Informal Settlement Conference

Most pharmacies and pharmacists targeted for an investigation by the Texas State Board of Pharmacy can expect to receive an invitation to an informal conference at some point during their case. At the informal conference, the license holder and their attorney meet with a Board panel to answer questions and present their defense to any alleged violations of the Texas Pharmacy Act.

From the perspective of the pharmacy or pharmacist, the goal of the informal conference is to either convince the panel to recommend dismissal of the case to the full Board or, if this is not possible, persuade the panel to recommend an otherwise favorable settlement. While the pharmacy or pharmacist is not bound to the panel’s recommendation and is still entitled to the full hearing process and possible mediation through the State Office of Administrative Hearings, in my experience most cases with the Pharmacy Board resolve through the informal conference process.

Previously, licensees attending an informal conference with the Pharmacy Board appeared before a panel consisting of a single Board member, the Board’s executive director, the Board’s director of enforcement, and the Board’s general counsel. The single Board member could be a pharmacist or a public (non-pharmacist) member. With only a single Board member present—who may or may not be a pharmacist—most of the licensee’s and their attorney’s interactions with the Panel occurred with the three high-level Staff members: the executive director, director of enforcement, and general counsel. This varied according to the individual personality of the Board member and whether they had a solid background in pharmacy and the specific issues at hand.

The Pharmacy Board recently changed their informal conference format so that there are always two Board members present, at least one of whom is a licensed pharmacist. The Board’s director of enforcement is no longer part of the informal conference while the executive director and general counsel remain participants. This seemingly small change alters the dynamics of the informal conference as the Board members are now much more front and center in the process. More of the questions come from the Board members and interactions with them tend to occupy the majority of the conference. The addition of a second Board member also guarantees a licensee will appear before at least one pharmacist who should have some familiarity with any practice issues important to the case.

In my opinion, the presence of two, as opposed to one, Board members in the informal conference results in a better process. From the perspective of the pharmacy or pharmacist, it increases the likelihood of a dismissal or recommendation individually tailored to the facts of the case and the licensee’s specific circumstances. As a defense attorney I favor this change as it largely leads to better outcomes and is more likely to give clients the feeling they have received a fair opportunity to present their case. In contrast, informal conference processes that are primarily or exclusively Staff driven have a more rigid set of pre-determined results as Staff understandably believe their job is to faithfully implement broad Board disciplinary policies that are aimed at general categories of violations rather than specific facts or circumstances. In contrast, Board members possess more leeway to recommend dismissal or a non-standard result. They are also better positioned to advocate for their recommendation when it is considered by the full Board.

Any pharmacist or pharmacy who has been invited to an informal conference with the Texas State Board of Pharmacy should promptly consult with an attorney. Because most cases resolve though an informal conference process it is important to not put off speaking with an attorney until after the conference. By this time the client may have already unknowingly damaged their case or made it more difficult to obtain a better result without the time and expense of going to trial.

 

Since the start of the new year, Governor Abbott has appointed six new members to the Texas Medical Board. The new members, whose terms are set to expire in April 2021, include five physicians and one public member. One of the new appointees, Sherif Zaafran, M.D., has also been named the Board’s new president. Dr. Zaafran, an anesthesiologist, takes over from Michael Arambula, M.D., Pharm.D., who has severed as the Board’s president for the last several years.

With such a sizable influx of new members and the appointment of a new Board president, it will be interesting to see whether there are any shifts in Board policy or disciplinary priorities. Some of the Medical Board’s most prominent initiatives over the last several years have been its ongoing legal battle over telemedicine, the regulation of medspas and non-surgical cosmetic procedures, and the continued crackdown on what the Board views as the non-therapeutic prescribing of pain medications. Whether these will continue to be a primary focus waits to be seen.

On a more individual level, the new Board members have been regularly appearing at informal settlement conferences. Our firm’s experience with the new appointees has been largely positive in this respect as the new members have been generally receptive to the responding physician’s arguments and attentive to the details of each case even if they do not always reach the decision we are advocating for on behalf of our clients. I am hopeful this trend continues.

As of the date of this post, the Board is also still searching for a new Executive Director. The prior Executive Director, Mari Robinson, had a lengthy tenure with the Board and always appeared to play a strong role in the development and implementation of Board policy. Since Ms. Robinson’s departure last year, the Board’s General Counsel, Scott Freshour, has served as the Interim Executive Director. I anticipate any changes in the Board’s broader policies will begin to take shape once they have selected Ms. Robinson’s permanent successor. 

 

The processing of complaints filed with the State Board of Dental Examiners (“Board”) is governed by Chapter 255, Title 3, Occupations Code and Rules 107.00 through 107.103 of the Board’s Rules. After deciding that the complaint involves potential violations, Board Staff has the authority to schedule an informal settlement conference, draw up a proposed board order, or file a formal complaint with the State Office of Administrative Hearings. As the informal settlement conference track gives the licensees an opportunity to present their mitigating or exculpatory evidence to a Board member who has the authority to resolve an investigation, such a setting is many times favorable to flesh out the facts and give the licensees a venue to clarify the issues. 

Unfortunately, the more recent trend has pointed to Board Staff presenting proposed board orders to licensees in lieu of scheduling informal settlement conferences to resolve cases. These board orders are prepared and reviewed by Board Staff, including the dental director who is employed by the Board.  In the proposed order Board Staff will make findings of fact and conclusion of law, and list sanctions without any input from the licensee. The proposed orders are sent to the licensees accompanied by a form letter stating the failure to sign the order would result in a formal complaint and a contested case hearing at the State Office of Administrative Hearings. Many times, licensees, without an understanding of the disciplinary process will be coerced to sign the order as the prospects of a formal hearing are daunting. What the dentist often does not know is they still have the right to request an informal conference and obtain a copy of all non-confidential information in Staff’s investigative file. For these reasons, among others, licensees investigated by the Board should seriously consider hiring an attorney.

The attorneys at the Leichter Law Firm have extensive experience in professional licensing and administrative law and will generally help to secure better outcomes than a practitioner facing the Board alone. In the scenario explained above, we would request an informal settlement conference so that we would be better able to marshal evidence and present your case to Board Staff and a representative Board member.  If you have received a proposed board order without having been afforded the opportunity for a face-to-face informal meeting, please call the attorneys at the Leichter Law Firm for a free consultation at 512-495-9995.

 

 

For the past several years the Texas Department of Insurance-Division of Worker’s Compensation (TDI-DWC) has steadily increased the number of enforcement actions initiated against Designated Doctors serving the Texas worker’s compensation system. The results of such enforcement actions can range widely— from a requirement that the Designated Doctor (DD) complete additional training, the payment of a sizable administrative penalty, to removal of the physician’s Designated Doctor (DD) status. Most DD’s are likely aware of this trend as it corresponds with broader efforts by DWC to more tightly regulate the worker’s compensation process.

To accommodate this augmented activity the Division of Worker’s Compensation’s enforcement division has expanded its staff through recruitment from other state healthcare agencies, such as the Texas Medical Board. As a by-product of this hiring policy the DWC has adopted and modified many of the procedures commonly used by these other administrative bodies. This includes implementing an informal conference procedure which largely models that used by the Medical Board. Similarly, DWC Staff also frequently forward a proposed settlement agreement to a Designated Doctor prior to an informal conference or other adequate opportunity to respond to alleged deficiencies. This procedure mirrors that used by the Texas Board of Dental Examiners and Texas Board of Nursing.

A DD will often first become aware of a pending enforcement action through a records request from DWC’s enforcement division asking for all documentation still in the DD’s possession related to one or more specified patients. Alternatively, DWC will send the Designated Doctor official correspondence expressly notifying them an enforcement action has been opened, listing the matters being investigated, and ask for a response. Prior to providing a response, a Designated Doctor in receipt of such a letter from the Division of Worker’s Compensation should promptly contact an experienced attorney to discuss their case and determine whether it is advisable to retain legal representation. We have seen many clients unknowingly do irreparable harm to their case by submitting a response first and only seeking legal counsel after they receive a proposed resolution from the enforcement division.

The DWC can initiate an enforcement action against a Designated Doctor for a broad array of different reasons, including submitting Designated Doctor’s Evaluations (DDE) late, establishing a date of Maximum Medical Improvement (MMI) or Impairment Rating (IR) with which the Division’s Office of the Medical Advisor disagrees, or having an Administrative Law Judge subsequently overturn the DD’s findings in a hearing involving an injured worker. In fact, the kind of conduct, issues, errors, and omissions that can be considered a violation of the DWC’s Rules is vast and many may seem picayune to the physician or outside observer. Regardless, the enforcement division pursues each issue zealously and makes full use of DWC’s broad discretion to regulate its DD’s in seeking enforcement action.

Any Designated Doctor who has been targeted for a possible enforcement action by DWC should immediately contact an attorney experienced in representing clients before the agency. The risks of going it alone are substantial and the DWC does not shy from removing physicians as Designated Doctors, particularly not in the overactive regulatory climate which currently prevails. My firm has been very successful in achieving successful outcomes for DD’s before DWC and this includes physicians whom the enforcement division sought to have removed from the program. A vigorous rebuttal and/or remedial presentation by a lawyer experienced in advocating before the DWC can make all the difference in the final outcome.

 

Recently, the Board of Nurse Examiners has adopted two practices that besides being unlawful under the Board’s own rules and the applicable law cause great harm to the licensee, one even rising to an effective denial of due process. The first such practice involves the prosecution of disciplinary actions by filing formal charges internally against the nurse, without first offering the licensee a chance to present their case at an informal conference. Not only is this skipping of the informal process contrary to Nursing Board Rules, it also places an undue burden on licensees who are needlessly forced to shoulder increased legal costs and emotional strain.

Similar to many Texas state licensing boards, the Board of Nurse Examiners has adopted rules mandating that a licensee facing a disciplinary action be given the opportunity to participate in an informal settlement conference before the filing of formal charges. Pursuant to the Nursing Practice and Administrative Procedure Acts, the Board Rule regarding informal proceedings expressly states that the licensee be given an “opportunity to be heard.” Title 2 Texas Administrative Code § 213.20(b). Presumably, the rationale for this rule is to ensure that licensees and Board Staff have a chance to informally present their respective cases and hopefully achieve an agreed settlement. Such a procedure avoids encumbering the State Office of Administrative Hearings with an additional case when the matter is open to informal settlement. Likewise the costs of a formal SOAH proceeding are far greater for both the Board and the licensee when compared to an informal conference.

Even more egregiously, the BNE has in some cases decided to file formal charges, broadcast such filing on their website for public viewing, but refuse or wait many months to also docket the case at the State Office of Administrative Hearings. This effectively places the matter in administrative limbo as under the APA until the case is docketed, SOAH does not gain jurisdiction over the matter. This means there will not be a date for a formal hearing, an Administrative Law Judge will not be appointed to preside over the case, and parties can not effectively file motions or perform discovery. Title 1 TAC § 155.9(e).  Such practice clearly violates SOAH’s Rules of Procedure which explicitly mandate that an agency pursuing a contested case “shall” docket the case. § 155.9. Moreover, a failure to docket the case after the filing of formal charges also contravenes the APA’s stricture that parties are entitled to a hearing on the merits. Texas Government Code § 2001.051. Simply put, the Board of Nurse Examiners has no legal authority to pursue this policy -in fact such practice violates the rules.

Continue Reading The Vanishing Informal Conference & The Texas Board of Nursing

In lieu of public discipline, the Texas Medical Board has the option of offering a Confidential Rehabilitation Order (Private Order) to a physician who suffers from certain drug or alcohol related problems and/or mental health problems or disorders. Outlined under Title 22, Section 180.1 of the Texas Administrative Code, the purpose of an order is to create an incentive for a licensee or applicant to self-report and seek early assistance / treatment, thereby avoiding any harm to the public due to the deterioration of the physician’s ability to practice medicine. Successful completion of a Confidential Rehabilitation Order serves as an alternative to a public disciplinary order which must be reported to the National Practitioner Databank and can have adverse effects on a medical doctor’s ability to practice. A Private Order is Non-Public so there is no way the public, prospective employer’s or other health care entities should know that the physician’s medical license is subject to a Board Order.

The regulatory guidelines regarding who is eligible and under what circumstances a Confidential Rehabilitation Order can be issued are complex. An experienced attorney can help guide a physician through this process, accumulate supporting documentation, and ensure the licensee does not make a decision that will make them ineligible for a private order.

The issuance of a Confidential Rehabilitation Order is at the sole discretion of the Board. Under the Board’s rules, Staff and the Board may consider issuing a private order when:

  1. the licensee or applicant suffers from an addiction caused by medical treatment;
  2. the licensee or applicant self-reports intemperate use of drugs or alcohol and has not been the subject of a previous Board order related to substance abuse;
  3. a court has determined that the licensee or applicant is of an unsound mind;
  4. the licensee has a physical or mental impairment as determined by an examination; or
  5. a licensee or applicant admits to suffering from an illness or a physical or mental condition that limits or prevents the person’s practice of medicine with reasonable skill and safety.  

Title 22 Texas Administrative Code § 180.1(c). Continue Reading What is a Confidential Rehabilitation Order?

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

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

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

Continue Reading DWI: Medical Licenses & Physician Discipline

Physician with AttorneyThe Texas Medical Board (TMB) pursuant to the Medical Practice Act section 164.059 has the authority to temporarily suspend a physician’s license to practice medicine with or without notice if the physician poses a real and imminent threat to the public through his/her continuation in practice.  Although the evidentiary threshold is more stringent than in disciplinary matters, the panel who decides the physician’s fate is comprised of three members of the Texas Medical Board and not an independent and neutral Administrative Law Judge.  Needless to say, Staff of the Board rarely loses when it decides to remove a physician from practice through the utilization of its emergency suspension powers. Generally, the Board will invoke this authority for the following types of violations and acts:

  • Excessive or intemperate use of drugs or alcohol that in the Board’s opinion could endanger a patient’s life;
  • Non-Therapeutic precribing practices;
  • Untreated mental illness;
  • Repeated standard of care violations;
  • Repeated and dramatic boundary violations.

What is not apparent to most physicians who are faced with this process or loss, are the ramifications which follow the entry of an order temporarily removing the physician from practice.  When the hearing is with notice or a noticed hearing is waived in an effort to remedy the problem and settle the case for an Agreed Disciplinary Order at a later date the following consequences will ensue:

  1. The return of the physician’s Drug Enforcement Adminstration & Department of Public Safety Controlled Substances Registrations and the potential long term loss of such privileges;
  2. The suspension of the doctor’s hospital privileges at whatever hospital he/she may be a member of the medical staff;
  3. The disqualification from the individuals Certifying Medical Specialty Board –Board Certification;
  4. The termination and exclusion from participation as a preferred provider by insurance companies such as Blue Cross Blue Shield & Aetna;
  5. Exclusion by the Office of the Inspector General from particpating in Federal reimbursement programs such as Medicare & Medicaid;
  6. Removal from the Approved Doctor’s List of the Department of Insurance’s Workers Compensation Commission;
  7. A swarm of negative press as the TMB issues press releases to the physician’s local paper and television networks and such stories often make front page headlines;
  8. The filing of new and otherwise unremarkeable law suits as a result of the now publicly disclosed negative information regarding the physician’s character or practice;
  9. A wave of new Complaints & Investigations to and by the TMB as patients who were otherwise unknowing or on the fence now feel justified in coming forward.