly egregious situations where rivals have inappropriately used the review as a platform for an inquisition against every real or perceived past mistake of the doctor. Texas statutory and case law rightly recognizes this danger and provides powerful civil penalties against fraudulent peer review in order to protect the physician. As a result, most hospitals are advised to ensure that all or nearly all of their committee membership consists of non-local physicians who do not compete with the physician under review so as to ensure a disinterested process.

The interplay between the Texas Medical Practice Act and a hospital’s by-laws can be complex. On its own a negative / adverse peer review action can trigger the disciplinary process at the Texas Medical Board while much of the conduct that can beget a peer review can also be grounds for an investigation and disciplinary sanction at the TMB. See § 164.051(a)(7). A negative result under either can be ruinous to a physician. Potential consequences include the loss or restriction of the physician’s state medical license, their privilege to practice at a particular medical institution and the initiation of review procedures by provider networks. The likelihood of a positive outcome is best secured at the hands of an attorney with ample background in each environment who is knowledgeable of the likely impact a given result in one will have on the other.    

Despite the Texas Code of Criminal Procedure’s clear admonishment that a person’s successfully completed Deferred Disposition (available for Class C offenses in Municipal and Justice Courts only) cannot be used against them, the Texas Board of Nurse Examiners and Texas Medical Board continue to use such a record as a basis for disciplinary investigations and sanctions. I recently represented a client physician who had been given a deferred disposition for Public Intoxication -a Class C misdemeanor. Even though my client successfully completed their deferral requirements, the TMB nevertheless dug this fact up and used it to try and sanction the physician’s license. The Texas Board of Nursing is also guilty in this area. Despite the fact that an attorney / prosecutor and a criminal judge decide that a deferred disposition is warranted, licensing boards and administrative agencies routinely attempt to impose discipline anyway. Unfortunately, all too often unrepresented applicants and lawyers practicing outside of their scope fail to realize the remedies available to them.

Besides being bad policy and simply unfair, the practice is also arguably illegal under the Code of Criminal Procedure. The Code specifically states that once the complaint is dismissed upon the person’s successful completion of deferred disposition, “there is no final conviction and the complaint may not be used against the person for any reason.” Texas Code of Criminal Procedure § 45.051(e). Yet, the Medical Board and the Texas Board of Nursing frequently use such criminal history as the foundation of investigations, licensure actions and application denials. The statute’s prohibition against the use of the disposition goes to the very reason for having deferred disposition in the first place. It is designed to give the minor criminal offender a second chance at a clean slate. The policies of the Texas Medical Board and the Board of Nurse Examiners undermine this purpose and needlessly burden their license and discipline divisions with minor offenders that pose no danger to Texas patients.  Ultimately when this predicament the licensee should seek the remedy of expunction which is availalable in almost all cases where a defferred disposition has been succesfully completed.