The Texas Board of Nursing continues to use tactics which arguably violate and abuse the due process protections guaranteed Texas nurses under the Federal and Texas State Constitutions. The Board’s tactics can put your employment and reputation in jeopardy without any opportunity to defend yourself.

 

This abuse occurs through the Board’s filing of formal charges without the corresponding docketing of those charges at the State Office of Administrative Hearings, thereby preventing licensees from either clearing their name or achieving a final resolution. To illustrate how the BON is strong-arming nurses, we must understand how a complaint about a nurse works its way through the administrative system to a potential hearing. 

 

Complaints are submitted to the BON in writing and contain information about the nurse and of the pertinent facts or conduct. 22 Tex. Admin. Code § 213.13(a) (Tex. Bd. of Nursing, Complaint Investigation and Disposition). Not later than 30 days after a complaint is received, the BNE staff shall place a time line for completion, not to exceed one year (this is frequently ignored), in the investigative file and notify all parties of the complaint. 

 

If a complaint is not resolved informally, the staff at the Texas Board of Nursing may commence disciplinary proceedings by filing formal charges. 22 TAC 213.15(a). This is where the BON can strong-arm unsuspecting RNs, LVNs and other licensed nurses: the formal charge will show up on your record when a potential or current employer attempts to verify your nursing license online at the Board of Nursing website. Furthermore, your employer or potential employer can call the Board of Nursing to discuss the content of the formal charge, oftentimes resulting in the employer’s decision to terminate the nurse or not hire a job applicant.

 

At this juncture, the nurse is stuck in limbo. His or her license has the stigma of a formal charge attached to it, often injuring the nurse’s ability to retain or find employment. This is where the time line for completion, mentioned above, comes into play. The time line is said not to exceed one year, but the Board of Nursing, while you have this formal charge attached to your license, can continually extend the timeline by “3-12” months. This can go well over the one year timeline proscribed by the statute. The Leichter Law Firm represents numerous nurses who have been in this situation for years and are still receiving letters informing them that the timeline for the investigation into their case has been extended another “3-12” months, with no apparent end in sight and no solution to the formal charges attached to their license. 

 

How can this be resolved? Unfortunately, at present, the method for resolving such cases rests with the Texas Board of Nursing, and they have made no effort to reasonably settle these cases. The Texas Board of Nursing will often ask the nurse to simply sign an order agreeing to whatever punishment the Texas Board of Nursing deems appropriate. If the nurse refuses, the formal charges remain, and the case is supposed to move to an administrative hearing. But, the case cannot move from a formal charge to an administrative hearing unless the Texas Board of Nursing completes and files a Request to Docket Case form (and any other documents as required by statute) with the State Office of Administrative Hearings. For many licensees, the Texas Board of Nursing has simply not filed such a request.

 

Even a nurse who is represented by an attorney faces a tough situation in this scenario. In previous cases I have attempted to file discovery requests so that we could learn whether or not the Board can even prove up the case. In response, I always receive a curt letter from the Board stating that we have no present discovery rights as the case has not yet been docketed at SOAH. Thus the nurse remains in an arbitrary and bureaucratic nightmare where they are faced with formal charges and yet have no avenue to contest them until the Board deigns to set them at SOAH. The only possible recourse is file an action in District Court to try and compel the Board of Nursing to set the matters at SOAH, however, this is a costly and time-consuming process.

 

The real solution, of course, would be for the Board to change their policy and ensure that matters are docketed at SOAH within a reasonable time after the filing of formal charges. The Board has recently hired several new attorneys and this appears to have helped in the number of cases which are being set at SOAH. However, much room for improvement remains.

 

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

 

According to the Texas Board of Nursing’s Administrative Rules any nurse who has a diagnosis of chemical dependency or who otherwise has a history of abuse of controlled substances must demonstrate through “objective, verifiable evidence” that they have been sober for the past twelve months before they can be allowed to continue practicing licensed nursing. Title 22 Texas Administrative Code § 213.29 and the Board’s “Eligibility and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse, Substance Dependency, or other Substance Use Disorder.” Normally, a nurse will establish that they have been sober throughout the past year by offering up AA logs, negative drug screens, an expert evaluation by an addiction specialist, and testimony from support group members, coworkers, and other intimate acquaintances. The idea is that with the evidence in hand, the Nursing Board will be able to verify the nurse’s sobriety date and see if this meets the twelve-month threshold.

 

Regrettably, it has been my recent experience serving as an attorney for such nurses that the Texas Board of Nursing is all too eager to brush aside such offers of proof and race to a full administrative hearing where they seek, contrary to their own rules and policy guidelines, a one-year suspension of the nurse’s license. In the cases I have been involved with, Texas Nursing Board Staff have repeatedly argued that a one year “timeout” is the appropriate sanction. Their idea is that during this year long timeout period, the licensee can work on their recovery and accumulate verifiable evidence of their sobriety. The problem is that the Board maintains that this timeout applies whether or not the nurse all ready has twelve months of verifiable sobriety. This is an incorrect statement of the law and is grossly unfair and unnecessary for nurses who have already been sober for a year or longer.

 

Another problem with the Board trial strategy in this area is that in the lead up time to a full SOAH hearing, they typically refuse to accept a chemically dependent nurse’s evidence of their sobriety date. In line with this any Agreed Order offered by the Board to settle the case fails to include a finding of fact setting forth the licensee’s date of sobriety. Inclusion of the sobriety date is absolutely crucial. This is the finding the nurse needs so that they can trace back twelve months of continuous sobriety. Otherwise when they later seek to lift any bar to their ability to actively practice nursing, the whole issue of when is their initial date of sobriety will have to be litigated all over again. The Board of Nursing will once again reject the nurse’s evidence of sobriety as insufficient and force the licensee to once again hire an attorney and take the matter all the way through to the State Office of Administrative Hearings.

 

Given the Texas Board of Nursing’s intransigence on this point, a nurse’s only real option is to pursue their case all the way to SOAH the first time around. This is the only way to have a finding of fact issued, in this case by an Administrative Law Judge, establishing their date of sobriety so that they will have a concrete point from which to trace their one-year of sobriety. This is a waste of taxpayer money and needlessly creates stress and drains the finances of the nurse. Simply put, the Board needs to follow their own administrative rules and policies.

 

As an attorney I usually advise my clients in this situation not to accept an Agreed Order that does not contain a sobriety date. Fighting the Board all the way through SOAH may be more expensive in the short run than simply signing the agreement, however, in the long run they will probably need to hire an attorney when they later attempt to reactive their license or lift any bar preventing them from practicing as a nurse. This is because they still need to establish their sobriety date so that they can demonstrate twelve months free from any chemical substances. Furthermore, if they decide to challenge the Board now, their current license will remain active and they will be able to continue working as a nurse while the disciplinary process runs its course. Because of the Board’s refusal to accept a sobriety date, by the time this process has run its course, the nurse may have already accumulated a full year of sobriety and therefore not suffer any down time.

 

I strongly recommend that any nurse’s facing this scenario contact an attorney with experience in administrative law and representing clients before the Texas Board of Nursing. They will be able to help you accumulate the evidence needed to demonstrate twelve months of continuous sobriety and be able to discuss with you the best options for protecting your license.

 

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

 

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.   

In late December of last year, the Association of American Physicians and Surgeons filed a federal lawsuit against the Texas Medical Board seeking various injunctive and declaratory relief against what it characterizes as the abusive practices of the Board. The AAPS complaint contains numerous allegations running the gamut from Board manipulation of the anonymous complaint process, a conflict of interest by the former head of the disciplinary committee, an ongoing policy of arbitrarily rejecting the recommendations of Administrative Law Judges, breaches of confidentiality during the disciplinary review process, and Board retaliation against physician criticism. 

In a press release, Executive Director of the AAPS, Jane M. Orient stated that the AAPS felt compelled to file the lawsuit on behalf of its Texas members given that individual physicians were too afraid of possible TMB retaliation to take action on their own. The AAPS identifies itself as a non-profit entity with thousands of members throughout the country, including Texas, dedicated to preserving the traditional doctor-patient relationship and effective medicine. One of the organization’s overriding purposes is identified in their complaint as the protection of its members “from arbitrary and unlawful government action” such as that alleged to have been perpetrated by the TMB.

A central allegation of the complaint claims that Texas Medical Board President Roberta Kalafut actively manipulated the anonymous complaint process to harass and discipline physicians, including some of her Abilene competitors. According to the pleadings, Mrs. Kalafut had her husband file the anonymous complaints which she then ensured were actively pursued by the Board. Mrs. Kalafut has responded to the press by stating that this claim is completely untrue, noting that none of the anonymous complaints which led to disciplinary action came from Abilene. The AAPS complaint also targets outside abuse of the anonymous complaint process. It alleges that a New York insurance company arranged to have an anonymous complaint filed against a Texas doctor who had treated five of its insured members, who were all pleased with their treatment, so as to avoid paying their costs. The suit seeks an injunction against future receipt of anonymous complaints and a declaratory judgment that such complaints violate a physician’s due process rights under color of state law.

The second main allegation involves Keith Miller’s tenure as Chairman of the TMB’s Disciplinary Process Review Committee, a topic I have previously blogged about. Mr. Miller resigned in the fall of last year amid criticism of his continued position as disciplinary chairman while he simultaneously served as a plaintiff’s expert witness in scores of medical malpractice cases throughout Texas. The complaint points out this conflict of interest and Board officials’, such as President Kalafut, admitted awareness of it as reason for the federal court to compel the reopening of the disciplinary cases heard by Miller.

The final primary allegation of the AAPS involves the TMB’s arbitrary rejection of negative administrative rulings. The complaint itself points out a case where the TMB sought a disciplinary sanction against a doctor’s license who had requested, as per his hospital’s standard rate, that a patient pay $81 dollars for a copy of her medical records. In response to the patient’s complaint the Board’s disciplinary committee, headed by Keith Miller, demanded that the doctor pay a $1000 fine as part of a sanction that would be reported to the National Practitioner’s Databank. After the doctor appealed the case and an Administrative Law Judge ruled unequivocally that the TMB had no legal authority on which to take such an action, the Board simply reinstated its findings and doubled the fine. The suit seeks an injunction against any further arbitrary rejections of administrative rulings by the TMB and a declaratory judgment that such rejections violate both due process and equal protection.

Finally, as additional matters the complaint alleges that physician’s inability to speak out against the TMB and its policies for fear of retaliation, amounts to a denial of free speech. In support of this claim, the complaint points to several instances where Board members have allegedly publicly defamed doctors critical of the TMB. The suit also attacks the Board for allegedly giving confidential records regarding a physician to a hospital with which the doctor was involved in a private dispute.

Continue Reading AAPS Files Federal Lawsuit Against the Texas Medical Board

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