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

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

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

In the past year the Texas State Board of Pharmacy has started attempting to strictly enforce their recent amendments to the Board’s administrative rules related to punishment for criminal offenses. These rules prescribe certain standard disciplinary sanctions for a wide-ranging list of specific offenses. Pharmacists with either a criminal record or a pending criminal

Recently I have represented several nurses before the Texas Board of Nursing who were being pursued by Board Staff for allegations for which they had already been acquitted by the criminal justice system. As one would expect, this quasi-double jeopardy is extremely frustrating to the nurse. Despite already having hired a criminal lawyer and

Texas State Board of Pharmacy Overreaches Statutory Mandate Regarding Deferred Adjudications/Community Supervision:

 

I am currently serving as the defense attorney in several cases before the Texas State Board of Pharmacy that involve clients who are presently on deferred adjudication/community supervision for drug related offenses. In all of these cases the Board has taken the position that their Rules mandate the outright revocation of the license of any pharmacist or pharmacist tech who is on community supervision or probation for a felony drug related offense regardless of the circumstances or any other factor. This is outrageous and a clear contravention of their statutory mandate.

 

All administrative licensing agencies are creatures of statute and accordingly must derive their authority to regulate from law passed by the state Legislature. The Texas Pharmacy Act sets forth the public mandate of the Texas State Board of Pharmacy in § 551.002 of the Texas Occupations Code. This Sections states that it is the purpose of the Pharmacy Act and the Pharmacy Board “to regulate in the public interest the practice of pharmacy in this state as a professional practice…” in such a way that will “promote, preserve, and protect the public health, safety, and welfare.” Tex. Occ. Code § 551.002. Try as it might, the Board must regulate and discipline pharmacists while remaining within the confines of this public mandate.

 

In defiance of § 551.002, the Board has, within the past three years, passed and frequently amended Title 22 § 281.64 of the Texas Administrative Code in such a way as to make it impossible for any pharmacist or pharmacist tech to retain their license if they are also placed on deferred adjudication. For example, under Rule 218.64 any pharmacist or pharmacist tech who has been convicted of or is currently on deferred adjudication or deferred disposition for a felony involving either 1) mere possession or 2) the manufacture, delivery, or possession with intent to deliver, fraud, or theft of drugs is automatically subject to the revocation or denial of their license. This is without regard to the individual’s culpability, rehabilitation, age at the time of offense, or current fitness to serve as a licensed pharmacist or pharmacist tech. In many situations the pharmacist is not even deemed eligible for licensure until 20 years has passed since the date of disposition.

 

This Rule is in clear conflict with the Board’s statutory mandate. That mandate requires the Board to regulate “in the public interest” and in such a way that will “promote, preserve, and protect the public health, safety, and welfare.” Tex. Occ. Code § 551.002. Licensure revocation based merely in the bare fact of being on community supervision or probation for a drug-related offense satisfies neither of these standards. This Rule takes no account of the pharmacist or pharmacist tech’s extent of involvement in the criminal offense, whether they were even aware a criminal offense was being committed, or whether their participation was minimal or expansive. No account is taken of the licensee’s subsequent rehabilitation, their youthfulness at the time of the offense, or their present and future value to the community. The only thing that matters is whether or not twenty years have passed since the date of disposition.

 

Keep in mind that under Chapter 53 of the Texas Occupations Code licensing agencies such as the Pharmacy Board are required to take into account a set of specified mitigating factors, many of which are listed above, when taking a disciplinary action against a licensee who has actually been convicted of the same offense. Arguably on this ground alone, the Pharmacy Board’s Rule 281.64 is ultra vires (A Latin phrase crucial to administrative law which translates as “beyond the powers”) and hence void.


Continue Reading Texas State Board of Pharmacy Overreaches Statutory Mandate

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

 

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

 

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

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

 

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

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

 

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


Continue Reading State Licensing and Discipline for Texas Insurance Agents: A Guide to the Basics

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

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


Continue Reading BNE & Criminal History -Public Image or Public Safety?