Texas Medical Licensing Law Blog

CRNA's, Nurse Practitioners, and the Texas Peer Assistance Program for Nurses

Louis Leichter — Fri, 26 Feb 2010 17:15:47 -0600

When confronted with allegations of drug diversion or intemperate use, an employer will frequently present a nurse with a choice: either accept a referral into TPAPN or face a report to the Texas Board of Nursing. For a nurse who actually suffers from a substance abuse or chemical dependency diagnosis, acceptance of a referral toTPAPN may be a wise first step towards recovery. Nurses who do not believe they are an appropriate candidate for TPAPN, however, may want to give pause prior to pursuing that route as the restrictions and conditions imposed on a participant are onerous and will affect, sometimes drastically, their ability to continue practicing in their present capacity.

This is doubly so for Advanced Practice Nurses such as Certified Nurse Anesthetists and Nurse Practitioners. At a minimum both CRNA’s and Nurse Practitioner’s will be precluded from practicing in their respective fields for one year. Moreover, the TPAPN participation term for Advanced Practice Nurses is three years instead of the two years applicable to regular RNs and LVNs. A CRNA or Nurse Practitioner’s enrollment in TPAPN is also clearly reportable to provider networks, malpractice insurers, hospitals, and other credentialing agencies and can affect their ability to successfully enter into agreements with these entities for years to come.

A CRNA or NP who has been referred to TPAPN, or the Board of Nursing, should know there are other potential options available and I strongly advise them to speak with an attorney well versed in representation before both TPAPN and the Texas Board of Nursing prior to making a final decision. At the outset, it may be possible for you and your attorney to refute or dispel the allegations underlying the TPAPN or Board referral. Even if this is not possible, a CRNA, Nurse Practitioner, or any other nurse is not eligible to participate in TPAPN or be placed on an equivalent Board Order unless they have a diagnosis of substance abuse or chemical dependency. Depending on the allegation and the nurse’s history of use or abuse of mind-altering substances, they might not carry such a diagnosis.

Some cases may even be eligible to be resolved through a referral to the Extended Evaluation Program (EEP), a sub-program operated by TPAPN which is meant to apply to nurses who may have some history indicating an issue with drugs or alcohol but who do not carry a DSM-IV diagnosis of substance abuse or chemical dependency. A nurse in EEP is only required to verify their sobriety through one year of negative random drug screening. It does not involve any restrictions on their scope of practice or, in the case of Nurse Practitioner’s, their prescribing authority. Moreover, a nurse’s participation in EEP is confidential, not a part of the public record, and is not disclosable on credentialing and other similar applications. Furthermore, participation in EEP is not considered to be discipline under the Nursing Practice Act.

A CRNA or Nurse Practitioner who is being asked to enroll in TPAPN and who thinks this is not an appropriate route should explore their options prior to making a decision which will dramatically affect their ability to practice as an APN. The unfortunate truth is that many nurses are in TPAPN when they shouldn’t be, likely because they felt they had no other choice. Even more tragically, it is often these nurses who have the most problem complying with their participation agreement as an individual who is in a treatment program but who don’t belong there is more likely to not give sufficient attention to remaining in compliance. Completing 90 Alcoholic’s Anonymous meetings in 90 days is hard enough for someone who genuinely belongs in and can benefit from AA. It is especially difficult for someone who does not. If you are in such a situation, I emphatically suggest that you talk to an attorney and weigh your options prior to making a final decision.

Recent Upturn in Disciplinary Activity by the Texas State Board of Dental Examiners

Louis Leichter — Thu, 25 Feb 2010 16:38:28 -0600

In the past two months I have noticed a significant rise in the number of Dentist’s seeking potential legal representation before the Texas State Board of Dental Examiners. This is not surprising as the Dental Board has recently come under fire from both the press and Legislature for what is perceived as a record of lax or ineffectual enforcement. To attempt to remedy this situation the last Legislative Session authorized a sizable increase in the Dental Board’s budget for investigations and disciplinary matters.

The Texas Dental Board has been rapidly placing these new funds to use by hiring a new General Counsel, Joy Sparks, as well as several other new attorneys, paralegals, investigators, and miscellaneous support staff. Combined with the additional personnel, the Dental Board has begun pursuing dentists and other licensees for complaints and criminal episodes it would have likely either ignored or sought minimal discipline for in the past.

In one of my recent cases, the Board of Dental Examiners is seeking to impose a multi-year reprimand on the basis of a comparatively minor misdemeanor for which the dentist was placed on deferred adjudication. Previously, this kind of offense would have probably been ignored by the Board or only resulted in them demanding a less severe sanction; however, in this new climate the dentists may be facing a lengthy fight to avoid the imposition of an unreasonable Order.

The dilemma faced by this dentist and other’s like him is even if they are the subject of a comparatively minor case, should they agree to such discipline they will potentially be required to report it to their provider networks, malpractice insurers, any other credentialing bodies, other state’s where they are licensed, and the Department of Public Safety and DEA in reference to their controlled substances registration. The import is that what may start as a small case at the Dental Board can lead to a whole host of secondary effects which can affect a dentist’s ability to smoothly function as an ongoing concern.

The Dental Board has also initiated the process necessary to promulgate new disciplinary rules which promise to sharpen the teeth of the Board’s enforcement wing. I intend to dedicate a blog article to this topic once these proposed rules assume a more definite shape.

The bottom-line is that Texas dentists should expect to see more activity from the Dental Board in the coming year and should ensure they keep abreast of rule changes and how they may impact their practice. Due to the Texas State Board of Dental Examiners’ more severe stance towards discipline, I strongly encourage any dentist subject to an investigation or disciplinary action to contact an attorney with experience in both administrative law and the representation of licensees before the Dental Board. In almost every case, early involvement by an attorney familiar with the process will lead to a better outcome and minimize any negative effects on the dentist’s practice.

PRN and the Texas State Board of Pharmacy: The Limitations of Confidentiality

Louis Leichter — Tue, 15 Dec 2009 17:43:32 -0600

As many pharmacists are aware, the Professional Recovery Network (PRN) is a peer assistance program designed to aid licensees seeking treatment and other assistance with problems related to alcohol and substance abuse as well as certain mental illnesses. In this role PRN can play a valuable part in helping troubled pharmacists receive the counseling and intervention they need to regain control over their lives while continuing to exercise their skills and expertise through their practice.

While PRN is commendable in this regard, a recurrent problem I encounter in representing pharmacists before the Texas State Board of Pharmacy is that PRN does not fully disclose upfront the significant limitations in their confidentiality protections and their captured role vis a vis the Pharmacy Board. As an attorney, I frequently see this lack of full disclosure on the part of PRN result in significant harm to a pharmacist’s ability to defend themselves in any related Board disciplinary action avoid the imposition of a severe and prolonged public disciplinary orders.

There are two primary ways in which pharmacists can become involved with PRN: These are through a referral, either by the individual themselves or a third party, or through a disciplinary investigation initiated by the Texas State Board of Pharmacy. In either case, PRN will take an initial history and likely perform an in-house assessment on the pharmacist licensee in addition to having the individual evaluated by an outside expert. Following this PRN, will present the pharmacist with a contract asking them to agree to participate for a number of years in a list of recovery activities and other requirements. This typically includes agreeing to complete an intensive inpatient or outpatient recovery program, regular attendance of AA or other support group meetings, submission to randomized drug testing, and potentially other restrictions focused on their ability to function as a PIC or working without being unsupervised by another pharmacist. Another mandated requirement is a consent form allowing PRN to turn the pharmacist’s entire file over to the Pharmacy Board in the event they fail to comply with any aspect of the agreement.

The fundamental problem is that up until this point pharmacists (even self-referrals) are not told that if they, for whatever reason, decide not to enter into the PRN agreement then PRN will forward their full file to the Pharmacy Board. Based on the stories of many of my clients, prior to this juncture licensees are assured that everything they tell PRN is confidential. As seen above, this is seriously misleading and, in my opinion, arguably illegal.

By this point the pharmacist has likely made numerous statements and admissions to PRN which will be turned over to the Texas State Board of Pharmacy and used as evidence in any disciplinary action. The licensee has probably also undergone an assessment with an addiction specialist or other mental health professional. This expert’s report will likewise be forwarded to the Board. With the receipt of the above damaging admissions and other evidence, which likely would not have been made had the pharmacist been aware that PRN does not, in fact, strictly maintain their confidentiality, the Board’s case is already fully formed and ready to prosecute. The licensee’s legal options at this time are likely very circumscribed even though this is often the first time they may consider contacting an attorney. With little room to maneuver, the pharmacist can essentially be forced to sign a public and long-term Agreed Order that significantly restricts their ability to function as an ongoing concern.

What pharmacist’s need to understand is that PRN is the Texas State Board of Pharmacy’s statutory peer assistance program under the Health and Safety Code and as such can function as an arm of the Board in disciplinary actions. The first and primary consequence of this captured status is the disclosure of supposedly confidential information to the Board. In the future I hope to write about other issues with this conflicting mandate and the way it can subvert PRN’s ostensible role as an agency set-up to encourage troubled pharmacists to seek need treatment and intervention.

The bottom-line is that every pharmacist who is dealing with or considering contacting PRN needs to be aware that any information or statements provided by them can be, and often is, turned over to the Pharmacy Board. Consulting with a Texas pharmacy license attorney either prior to or after you have made contact with PRN is likely a prudent step to ensure you aren’t unnecessarily jeopardizing your ability to continue practicing as a pharmacist..

Texas State Board of Pharmacy Vigorously Pursues New Sanction Guidelines for Criminal Offenses

Louis Leichter — Wed, 09 Dec 2009 16:24:55 -0600

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 case should take note as the sanctions involved are generally quite severe and can include revocation of a licensee’s registration by the Pharmacy Board.

For example, according to the guidelines a pharmacist who is convicted or placed on deferred adjudication/probation for a felony drug-related offense under Chapter 481 or 483 of the Health and Safety Code related to fraud, or the manufacture, delivery, theft, or possession with intent to deliver of drugs is subject to the denial or revocation of their pharmacist license until 20 years after the date of disposition. Even at the twenty year mark, the guidelines state the Texas State Board of Pharmacy’s intent to place the pharmacist on a five year probationary order.

For those pharmacists convicted or placed on deferred adjudication for the felony possession of drugs, the guidelines state that the Board will deny, revoke, or suspend the professional’s license if they are still on probation. Likewise, if the pharmacist is not on probation but it has been five or less years since the date of disposition, then they are eligible for a five year probationary order but only if they have first been evaluated by an addiction specialist who opines that they are safe to continue practicing pharmacy. Even if it has been over twenty years since the date of disposition, the TSBP still wants to place the pharmacist on a one year probationary order. Of additional note is that the guidelines apply essentially the same set of penalties to a pharmacist convicted or placed on deferred adjudication for misdemeanor possession.

It has been my experience as an attorney that the Texas State Board of Pharmacy tries to strictly adhere to these guidelines at the informal stage of the investigatory process only to become somewhat more receptive to mitigating evidence and other factors once a case has been filed at SOAH. Unfortunately, I have seen many pro se or poorly represented pharmacists accept the Board’s settlement offer, however harsh, at the informal stage out of sense that nothing better is possible.

Legally speaking, the TSBP’s sanction guidelines are only just that: guidelines. Although an Administrative Law Judge will give the guidelines some deference at a formal administrative hearing, Pharmacy Board attorneys are still required to show that under the specific factors present in that case, the requested sanction is warranted. On the flipside, it is the burden of the pharmacist and their attorney to draw out the mitigating factors and demonstrate why a lesser sanction is in order. This necessarily demands an intimate and working knowledge of the rest of the Pharmacy Board’s rules, the Texas Pharmacy Act, and other pertinent sections of the Texas Occupations Code, including Chapter 53, as to first, what are the relevant mitigating factors and second, how to get them into evidence.

Every pharmacist with a criminal record or a pending criminal case should be aware of the Texas State Board of Pharmacy’s new sanction policies. If you are in such a situation I strongly advise that you contact an attorney experienced in administrative law and representation before the Texas State Board of Pharmacy to discuss possible outcomes and preemptive courses of action.

Texas Medical Board Moves Away from Rehabilitation Orders with Adoption of Texas Physician Health Program

Louis Leichter — Tue, 08 Dec 2009 10:13:51 -0600

Currently, physicians and physician assistants with a history of substance abuse, mental illness, or other medical conditions which could affect their ability to safely practice medicine have been eligible to receive a rehabilitation order from the Texas Medical Board. Pursuant to a set of specific criteria, physicians and PA’s with such issues are also frequently able to have such orders be confidential from the public and colleagues.

In line with general national trends in regards to medical licensing, this current arrangement is set for a major change next year due to the passage of Senate Bill No. 292 by the Texas Legislature. This bill adds Section 167 to the Medical Practice Act thereby establishing the Texas Physician Health Program (TPHP) as a replacement for the old regime of rehabilitation orders administered and monitored through the Medical Board. Somewhat similar to the Professional Recovery Network of the Texas State Board of Pharmacy and Texas Dental Board, the Texas Physician Health Program is designed to become the first stop for impaired and ill physicians. Like the older rehabilitation order system, the Physician Health Program would be directed towards impaired and mentally ill physicians, although it would still also cover other licensees with rarer medical conditions which could affect their safe practice.

Once the TPHP springs into existence on January 1^st, 2010, a physician can now be referred into the Physician Health Program in lieu of an investigation and disciplinary action by the Medical Board. Virtually anyone can refer a physician into the Program, including the Board, a hospital, another physician, a physician health and rehabilitation committee, or a concerned member of the public. Importantly the new law also notes that the Physician Health Program is not allowed to accept a referral which also involves a violation of the standard of care as a result of the use of drugs or alcohol or a boundary violation with a patient or their family. Also significant, the Medical Board now has the authority to make the granting of an initial license contingent on the physician’s agreement to enroll and participate in TPHP.

Similar to the current rehabilitation orders, a referral to TPHP and participation therein remains completely confidential unless the physician or physician assistant leaves the program, fails to adhere to their participation agreement, or otherwise is determined to pose a risk to patient safety by Program Staff. In such an event, the Physician Health Program will forward the licensee’s file to the Medical Board and the TMB will likely open a disciplinary investigation.

What is still left unclear is the process when a licensee is referred by a non-Board individual to the Physician Health Program for an impairment or mental health issue that does not involve a standard of care violation and that physician decides not to enroll in the Program. It has been my experience serving as an attorney in cases involving PRN and the Board of Nursing’s TPAPN program that the peer assistance entity is then required to forward the matter to the Board.

In the same vein, it is also unclear as to what extent the physician and physician assistant will be notified that they can hire an attorney to represent them before the Texas Physician Health Program. As it stands now, basic due process concerns require that the Medical Board inform physicians of their right to legal representation whenever they open an investigation. This is a potential issue as based on my dealings with PRN and TPAPN, a peer assistance program like TPHP, while having nothing but good intentions, is unfortunately often beholden to their governing Board. In such situations the threat is that they could become a mere instrument of the Board collecting potential damaging evidence and admissions from the physician while acting under the guise of being an independent entity.

Nevertheless, I am cautiously optimistic as I believe if run well, the Texas Physician Health Program has the potential to be a great resource for impaired and mentally ill physicians and consequently their patients and the public at large. It remains to be seen, however, how the Program performs once it launches into action at the start of the new year.

Recent Amendments to the Nursing Practice Act and the Subsequent Granting of Power to the Texas Board of Nursing

Louis Leichter — Wed, 02 Sep 2009 08:39:52 -0600

The statutory amendments to the Texas Nursing Practice Act as proposed by House Bill 3961 came into effect on September 1, 2009. The Amendments were largely suggested by the Texas Board of Nursing’s executive staff and attorneys in an effort to circumvent difficulties they were experiencing prosecuting disciplinary and licensure cases involving the nursing practice of Registered Nurses (RN’s), Licensed Vocational Nurses (LVN’s) and Advanced Practice Nurses (APN’s) such as CRNA’s or Clinical Nurse Specialists (CNS).

The lawyers and staff of the Texas Board of Nursing (TBON) proposed these legislative changes to the Nursing Practice Act in response to challenges they were encountering when experienced administrative law and professional license defense attorneys opposed the abuses and tactics that Nursing Board Staff employed in license investigation(s) and contested case hearings.

While it is unclear how Staff of the Board will try to utilize its new regulatory authority the House Research Organization Bill Analysis does help to explain the bill and does confer what the legislature interpreted the provisions / amendments to mean. The changes also require the Board to adopt rules relating to the practice and procedure surrounding its new ability to request / require forensic psychological evaluations and the questionable polygraph report. This procedure is to be accomplished through a probable cause hearing at the State Office of Administrative Hearings (SOAH) and will be the topic of an independent and subsequent blog article.

The changes that will affect the way that license defense / disciplinary cases are handled involve Board Staff’s ability to request and potentially order a chemical dependency analysis or forensic psychological evaluation of a nurse. The Nursing Practice Act now also mandates that the Board utilize its Temporary Suspension Authority when a nurse tests positive for drugs or alcohol while under a Board Order or while participating in the activities of the Texas Peer Assistance Program for Nurses (TPAPN). The statute also requires the Temporary Suspension of a Nurse who is deemed non-compliant with TPAPN. This is especially troubling (as it has been my experience in handling over 500 nursing license defense cases) that oftentimes a nurse ends up in TPAPN due to routine practices by Nursing Board Staff despite the fact that the nurse is neither appropriate nor eligible for TPAPN per TPAPN’s own standards. Oftentimes TPAPN deems a person non-compliant for a cause that does not relate to drugs or alcohol such as the inability to find employment or disqualification to an ongoing medical condition. Unfortunately these nurses may find themselves temporarily suspended without good cause.

Fortunately the new statute appears to require the agency to demonstrate that probable cause exists that the nurse through their continued practice would pose an imminent danger or threat to the public health & welfare.

While reading the House Bill Analysis it is clear that Board Staff lobbied the legislature and attempted to legitimize its use of polygraph tests as a tool in the forensic psychological evaluations. Nurses however should take note that this tactic is still illegal and inappropriate under Texas Case Law and the Supreme Court’s rulings on the admissibility of polygraph test results in a Court of Law.

Any Nurse who falls prey to Staff of the Texas Board of Nursing’s new use of its authority with respect to mandated psychological evaluations or a temporary suspension should contact an experienced administrative law and professional license defense attorney immediately. The Statutes changes clearly allow for defense and rights relevant to these changes and it is best to assert them before Staff of the Board and its lawyers gain an unfair advantage a nurses license / ability to practice.

The Texas Board of Nursing and TPAPN's Continued Misuse of EtG Testing

Louis Leichter — Sat, 22 Aug 2009 12:09:01 -0600

Recently I have been the attorney of record in nursing license defense matters against the Texas Board of Nursing for a number of registered nurses and licensed vocational nurses (RN & LVN Practice) in cases where a low level EtG test is in issue despite clear indications that these test results are inadequate proof of deliberate consumption of ethyl alcohol (ETOH). Thus the formal charge by the BON is unsupported by adequate admissible evidence and should not be the basis for the discipline of the nursing license / registration. In most of these cases a favorable result is anticipated for the nurse, but not without a long and arduous fight against the staff and lawyers of the Texas Board of Nursing.

Generally the cases arise in one of two ways:

The Texas Peer Assistance Program for Nurses (TPAPN) is monitoring someone’s nursing practice pursuant to a Board Directive or Agreed Order and as such any low level test per TPAPN policy is considered a violation and is per se grounds for dismissal from TPAPN. This is also cause for a new report to the Texas Board of Nursing and Staff’s allegations / Formal Charges that the Nurse’s conduct is “unprofessional”;
The Texas Board of Nursing has disciplined the license of a Nurse who is now under an Agreed Order and monitored by staff of the Board’s compliance and enforcement division (Carolyn Hudson for LVN Practice and Diane Burell for RN and APN practice).

In either case my law firm has seen low level tests where the result is less than 1000 ng/ml being used as an attempted basis for the unwarranted discipline of a nursing license by the attorneys and executive director of the Texas Board of Nursing in spite of clear advisory warnings that the test is in-and-of-itself flawed. Despite clear evidentiary problems staff of the Texas Board of Nursing still attempts to impose new disciplinary action against the nurse and their nursing license that generally involves either a voluntary surrender or an order of enforced suspension. This is especially egregious, as in most of the cases that the lawyers in my law firm have reviewed there is no indication that the nurse has actually violated their agreed order or the Texas Nursing Practice Act.

In a recent case I am the attorney for a Nurse (RN) who admitted truthfully on her license renewal form that she had attended treatment for alcohol use and dependency (Substance Abuse). There were no practice issues alleged and a long history of quality nursing care provided. The Nurse was ordered to TPAPN under a Board Order and she had been compliant in TPAPN for almost two (2) years -22 months to be exact.

The client then threw off a low lying result for EtG which was under 500 ng/ml. Nevertheless TPAPN deemed her non-compliant and reported her to the Texas Board of Nursing for further prosecution and licensure discipline. Staff of the Board is now attempting to revoke her license even though she has never been charged or deemed to have committed a nursing practice error and there is no evidence that she has been anything but sober.

SAMSHA (the Substance Abuse and Mental Health Services Administration) has posted an advisory warning that the EtG lacks proven reliability and should not be used as the basis for regulatory action on its own. Despite this fact, staff of the Texas Board of Nursing continues to harass and punish nurses who do not hire an experienced attorney to defend themselves in a license defense matter involving allegations / violations of the Nursing Practice Act. The punishment is executed in the form of an Agreed Order of Surrender or Enforced Suspension until the nurse goes through unnecessary treatment again and demonstrates one-year of objective and verifiable proof of sobriety / abstinence. Any nurse with a vested interest in thier license owes it to themselves to call an experienced attorney so they may better understand and properly assert their rights.

Texas Board of Nursing's Pre-Approved Evaluator List: What Every Texas Nurse Should Know

Louis Leichter — Fri, 14 Aug 2009 16:14:57 -0600

In cases involving possible alcohol/controlled substance abuse or mental health issues, the Texas Board of Nursing frequently asks nurses to submit to a forensic psychological evaluation and polygraph examination. This standard letter also contains a list of pre-approved evaluators and polygraph examiners. Any nurse who receives such a request should immediately stop and call an attorney with experience practicing before the Texas Board of Nursing.

The psychologists and psychiatrists referenced on this pre-approved list are there solely because they have a history of providing one-sided reports supporting whatever disciplinary measures the Board is considering imposing on your license. During the past decade I have represented approximately one thousand nurses before the Texas Board of Nursing. Throughout this period I have never seen an evaluation performed by a professional on the pre-approved list that is favorable to the nurse. This includes individuals whose entire history involves one or two DWIs or misdemeanor marijuana charges from two or more decades ago.

The bulk of these questionable evaluations are performed by two forensic psychologists in Richardson Texas. When reading an evaluation by one of these evaluators, I am frequently shocked by the vast leap between the verifiable facts in a given case, the results from the relevant forensic tests (such as the SASSI), and the final recommendations of the Board evaluators. Regardless of whether or not it is objectively justified, this recommendation is typically for revocation, referral to TPAPN, or the imposition of a long period of Board monitoring.

For example, one recent case involved a nurse with a ten-year old deferred adjudication involving possession of methamphetamines. Despite ten intervening years of incident-free nursing practice, my client’s successful completion of five years of community supervision (including the provision of five years of clean drug screens), and no other evidence of a problem, one of the above-referenced doctors wrote an evaluation finding that the nurse was an addict, unfit to practice nursing, and that the Board should seek to revoke her license. At this point the nurse felt the situation was so hopeless she had already sent started voluntarily surrendering to the Board; however, thanks to a last minute call to my office, I was able to rescind her surrender and ultimately have her case dismissed without any disciplinary action.

I have previously blogged about the Board’s use of polygraph examinations on this site which I urge you to read. The bottom line is that despite being scientifically invalid and clearly inadmissible in court, the Board continues to request polygraph exams. This is presumably so that their pre-approved evaluators can then use the questionable results to claim that a nurse was lying or overly defensive during the examination. Yet, even in the rare instance where the nurse obtains a clean polygraph, the forensic psychologist’s evaluation is invariably still negative.

Any nurse who receives a request from the Board that they should submit to a forensic evaluation and polygraph exam should immediately contact an attorney with experience before the Texas Board of Nursing. You need to know your rights including the ability to refuse the polygraph exam and request an evaluator not on the pre-approved list. By seeing one of the Board’s evaluators and polygraph examiners you place your nursing license at significant risk. A negative report will have to be rebutted, likely through a second evaluation by a neutral and better credentialed evaluator. Even then there is still a disfavorable evaluation out there raising an issue as to your fitness to practice.

I sincerely urge you to contact a lawyer prior to simply acceding to the request. More is at stake than you might think and you shouldn’t go ahead without some advice from someone other than the agency who holds authority over your license.

Enough is Enough: Texas Board of Nursing Pursuit of Licensees Following Criminal Acquittal

Louis Leichter — Fri, 14 Aug 2009 15:57:57 -0600

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 clearing their name in criminal court, they must now hire a license defense attorney to do the same thing before the Board of Nursing.

The most recent example, involved a case where the nurse had been accused of an inappropriate touching by a ten year old girl. The girl claimed that she had awaken at a sleep over at the client’s house to discover the nurse touching her; however, there were several inconsistencies with the girl’s testimony and it later came out that she was friends with another young girl who had made the exact same allegation (down to every detail) against my client several years prior but had subsequently admitted to her mother that she had made it up.

At the close of the nurse’s criminal trial, the jury returned a unanimous verdict of not guilty. Moreover, Child Protective Services had conducted their own investigation into the matter and determined that nothing had occurred. Yet, despite his acquittal and the negative finding by Child Protective Services, the Texas Board of Nursing decided to pursue their own disciplinary action against my client, seeking the revocation of his nursing license.

Thankfully, my firm was able to enforce the expunction order which had previously been entered by the criminal court to prevent the Board from using second-hand records from that trial to prove their case. Instead, the Board of Nursing was forced to bring the girl to testify in person at a hearing at the State Office of Administrative Hearings. Based on conflicting testimony from our witnesses and several discrepancies between the girl’s original outcry and her testimony at the hearing, the Administrative Law Judge concluded that the Board of Nursing had not met their burden of proof and accordingly entered an opinion favorable to the nurse.

I understand that the Board has a mission to protect the public from bad nurses; nevertheless, at some point one has to think that enough is enough. A person should only have to clear their name so many times before it is reasonable for the Board to think twice about wasting state money to retry a licensee for the same conduct.

The underlying lesson is that simply because you received a not guilty verdict in criminal court or the District Attorney decided not to prosecute, you are not shielded from a licensure action by the Texas Board of Nursing. They frequently subject a nurse licensee to yet another legal action where they are forced to again clear their name or face severe restrictions on, or even termination, of their livelihood. If you are facing such a situation with the Texas Board of Nursing, I highly recommend that you contact a seasoned administrative attorney with experience before the Texas Board of Nursing and the State Office of Administrative Hearings as otherwise you could be risking your license.

Texas State Board of Pharmacy Dragnet for Unlicensed Pharmacy Technicians

Louis Leichter — Thu, 02 Jul 2009 17:41:10 -0600

Recently, the Texas State Board of Pharmacy has been engaging in a far-reaching investigatory sweep aimed at identifying unlicensed pharmacy technicians and pharmacy technician trainees. Pharmacists in the state of Texas need to be aware of these actions and any pharmacists ensnared by the Texas State Board of Pharmacy should contact an experienced professional licensing attorney immediately.

Recently, my firm has experienced an onslaught of calls from pharmacists whose pharmacies have been raided by Board investigators searching for the presence of unlicensed pharmacy technicians and pharmacy technician trainees, a violation of §§ 297 and 295.3 of Title 22 of the Texas Administrative Code. This is important as under § 295.3 of the Pharmacy Board’s Rules the pharmacist-in-charge has a standing duty to ensure the pharmacy is in compliance with all applicable laws and rules. This includes making sure that all employees are properly licensed. The usual result is a sizable administrative penalty and permanent mark on the pharmacist’s licensing record.

These violations are largely procedural: Pharmacy Technicians not paying renewal fees as required by § 297.4, or Techs are not properly applying for their temporary license, or not applying at all. Pharmacists need to be aware of the licensing status of their Technicians and Technician Trainees and should verify this on the Pharmacy Board website.

Oftentimes, early intervention by an experienced licensing attorney can defuse the situation and placate the Texas State Board of Pharmacy. The usual result in this type of case is an administrative penalty and a permanent mark of the pharmacist's licensing record. Under the applicable statutes and rules, however, the Board has the authority, and sometimes elects, to pursue a more serious sanction including the imposition of various encumbrances on the pharmacist's license which make it very difficult for them to continue as an ongoing concern.

If you are being investigated for this or any other reason, I strongly advise you to immediately contact an attorney familiar with the Pharmacy Board as they are one of the most aggressive state licensing Boards in Texas.

Texas State Board of Pharmacy's Agressive Use of Investigators

Louis Leichter — Fri, 12 Jun 2009 15:40:54 -0600

Within the last two weeks my firm has signed on as clients two pharmacists who have encountered first-hand the aggressive tactics used by investigators at the Texas State Board of Pharmacy. This is something I feel all pharmacists and pharmacy technicians need to be aware of so they do not inadvertently damage themselves or accidently forfeit their right to contest the Board’s charges.

The day after I had sent in my letter of representation to the Pharmacy Board regarding the first client, the pharmacist contacted me by phone to tell me that a Board investigator was at her pharmacy asking her to sign a sworn statement admitting to the Board’s allegations. I asked her to transfer the phone to the investigator who stated that he was not aware that my client was represented by an attorney. He apologized and it was clear that he was genuinely unaware that the pharmacist was represented. Nonetheless had my client been unable to get in contact with me at that moment she may have made potentially harmful admissions.

The second client informed me that the evening before he retained me an investigator showed up at his home to essentially interrogate him and, again, have him sign a sworn statement admitting to the Board’s allegations. The investigator represented himself as both an employee of the Board and a licensed peace officer. He asked numerous loaded questions in his quest for additional allegations and also told the pharmacist how lucky he was that the Board did not turn his matter over to the local prosecutor. Thankfully, my client had the good sense not to tell the investigator anything or sign any statements.

These two experiences are unfortunately typical. Oftentimes the first time a pharmacist even learns that they are being scrutinized by the Board is when an investigator suddenly shows up at their home or place of employment demanding records and signed confessions. Duly intimidated by the Pharmacy Board’s strong-arm police tactics the licensee frequently signs a premade confession or discloses potentially damaging information without first consulting an attorney.

Make no mistake, despite any entreaties to the contrary the Board and its investigators are not your friends and they are not there to objectively assess the allegations to determine their merit; they are there to build the Board’s case against you and parse out info that can lead to additional allegations. I emphatically recommend that as soon as an investigator is at your door to politely decline talking with them or giving any statements and immediately contact an attorney with experience before the Texas State Board of Pharmacy. At that point your livelihood and reputation are plainly at stake. Do not try and go it alone and do not think you can “work things out” with the investigator.

Executive Director of Texas Medical Board Agrees to Overturn Revocations/Cancellations

Louis Leichter — Fri, 12 Jun 2009 14:30:37 -0600

Within the past three weeks my firm has represented two physicians whose licenses had been summarily revoked by the Texas Medical Board pursuant to alleged violations of their Agreed Orders. In both cases the Medical Board had failed to follow proper procedure and adhere to the terms of each physician’s Agreed Order prior to revoking their registrations.

The first case involved a physician on a long-standing monitoring order. The Automatic Revocation Order reneged his license on the stated bases that he had failed to continue timely payments with the Board’s drug testing company and he had submitted several “dilute negative” specimens. First and of most importance, this physician was never provided proper notice of the informal show compliance proceeding and accordingly never showed up at the hearing, directly resulting in the revocation. The notice of hearing had been sent to the physician’s old address despite the fact that he had previously filed the appropriate change of address form with his compliance officer.

Furthermore, the specific terms of his Agreed Order did not allow the Texas Medical Board to revoke his license for either late payments to the drug testing company or submitting dilute negative samples. In summary, not only did he not receive notice of the show compliance hearing, but the stated reasons for his revocation were illegal under his existing Board Order. Thankfully due to the quick intervention of my firm, the Executive Director of the Medical Board agreed to overturn the revocation and set the matter for a new show compliance proceeding. Unfortunately, my client had in the interim already lost his job and been subject to a public HIPDB report noting the revocation.

The second physician was revoked on the grounds that he had not kept up with his CME requirements. Again, this doctor was not given proper notice that the Medical Board was considering cancelling his registration until less than a month before the deadline date and moreover this was conveyed in an ambiguous letter discussing other matters. Understandably, the physician sent in a letter to the Board letting them know that he was presently enrolled in a Masters of Health Administration program and accordingly would be unable to complete the CME within such a short timeframe.

Apparently disregarding the letter, the Medical Board went ahead and cancelled his registration. The physician subsequently hired me and I was able to have the cancellation overturned through a letter to the Board’s Executive Director. The Board also agreed to give him additional time to complete the CME.

I think the experiences of these two clients demonstrate that timely intervention by counsel can make a huge difference and greatly mitigate the negative impact of an adverse Board action. Any physician facing a Board issue should seriously consider conferring with an experienced attorney so that they can head off such situations before they can harm their practice and reputation.

Board of Nursing Intimidation of Nurses Through Formal Charges

Louis Leichter — Fri, 12 Jun 2009 12:08:26 -0600

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.

Recent Rule Changes at the Texas Medical Board

Louis Leichter — Fri, 12 Jun 2009 11:41:37 -0600

Recent rule changes by the Texas Medical Board will be taking effect on June 19^th. Licensed doctors and licensed physicians in the state of Texas ought to be aware of these changes. The attorneys of the Leichter Law Office has the experience and expertise necessary to assist medical licensees or medical license applicants in these and other issues relating to your medical license.

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22 Tex. Admin. Code § 173.1(b)(1) (2009) (Tex. Med. Board, Profile Contents)

(a) The Texas Medical Board (the “board”) shall develop and make available to the public a comprehensive profile of each licensed physician electronically via the Internet or in paper format upon request.

(b) The profile of each licensed physician shall contain the following information listed in paragraphs (1) – (27) of thus subsection:

(1) full name as the physician is licensed;

(2) – (27) (No change.)

Subsection (b)(1) previously read “full name as the physician requests that it be published;” with this rule change in effect the physician’s name will be published as it reads on the license, not when the physician requests it be published.

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22 Tex. Admin. Code § 190.8(1)(L)(iii) (2009) (Tex. Med. Board, Violation Guidelines)

Notwithstanding the provisions of this subparagraph, establishing a professional relationship is not required for a physician to prescribe medications for sexually transmitted diseases for partners of the physician's established patient, if the physician determines that the patient may have been infected with a sexually transmitted disease.

This new subsection will be amended to the current § 190.8(1)(L). A physician need not establish a professional relationship with the partner of a patient to prescribe medications for STDs if the patient with whom the physician has a professional relationship has the STD. This new subsection seems to allow the physician greater flexibility in controlling the spread of STDs quickly and effectively.

Nevertheless, the Leichter Law Firm recommends being aware of the partner’s medical history and relationship with your patient in order to protect yourself and your license to practice in Texas.

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Whether registering your medical license with the Texas Medical Board, defending yourself in an investigation before the Texas Medical Board, or concerned that your medical license or practice might be in danger, you will need a competent and experienced medical license attorney to assist you. Going it alone against the Texas Medical Board risks your medical license and your livelihood. The attorneys at the Leichter Law Firm have the experience and expertise in dealing with the Texas Medical Board and assisting doctors and physicians in all of their medical licensure needs.

Texas Medical Board Seeks New Legislation Targeting Pain Clinics

Louis Leichter — Tue, 14 Apr 2009 15:29:03 -0600

The Texas Medical Board is presently lobbying the State Legislature to pass a new bill which would grant them extensive new regulatory authority over pain management clinics. Available for public view on the Texas Legislature’s website as House Bill No. 4334, this legislation would enact Chapter 167 of the Texas Medical Practice Act and extend to the Board far-reaching power over the practice of pain medicine in Texas. As any physician specializing in this area can attest, this is concerning as the Board’s track record in regulating the practice of pain medicine is shaky at best.

The proposed bills’ coverage encompasses all “pain management clinics” which in turn is broadly defined as:

a publicly or privately owned facility for which a majority of patients are issued a prescription

for opioids, benzodiazepines, or barbiturates, including carisoprodol.

There are a number of exceptions for clinics associated with medical schools, hospitals, certain hospices, and facilities maintained and operated by the federal or state governments, however, the proposed scope and impact of the statute is otherwise quite extensive.

There are two crucial features of the bill. The first is that it requires covered pain management clinics to obtain and maintain a special license through the Texas Medical Board. This is independent of any individual state medical license held by the owner/operator and any physicians employed by or on contract with the clinic. This is critical because where there is a license, there is regulation and the bill does not disappoint in this regards. The proposed statute mandates that the Board implement rules necessary to address an extensive set of issues, including:

1) the operation of the clinic;

2) personnel requirements of the clinic, including requirements for a physician who practices at a clinic;

3) standards to ensure quality of patient care;

4) licensing application and renewal procedures and requirements;

5) inspections and complaint investigations; and

6) patient billing procedures.

Make particular note of number 3 above; depending on how this is interpreted and implemented, this could be used by the Medical Board as a carte blanche for them, through this grant of rulemaking power, to effectively set the standard of care in pain management. As an attorney who had represented many physicians in pain management cases, I find this particularly disturbing as it has been my experience that the Texas Medical Board usually pursues these cases based on an out-dated and extremely conservative view on what is the appropriate standard of care and when and how a patient with chronic pain issues should be treated.

The second striking feature of the bill is its severe restrictions on who can own, operate, or work at a pain clinic. The law would bar anyone who has ever been denied a license under which they may prescribe, dispense, administer, supply, or sell a controlled substance, had such a license restricted, or been the subject of a disciplinary order related to drugs and alcohol from owning or operating a pain clinic, serving as an employee at one, or contracting to provide services with such a clinic. This barrier is absolute; it does not matter how long ago the restriction, denial, or disciplinary action occurred nor whether any restriction is still active. No consideration is taken of the facts and circumstances surrounding the prior disciplinary action, subsequent rehabilitation, or the length of a person’s sobriety.

Moreover, an additional provision prevents any person from owning or operating a pain clinic if that individual has been convicted or pled nolo contendre to either 1) any felony or 2) a misdemeanor which is related to the distribution of illegal prescription drugs or a controlled substance. Finally the owner/operator is required to be on-site for at least 33 percent of the clinic’s operating hours and review at least 33 percent of the total number of patient files of the clinic.

While there is a genuine need to ensure adequate oversight of pain management clinics, I fear that if passed the above law will likely only increase the regulatory burden on pain doctors in Texas, a group that already suffers from a disproportionate number of disciplinary actions and investigations led by the Medical Board. Until the Texas Medical Board discards its out-of-date views on the treatment of chronic pain and embraces the new medical consensus that this is real, persistent, and under treated problem, I fear that the proposed bill will only make it more to difficult to safely practice this needed discipline in Texas.

I would also like to stress in closing that any pain physician who is being investigated by the Texas Medical Board should contact an attorney immediately as the consequences of going it alone are typically disastrous. The Board routinely seeks a revocation in such cases on the assumption that the physician must be running a “pill mill” dispensing a standard set of medications without regard to each patient’s individual condition and needs. Even when a revocation is not on the table other common sanctions include restrictions on the physician’s DEA and DPS certificates, restrictions on the doctor’s ability to supervise physician assistants and nurse practitioners, and the imposition of a chart monitor. Any of these sanctions can be considered a restriction on the physician’s license and hence led to exclusion from third-party networks and other credentialing bodies, with the former being a potentially fatal development for many practices.

If you are being pursued by the Texas Medical Board in a pain management matter it is well worth your interest to contact an attorney with experience both before the Board and in administrative litigation generally and in representing pain specialists and their clinics.

Texas State Board of Pharmacy Overreaches Statutory Mandate

Louis Leichter — Mon, 06 Apr 2009 15:42:49 -0600

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.

The only real explanation for this outrageous policy is a desire to punish pharmacists merely for the fact that they are on criminal probation and thereby guard the public image of the Pharmacy Board. There is no rational reason for summarily revoking a pharmacist who is on deferred adjudication for a drug-related offense. This is underlined by the fact that the Board freely permits chemically dependent and impaired pharmacists to continue to practice. Almost by definition these licensees have committed acts that would be deemed, had they been prosecuted, criminal possession, prescription fraud, and any of a number of offenses under the Texas Health and Safety Code. Many of these licensees also have ongoing addiction and chemical dependency issues, a circumstance which would arguably make their continued licensure more dangerous to public health and safety.

Furthermore, in my practice I have served as the defense attorney for hundreds of other licensed health care professionals before the Texas Medical Board, the Texas Board of Dental Examiners, and the State Board of Veterinary Examiners. These agencies are all notable because they all regulate licensees who hold prescriptive authority. None of these agencies have a similar provision in their administrative Rules. It is unclear why these Texas Boards feel that the public health and safety is safeguarded by permitting their licensees, who are also on felony deferred adjudication, to continue to practice under probated suspensions or subject to a reprimand whereas the Pharmacy Board demands outright revocation as a matter of law. Likely they realize that revocation as a matter of law is unreasonable, overly draconian, and likely beyond the bounds of their administrative authority. Even a Texas criminal court has greater discretion in fitting an appropriate punishment to each case.

It remains to be seen whether or not Rule 281.64 can actually withstand legal scrutiny in a full contested case or declaratory judgment action. I feel confident that it cannot, however, even challenging this Rule places the pharmacist in a position where they have spend extensive legal fees, not to mention time and frustration, to circumvent Rule 281.64.

The lesson any pharmacist or pharmacist tech should take away is that if you are on deferred adjudication for a drug-related offense you should seek the advice of an attorney immediately. This attorney should also be someone who is familiar with the Texas State Board of Pharmacy, the Pharmacy Act, and the applicable administrative rules. Early intervention can mean the difference between continuing as a pharmacist and losing your license and source of income.

Texas Board of Nursing Revokes Licenses in Violation of Due Process Requirements

Louis Leichter — Fri, 13 Mar 2009 23:28:22 -0600

Over the last two weeks our law firm overturned two default revocations entered by the Texas Board of Nursing’s Eligibility & Disciplinary Committee (E&D) from their meeting on February 12, 2009 wherein they revoked over twenty Nursing licenses. The two nurses represented by us has been denied due process and had essentially had their property interest in their nursing license taken in violation of the Texas and United States Constitutions.

In one case the Nurse had properly responded to the Formal Charges filed by the Board of Nursing’s Staff Attorney and could demonstrate proof that their response had been received. Nevertheless, Staff of the Nursing Board presented the case to the E&D maintaining that the nurse had failed to respond or communicate with Staff of the Board.

In the other case the nurse did not receive notice of the E&D committee hearing from the investigator until two days after her license had been revoked. This is hardly adequate notice and was substantiated by the records maintained by the United States Postal Service. In spite of this fact the case was presented by Staff to the unsuspecting Board Members on the E&D Committee and the vote / decision to revoke was entered.

Our firm filed a Motion for Rehearing in both cases which was granted by the Nursing Board’s Executive Director, Katherine Thomas, pursuant to a newly adopted rule. In one case the Motion for Rehearing was granted one day after the motion was filed by our firm‘s lawyer. On the one hand Staff of the Board should be applauded for correctly amending such a vast and unjust taking -but on the other what about those twenty or so nurses who might have been harmed in a similar way.

If you have been the victim of this type of injustice / action and your RN or LVN nursing license / registration was revoked under similar circumstances then please contact us or visit the firm’s website for more information concerning help available to you. Time is of the essence as a failure to act promptly justifies the Board’s impermissible taking as a matter of law.

Board of Nursing Overreaches Mandate in Pursuit of Ancient Criminal History

Louis Leichter — Tue, 13 Jan 2009 15:22:56 -0600

As most Texas nurses are now aware, the Texas Board of Nursing has for several years been performing criminal background checks as part of the renewal process. Each year a certain number of nurses who are up for renewal are required to submit fingerprints for an FBI background check. Those persons who lack any criminal history or who have previously disclosed that history to the Board need not worry. However, any licensees who do have an undisclosed criminal matter, even a minor one, should be concerned as the Board will likely use that record as an excuse to open an investigation and vigorously probe for any history or other indications that they feel indicates the person may lack fitness to practice nursing. Perhaps the most frustrating part of the Board’s policy is that they will apply the same searching examination no matter how old or miniscule the criminal record.

As an example, I recently served as the attorney for the spouse of a former client, who is also a nurse. His issue was that he recently received a letter from a Board investigator stating that a twenty year old arrest for misdemeanor possession of marijuana had popped up during his renewal background check and that they were opening an investigation based on it. The charge was so old that my client didn’t even remember it which is also the reason he had not disclosed it the Board. The arrest in fact is so old that it predates his entrance into nursing school. Furthermore, the fact that only an arrest showed up indicates that the local prosecutor likely decided that the matter was so minor that it did not warrant prosecution. Yet, the Board’s desire to pursue this old charge meant that he had to contact me and I dutifully sent a not so nice letter to the Board telling them to back off.

Essentially the Board is wasting state tax dollars and subjecting veteran nurses to searching and oftentimes humiliating investigations on the basis of decades-old minor criminal offenses which likely committed before the person was even licensed. This goes well beyond any investigatory/disciplinary mandate extended by the state legislature when they granted the Board the authority to perform extensive background checks as part of the renewal process.

The Texas Board of Nursing’s functions do include the screening of new and current licensees for the kind of criminal record which could indicate that they lack fitness to practice nursing. However, this authority does not extend to investigations and possible disciplinary action based on minor offenses committed one or two decades ago with years of uninterrupted, problem-free practice in the interim. All this does is waste Board funding and misdirect their limited resources away from pursuing licensees with genuine and ongoing issues that raise real questions about their safe practice.

It is unfortunate that it often takes the hiring of an attorney to convince the Board to retreat from this type of baseless investigation since they should never occur in the first place. It has been my experience as an attorney in many of these cases that the Board is essentially using the old offense as an excuse to sift into the nurse’s record and try and find anything which can then be added on as firmer grounds for disciplinary action. For example, the nurse will frequently be asked to submit to a polygraph examination and post-test forensic evaluation. As I have discussed elsewhere in my blog the Board has no authority to request this and the nurse is full within their rights to simply refuse. The problem is the nurse is never informed of this right of refusal as submission to test is presented as a mandatory matter-of-course. Following this the Board will habitually make an inappropriate referral to TPAPN based on the original criminal matter and whatever admissions or suspicious responses result from the polygraph and interview. Again the foundation for all of this can be nothing more than a decades old DWI or possession charge.

Any nurse facing such a situation should consider hiring an attorney with experience representing clients before the Texas Board of Nursing. Unless they face a lawyer who knows what is and is not within their authority, the Board will likely try to initiate their own minor inquisition into your work and life history.

Texas Medical Board Makes Progress in Reducing Application Processing Times

Louis Leichter — Wed, 07 Jan 2009 12:33:41 -0600

Now that 2008 has come to a close, it has become clear that the Texas Medical Board has made significant strides in reducing the amount of time it takes to process first-time applicants for a state medical license. A combination of far-reaching medical malpractice reform and a growing population, has led to a large influx of new doctors seeking to practice in Texas during the past few years. Initially, the Board’s licensure department had trouble coping with the new strain leading to a long waiting period for physicians, even those who did not encounter any eligibility issues during the licensing process. As an attorney for many physicians who did face eligibility problems- such as a prior disciplinary or criminal history-, I remember waiting for a year and sometimes even more for the Medical Board to complete their initial processing of an application let along the initiation of their investigation or the scheduling of an appearance before the licensing committee.

Through the hiring of new licensing analysts and the streamlining of the application process, however, the Medical Board has cut down the amount of time a doctor spends in the licensing process, particularly those who lack any eligibility issues. One such innovation is the Board’s new Licensure Inquiry System of Texas (LIST). LIST allows each physician to obtain an online status page for their application. It lists each item required as part of their application and notes whether or not they have been received. This is a welcome change as in my experience a big part of the problem was the large number of different documents needed by the Board and the difficulty for both myself and applicants in learning exactly what was still needed and confirming when it was in receipt.

For example, I recently represented a physician who had been trying for over three years to obtain a Texas medical license. Prior to seeing me she had submitted her application three times and had even hired an attorney at one point to assist her in the process. Unfortunately, this attorney was not entirely familiar with the Texas Medical Board’s procedures and had been unsuccessful. Part of the problem for my client was that she had some eligibility issues which meant the Board was requiring her to submit various documents and letters from her medical school, residency program, and employers. The Board mandated that these be sent directly to them from their authors in a special sealed format. Each time my client had dutifully requested that the relevant parties send them in the specified format only to be frustrated when they were either sent incorrectly or the Board failed to either confirm or deny their receipt. Even with numerous extensions she would invariably fail to have her entire application completed by the deadline and therefore have to completely restart the application procedure.

Thankfully I was recently able to help this physician through the process and obtain her license. Hopefully, the new procedures such as LIST system will help avoid such situations in the future. Regardless the Board still needs to transfer its progress on the processing of applications from problem-free applicants to those from physicians with eligibility challenges.

As you can perhaps tell from the above example, the licensing process can sometimes be a Byzantine and daunting process for physicians, especially those who can expect to confront eligibility issues. Physicians who anticipate or who are already confronting such obstacles should seriously consider seeking the aid of an attorney familiar with navigating the Texas Medical Board’s licensing procedures. The hand of an experienced counsel can significantly cut down on the stress and confusion attendant with the application process and help ensure that you come out the other end with a state medical license.

The Texas Medical Board, Agreed Orders, and Insurance Provider Networks

Louis Leichter — Mon, 05 Jan 2009 16:25:52 -0600

When a physician is involved in a disciplinary proceeding with the Texas Medical Board, Department of Public Safety, or other governmental entity that will likely result in some variety of Board order, it is critically important to carefully craft the final agreement so as to avoid trouble down the line. All provider networks have standing policies regarding the credentialing of physicians who have been sanctioned by a state agency. Many of them can be particularly harsh and can bar a physician from inclusion in their network if they have an active disciplinary order.

Frequently, the physician’s well-meaning but uninformed attorney will obtain, and advise their client to accept, a disciplinary order that imposes a relatively minor sanction. Later, the doctor, as required, discloses the occurrence of the Board Order on their credentialing renewal applications. The Provider networks will then deny re-credentialing on the basis of the disciplinary order. The physician is then put in the difficult position of being fully licensed to practice yet suddenly unable to see a potentially broad section of their former patients. Absence of credentialing with key networks can also jeopardize a physician’s position in a group practice or institutional setting.

An experienced attorney with a full understanding of the possible implications of any given outcome can work from the start with the physician and the Texas Medical Board with an eye to ensuring a result that will not damage that doctor’s standing within provider networks and place them in a good position to obtain credentialing with new networks in the future.

Outside of an outright dismissal, this can oftentimes be done through an order that is remedial, not disciplinary in nature. Such an order could provide for additional CME hours or the payment of an administrative penalty. This can be particularly appropriate where the allegations relate to inadequate record-keeping, over-billing, or a minor violation of a standing Agreed Order. An added benefit of such an agreement is that they typically terminate as soon as the penalty is paid or the extra CME hours are completed removing them from the purview of many provider networks’ policies excluding physician’s who are under active Board Orders. Such an agreement also does not involve any restrictions on a physician’s practice or prescribing authority, another plus both on its own and when dealing with insurance networks.

Another option may be to seek a confidential rehabilitative order. This often applies to physicians with chemical dependency or intemperate use issues. Such a confidential order remains secret as long as the physician remains in compliance and does not have to be reported to the National Practitioner Data Bank or disclosed to provider networks.

Either of the above choices typically requires careful preparation of the client and their case for presentation to the Medical Board. It may involve the gathering of extensive mitigating and remedial evidence. The key point is to convince the Board that the licensee has recognized and accepted responsibility for their error and has taken the remedial steps necessary to prevent any reoccurrence of the underlying allegations such that a minor order would be warranted in their case.

This difficult task is best accomplished by an attorney familiar with the Texas Medical Board and its procedures and who is also aware of the potential consequences a given order can have on a physician’s credentialing status in provider networks. Trying for the best resolution rather than a merely acceptable one will pay off later by avoiding the additional stress, attorney’s fees, and lost patients that travel with credentialing denials.