Texas Medical Licensing Law Blog

Texas Board of Nursing and Social Media

Louis Leichter — Fri, 11 May 2012 13:50:17 -0600

In the past few years, my Firm has handled an increasing number of cases with the Texas Board of Nursing involving social media websites and the disclosure of confidential patient information. This can be a confusing topic as there is considerable gray area as to what constitutes the impermissible release of patient information and what is an appropriate communication by a nurse in a public forum.

Every nurse is aware of the duty to safeguard patients' identities and confidential health information. Maintaining this confidentiality is a requirement under both federal and state health care privacy laws as well as one of the Texas Nursing Board's minimum standard of nursing practice. In most circumstances, nurses are well aware of how to protect patient confidentiality and are knowledgeable of the procedure to follow when it appears as though a privacy breach has occurred. The growing prevalence and usage of social media and smart phones, however, has significantly increased opportunities for the improper release of confidential information and the resulting receipt of a Board complaint.

A greater awareness of this problem has led the Texas Board to directly address this issue in both its October 2011 and April 2012 quarterly newsletters. In these articles Board Staff outline several representative scenarios involving the improper disclosure of patient information and discuss what went wrong. While limited in content, these articles are helpful in that they provide some indication of the Board's approach to this issue and general guidance on what is considered to cross the line.

A common thread through the Board's examples is the limited control a nurse can exercise over communications posted on the internet or sent via social media. As an example, one of the scenarios discussed in the Texas Board of Nursing's April 2012 quarterly newsletter involves a nurse who posted in the comment section of her local newspaper's website. Although the content of the post did not identify the patient in any way, the Board's concern was that someone familiar with the nurse or patient's family could infer the patient's identity. To the Board's credit, the article states that this nurse was only issued a warning letter informing her that any future improper disclosures could result in disciplinary action.

As seen in the above example, the posting of even veiled statements about a patient that do not disclose the patient's identify can be problematic. This is because a posting on a public website can be viewed by potentially anyone. While the same statement to one person may be sufficiently disguised to prevent a confidentiality breach, another individual may have sufficient outside knowledge to guess the patient's identity and thereby be exposed to protected health information. In contrast to a one-on-one verbal exchange, a nurse who writes about work on Facebook, an online messaging board, or even in an email, has little control on who will subsequently view it. Additionally, the nature of online communications is that they will often remain in place indefinitely.

If a nurse has disclosed confidential patient information, the Texas Board of Nursing will take into account factors such as whether it was intentional or not, the nature of the information disclosed, how it was disclosed, and what sort of remedial measures taken by the nurse to correct it. Cases where the statement at issue has been carefully obscured by the nurse in order to protect the patient's identity can often be dismissed if handled appropriately by an attorney. As stated above there is always substantial gray area where it is not clear what constitutes an improper disclosure.

In the ongoing debate on patient confidentiality and social media, it is imperative to remember that nurses should retain the ability to discuss cases amongst themselves as this is an important source of learning through shared experience as well as a way to blow off steam in what is a difficult profession. A nurse must keep in mind to do so in an appropriate manner, however, and to avoid online discussions, even in a nurses only forum, due to the lack of control over who may ultimately view the communication. The bottom-line is that the Texas Board of Nursing's general approach in this area is highly conservation and Staff frequently pursue cases against what to an independent observer would not constitute an improper disclosure.

Any nurse who is already facing an investigation by the Texas Board of Nursing for the disclosure of confidential patient information should contact an attorney. It has been the experience of the attorneys at the Leichter Law Firm that early intervention by a seasoned nursing board lawyer can substantially impact the ultimate outcome with the Texas Board of Nursing.

Warning to Texas Physicians - Violation of Medical Practice Act Being Treated as a Felony Offense

Louis Leichter — Tue, 10 Apr 2012 14:43:51 -0600

Physicians that treat chronic pain patients or prescribe a large volume of narcotic pain medications ought to be increasingly aware of the pressure that is being exerted by the Texas Medical Board, the Drug Enforcement Administration (DEA), and their multi-agency task force. We have drawn attention to the crackdown on alleged “pill mills” and alleged non-therapeutic prescribing on this very blog. Likewise, we have previously highlighted the pain clinic legislation that allows the Medical Board to monitor those practices more closely (see Occ. Code Sec. 167 and Board Rules Sec. 195). The physicians who have been found in violation of these laws, have felt the negative impact on their ability to practice- loss of their DEA controlled substance certification, restrictions on their practice, and/or revocation of their medical license. In fact, our attorneys have successfully represented many physicians, as well as other health care professionals, who have been targeted as part of this combined state and federal initiative.

More recently, the State of Texas has started charging these same physicians criminally, meaning potential felony convictions and lengthy prison sentences. The State’s legal theory is that Texas Occupations Code sec. 165.152 allows them to charge these violations of the Medical Practice Act (Act) as a third degree Felony. The most troubling implication of the State’s legal theory, however, is that if it is accurate Texas prosecutors could conceivably bring felony charges for any violation of the Medical Practice Act, no matter how insignificant. The State’s legal argument has not yet been challenged in court, but we believe that it does not hold up upon review of the statutes.

It might help to set up a quick factual scenario similar to those we have seen recently. A physician takes a position with a clinic, whose clientele are at least 50% chronic pain patients. In order to comply with Occupations Code Sec. 167, the clinic must obtain a pain clinic certification from the Texas Medical Board. The physician applies for and receives the pain clinic certification. However, according to Board rule 195.2(a)(1), the certification can only be held by the clinic’s owner, and since this physician is not the owner of the clinic, he is in violation of the Act. If it correct that the criminal liability provisions of the Texas Medical Practice Act treat any violation of the Act as a felony criminal offense, then this physician could now be charged and prosecuted for a third degree felony by the State of Texas. In fact, this exact scenario is currently playing out in one Texas' largest metropolitan areas.

The State's belief that virtually any violation of the Texas Medical Practice Act can be classified as a felony is not borne out by a reading of the applicable statutes. Section 165 of the Act sets out the penalties for violations of the Act and Board rules. Criminal penalties for violations of the Act are set out in Subchapter D. There is a general criminal penalty statute (see Occ. Code Sec. 165.151) that states that any violation of the Act is a criminal offense, but if further states that if no penalty is specified, the offense constitutes a Class A misdemeanor. A thorough review of the pain clinic certification statute and rules do not specify a criminal penalty. It follows that, if the State wants to criminally charge that Texas physician for violating the Act, the only offense available is a Class a misdemeanor. Then how can the State charge a physician who violates the above statute with a third degree Felony?

The State has found their authority in the statute that directly follows, Occupations Code Sec. 166.152, which states that a person commits an offense if the person practices medicine in Texas in violation of this subtitle, and further states that the offense for such is a Felony of the third degree. If read out of the context, this statute would justify the State’s prosecution; the physician practiced in violation the Act and this offense constitutes a Felony. However, there are multiple problems with that reading of the statute, and the context and intent of the legislature do not support the State’s legal theory.

First, the offense that Occupations Code Sec. 166.152 has historically referred to is the practice of medicine without a license- not just any violation of the Act. Thus this section has traditionally been targeted against unlicensed individuals who hold themselves out as physicians. There is no precedent for the State’s broad reading of the statute, and it is clear that the Legislature never intended it to be read that way. Senate Bill 1303 that eventually became this statute even contained a preamble that read “An Act relating to the practice of medicine, including the rehabilitation of impaired physicians and the unlicensed practice of medicine; providing a penalty” (my italics). The reading of Sec. 166.152 in context makes it clear that the Legislature was not looking to make every violation a felony, but rather to criminalize the unauthorized, unlicensed practice of medicine.

Second, if Occupations Code Sec. 166.152 could be read to make any violation of the Act a third degree Felony, then any physician who fails to timely change their mailing address with the Board (Board rule 166.1(d)) or complete their 48 hours of continuing medical education every two years (Board rule 166.2) could be charged with a Felony for the violation. This ludicrous result underscores the States faulty legal theory. This absolutely could not be the Legislature’s intent when writing the statute, and of course we would argue that it was not.

Third, the context of Occupations Code Sec. 166.152 does not support the State’s reading. As I noted previously, there is a general criminal penalty statute directly preceding it, Section 166.151, which states that any violation of the Act constitutes a Class A misdemeanor if the penalty is not specified. If Section 166.152 could be read to broadly state that any violation of the Act is a third degree Felony, then the preceding statute 166.151 would be either contradictory or unnecessary.

In conclusion, the pending felony prosecutions under this legal theory are very problematic. If left unchallenged, they subject the defendant physicians to criminal penalties far more serious than restrictions on their medical practice. The possible implications of this development should seriously disturb any physician practicing in Texas. But, I believe that the State’s legal theory is weak and subject to challenge by attorneys who understand the Medical Practice Act and administrative law statutes the State is relying on. Unfortunately, a single case poorly argued could set a bad precedent for other districts. If you are a Texas physician who is facing discipline by the Texas Medical Board and related potential criminal prosecution, please contact the attorneys at the Leichter Law Firm for a consultation. 512-495-9995.

Professional Recovery Network Update: Courtney Bolin Takes Over as Program Director

Louis Leichter — Mon, 19 Mar 2012 11:32:32 -0600

In 2011, Courtney Bolin, LMSW, became the new Program Director of the Professional Recovery Network (PRN). Prior to assuming her duties as the new Program Director, Ms. Bolin had already worked for several years as a social worker / case manager with PRN. Since the start of her tenure, PRN has hired two new social workers, Ms. Emily Abel, LMSW, and Eden Folks, and instituted several notable changes in the program's operation.

For those unaware, the Professional Recovery Program is the official peer assistance program for the Texas State Board of Pharmacy, Texas State Board of Dental Examiners, Texas State Board of Veterinary Medical Examiners, and Texas Optometry Board. PRN accepts both third-party and self-referrals concerning licensed professionals who may be suffering from some kind of impairment issue, whether related to substance abuse or mental health.

If the person is determined to have an issue for which PRN can provide assistance, they will typically be referred to an appropriate expert for an evaluation and any treatment recommendations. Following this the licensee will be asked to sign a PRN participation agreement wherein they agree to follow-through with their treatment plan and conform with standard PRN monitoring conditions, such as drug and alcohol screening for a case involving substance abuse. So long as the individual complies with their contract, their participation in PRN remains confidential. Because of this, PRN referral and assistance can be an attractive option as it avoids the involvement of the professional's licensing board and the potential entry of a board order, which may be public.

In representing numerous pharmacists, dentists, veterinarians, and other licensed professionals, my firm has in the past conflicted with PRN when the client's and PRN's interests do not necessarily match. This has even involved contentious civil litigation with PRN resulting in a substantial award of attorney's fees and costs to one of our clients. Thankfully, under Ms. Bolin's tenure such disputes have been rare and both my office and PRN have almost always been able to work together towards the client's best interest. In addition to this general trend I have noticed several other developments which represent a positive direction for PRN participants.

For example, since assuming leadership of PRN, Ms. Bolin has instituted new protocols ensuring referred persons are better aware of how the PRN process works and the situations in which their case can be forwarded to their licensing board. In my opinion this had been a problem in the past as participants would contact PRN or even sign a contract under the misunderstanding that even if they elected to quit participating their case could not be referred to the board. Trust is integral to good recovery and a willingness to comply with treatment recommendations. Because of this I applaud PRN's upfront efforts to more clearly delineate boundaries and the limits of the program's confidentiality.

It has also been our experience as attorneys routinely representing pharmacists, dentists, and veterinarians before PRN and their respective boards, that Ms. Bolin is very willing to take a proactive approach and work with referrals and participants to ensure they are treated fairly and are not asked to comply with inappropriate treatment recommendations. This includes keeping an open ear to second opinions when the report and recommendations from the original evaluator are unreasonable or not reflective of objective data and prior treatment.

Finally, Ms. Bolin and other PRN personnel have been more ready to advocate on behalf of participants than was true in prior years. PRN has always claimed as one of its core principles a willingness to advocate on behalf of its participants, however, in my opinion such advocacy was often sacrificed to avoid confrontation with treatment providers or the Boards with which PRN contracts. As related above, recently PRN has been more involved in ensuring participants receive fair evaluations and treatment recommendations. This has also extended to other areas such as a recent case were PRN has been very helpful in advocating on behalf of a participant whose license is suspended in another state and all efforts at correcting this situation have been stonewalled.

I am encouraged by Ms. Bolin's stewardship and the fresh start it represents for the program. Hopefully PRN maintains their current direction as I feel it is better for participants and more conducive to maintaining their trust, ensuring good treatment outcomes, and assuring sustainable recovery and health.

The Texas Board of Nursing and the Changing Landscape of its Disciplinary Process

Louis Leichter — Thu, 19 Jan 2012 22:35:02 -0600

I have been representing nurses in disciplinary cases before the Texas Board of Nursing for over ten years. My five lawyer law firm has assisted approximately 1000 nurses in a variety of legal and nursing license matters with the Board. This includes RN’s, LVN’s and advance practice nurses such as family nurse practitioners and CRNA’s. During this time the Board’s Staff attorneys have grown in number from 2 to 6. The Board’s general counsel (Dusty Johnston) has been a constant as has the director of enforcement and the Executive Director –Katherine Thomas. The Staff has grown in number as well with additions made in investigations, enforcement and licensing.

Five years ago the Nursing Board’s case log was backed up and a nurse undergoing an investigation could expect the case to drag on for three to five years. A competent attorney who was familiar with the Board’s processes could expect an informal conference to be afforded to their Client. At this conference reasonable efforts to talk, settle or have the case dismissed would occur before Formal Charges were filed and the matter was set by the nursing board’s lawyers for a contested case hearing at the State Office of Administrative Hearings –SOAH.

Today the Texas Board of Nursing, the enforcement division and its six lawyer Staff have a much different approach. The disciplinary case comes through investigations where it is worked up by an investigator and reviewed by a supervising investigator / team leader. While the team considers material filed by the nurse and their attorney, if there is reason to believe the nurse has violated the Nursing Practice Act the nurse is sent a proposed agreed order for their review. At this juncture one can ask for an informal conference but unless the case is practice related and the evidence is tenuous the request for an informal is unlikely to be granted. Instead, the Respondent Nurse can either accept the offer or the case will move on to SOAH for the next phase of litigation. This is an emotional and difficult decision for any nurse and their attorney.

If the proposed Agreed Order is rejected formal charges are filed internally with the Board and posted on the Texas Board of Nursing’s website for public viewing. Employers often balk at nurses who have formal charges filed against them and many are fired as a result even though they are just defending themselves and their license. Although the nursing license is now tagged or marked the nurse has no ability to defend their license through discovery until the Board’s attorneys docket the matter at SOAH and formal discovery begins. This is tacitly unfair but unless the nurse through her attorney requests the matter be expeditiously docketed they just remain in limbo with a mark across their license and name.

Once the matter is docketed a hearing date is set and discovery begins. Unfortunately, the Board of Nursing’s Staff Attorneys do not provide much time for the hearing’s preparation. Skilled defense counsel is required if the nurse is to walk away with a dismissal or a good result. On average our law firm receives settlement offers or dismissals on the vast majority of cases set at SOAH. Approximately ten to twenty per year make it to hearing and this is largely a result of Staff’s failure to objectively look at the evidence or there are conflicting expert reports over the contested issues.

This changing landscape has caused increased uncertainty for the nurse and unless competent counsel is retained a less than desired outcome can be the result. Now, even if the matter ends up dismissed, the public is often made aware of the process through the formal charges and SOAH progression. To the Board’s credit their back log of cases is severely diminished and the timetable to complete a case has been drastically decreased. What this means for the nurse is that a solid proactive and consistent approach to their case is required as anything else can result in an unwanted disciplinary process and action against their nursing registration / license. This process is a matter of public record and becomes a part of the nurse’s permanent licensure file.

If you are going through part of this process or have questions pertaining to your nursing license please feel free to call one of our Texas Nursing Board defense lawyers today for a free consultation -512-495-9995.

Criminal Prosecution of Pain Management Physicians by State and Federal Law Enforcement is on the Rise

Louis Leichter — Sat, 17 Dec 2011 07:54:00 -0600

There has been a recent and rapid rise in the number of physicians being prosecuted for the alleged non-therapeutic prescribing of controlled substances under both state and federal law. In the last week alone I have received numerous phone calls from a variety of medical and osteopathic doctors who had been arrested and/or indicted by the federal government or a local law enforcement branch after a joint investigation by a task force of state and federal agencies such as the Texas Medical Board (TMB), Drug Enforcement Administration (DEA), a local sheriff’s and/or police office and the State Board of Pharmacy. These individuals are being charged by prosecuting attorneys in United States District Court (Federal Court) with crimes under the Federal Controlled Substances Act or in State Court for violations of the Health and Safety Code and the Medical Practice Act. In most cases the basic charge is the delivery of a prescription (to a patient and within the context of the physician’s medical practice) for a controlled substance without a valid therapeutic purpose. Many of the physicians I spoke with questioned why and how the government can substitute its’ clinical judgment for the physicians. Essentially this amounts to a physician being prosecuted and jailed for a standard of care based decision that was once a purely civil or administrative inquiry. My law practice has been handling these cases for years and over the last year the number of inquiries to our attorneys has increased tenfold suggesting the marked rise in government prosecutions is very real.

Oftentimes the Government relies on the sheer number of prescriptions written or the types / combinations of medications prescribed to make its’ case. It then utilizes experts to opine that a reasonable physician would not prescribe this combination of medications to this many patients and thus the treatment of patient X was non-therapeutic. This is a questionable way to go about proving a case, but it does not stop the Government from doing its investigation, arresting the doctor, forcing the surrender of their DEA issued controlled substances registration, initiating the inevitable discipline and loss of the physician’s medical license and the consequent destruction of their medical practice pending prosecution(s). While violations of the administrative rules surrounding the handling and use of prescriptive authority carry civil and administrative monetary provisions, violations of a state or federal statute mean confinement upon conviction and the inevitable loss of the physician’s career in medicine. For many physicians the result has been the very conservative treatment of patients and arguably the under treatment of both acute and chronic pain. I have thankfully yet to see the government pursue a case that involved palliative care.

At this time my case load in this area ranges from a state prosecution involving one patient to federal prosecutions involving hundreds. In all cases the physician’s best defense against the onslaught by the prosecuting attorneys is a well documented medical chart and a well founded reason / rationale for prescribing the medicines. In the cases where these factors are present the prosecution has been slow and labored suggesting the prosecuting attorneys are having trouble pursuing these cases. Moreover, oftentimes when these files have combined efforts between the Texas Medical Board and a criminal prosecuting entity, being cleared of medical mismanagement by the state medical board can be a decisive difference. Therefore, the aggressive defense by the physician on all fronts of attack by both professional licensing attorneys as well as criminal defense attorneys is suggested.

The Texas Medical Board's Remedial Plan -is it really a non-disciplinary order?

Louis Leichter — Tue, 22 Nov 2011 08:11:26 -0600

The Texas Medical Board has a new method of resolving outstanding investigations, courtesy of the 2011 legislative session- the Remedial Plan. If you are a physician with an investigation pending before the Medical Board, you may very well encounter the Remedial Plan. They are being offered frequently. In some cases that will be good news , but contrary to how Board staff may sell it, the Remedial Plan is not suited for everyone.

Let me give an overview of the Remedial Plan. The Board terms the Remedial Plan as a non-disciplinary order. It cannot be offered in instances where the complaint concerns a patient death, commission of a felony, or an instance where a physician becomes sexually, financially, or personally involved with a patient in an inappropriate manner. The Remedial Plan also cannot assess an administrative penalty, or revoke, suspend, limit or restrict a person’s license. Typically the Remedial Plans include continuing education and/or the requirement to take the Jurisprudence Exam. They also could include non-restrictive terms like a physician chart monitor, and they virtually always carry a $500 administration fee.

Despite the limitations on when a Remedial Plan can be offered, there are still many circumstances that qualify, and this is borne out in how frequently Board disciplinary panels are offering them. They are being offered before Informal Settlement Conferences (ISC) in an attempt to forgo the need to hold a hearing. They are also being offered at ISC’s in lieu of other discipline. This all sounds like good news. It is a “non-disciplinary” order after all. However, one corresponding trend that does concern me, as an attorney that is now encountering these Remedial Plans quite frequently, is that Panels are offering Remedial Plans in circumstances where they otherwise would have dismissed the case entirely. The Board Panels feel too comfortable offering the Remedial Plan because it is “non-disciplinary.” It seems the Board Panel can justify offering a Remedial Plan in instances where they could not otherwise justify disciplinary action.

To be clear, there are instances where a Remedial Plan should be seriously considered. The most obvious case is when the physician clearly did wrong, and some sort of action by the Board is assured. However, if there is a chance of the case being dismissal, the choice is not as clear. If you find yourself in such a situation, a lawyer experienced in administrative law should be able to help you determine which category you fall in.

But why should you give it a second thought if it is a “non-disciplinary” order? First, it is still a public order, and as the Board rules exist now, it will stay on your online public profile forever. Anyone who looks up your profile will be able to find it. Additionally, your name will still appear in the Board’s newsletter, albeit in a list, set apart from the disciplinary actions. Second, we do not know how insurance companies, employers, and credentialing boards will treat the Board’s “non-disciplinary” order. There is a chance that they will not view it as non-disciplinary, and may use it as a basis to impose their own discipline, or deny employment or certification. Frankly, it is too early to tell how the Remedial Plan will be treated by these entities.

Ultimately, you should put some serious thought into the ramifications of signing any public order with the Medical Board. If you are a physician and faced with the reality of going before the Texas Medical Board, or responding to a Remedial Plan offer, representation from an experienced Texas administrative law attorney may help. Please feel free to call the Leichter Law Firm for a free consultation regarding your case with the Texas Medical Board -512 495-9995.

Texas Pharmacy Board Update: Crackdown on Houston Independent Pharmacies Continues

Louis Leichter — Fri, 16 Sep 2011 14:26:13 -0600

Several months ago I began a series of posts focused on the combined State and Federal taskforce sweeping the Houston metropolitan area targeting physicians and pharmacists viewed as engaged in the non-therapeutic prescribing and dispensing of narcotics, particularly for the treatment of pain. This process continues to develop and generate new sets of licensees' criminally indicted and/or scheduled for temporary suspension hearings before their respective licensing boards.

With respect to the Texas State Board of Pharmacy, the TSBP has been setting an average of at least two pharmacies, along with the employed pharmacists, every month for temporary suspension hearings. A temporary suspension hearing is an extraordinary remedy designed to immediately remove from operation a pharmacy or pharmacist whose continued practice represents an ongoing threat to the public welfare. A temporary suspension bypasses the normal disciplinary procedure by allowing the Pharmacy Board to immediately remove a licensee from practice pending a final resolution by the Board.

Such hearings can be held with little or no notice to the licensee and are decided by a three-member panel of the Board rather than an independent administrative law judge. For a number of reasons, these hearings are almost always difficult for the licensee. As the Board panel is generally comprised of lay persons without a legal background, the rules of evidence are usually only loosely followed if at all. The short notice given to the pharmacist or pharmacy, oftentimes less than two weeks, permits little preparation time especially given it typically takes the licensee a few days even to locate an attorney. Most importantly, as the panel is comprised of Board members, the hearing's decision-makers are usually very sympathetic and receptive to the arguments and evidence presented by Board Staff. A licensee often, and not without good reason, has the impression that the deck has been stacked against them.

If the Board panel does vote to temporarily suspend the licensee's certificate, the only recourse is to appeal this order to District Court in Travis County. This is also an expensive and time-consuming process and the review provided is limited to determining whether or not the agency abused its discretion, not a full re-weighing of the merits. Moreover, in the interim, the pharmacist and/or pharmacy remains suspended.

My office recently represented two pharmacists, and their respective pharmacies, at a temporary suspension hearing before the Pharmacy Board. The allegations were that the pharmacist had over a period of time dispensed thousands of units of hydrocodone, alprazolam, and carisprodal which they know or should have known were non-therapeutic. The evidence presented by Board Staff at the temporary suspension hearing primarily consisted of a patient list of what they considered the thirty "top-offenders." Notably, the Board investigator, who has no medical background, had never even reviewed these individuals' medical records prior to reaching this conclusion. My firm was able to present evidence and testimony that every one of these patients was receiving appropriate care for their illnesses which for most involved a large array of comorbities. In fact, one of the alleged "top-offenders" was the pharmacist's own elderly mother who was receiving appropriate care from several specialists.

My firm was also able to present evidence that virtually every one of these patients had filled scripts at several other pharmacies, including big chains such as Walgreens, CVS, Wal-Mart, and HEB. Not surprisingly not one of the corporate pharmacies had been prosecuted or disciplined by the Texas Pharmacy Board for filling the exact same prescriptions for the same patients.

Currently, there is no sign that the Pharmacy Board intends to slow down its prosecution of independent Houston pharmacies for the non-therapeutic dispensing of pain medications. Unfortunately, oftentimes the Pharmacy Board appears to schedule licensees for temporary suspension hearing with little to no investigation as to whether they are actually inappropriately dispensing prescriptions, a trend which I believe the case discussed above amply illustrates. A temporary suspension hearing can be completely devastating to an independent pharmacist and make the difference between continuing as an ongoing concern and going out of business even if the licensee is later vindicated. Any Texas pharmacist or pharmacy who receives notice of a temporary suspension hearing should immediately contact an attorney familiar with the Texas Pharmacy Board and its processes.

The Texas Medical Board: Statutory Reforms to the Disciplinary Process

Louis Leichter — Mon, 22 Aug 2011 22:01:12 -0600

The 2011 regular Legislative Session resulted in a moderate reform of the Texas Medical Board’s disciplinary process. The Governor signed House Bill 680 into law on June 17, 2011. The modest reform measures that were ultimately included in HB 680 are not likely to satisfy the longtime proponents of Medical Board reform. A number of the more significant reform measures, like granting a jury trial for revoked physicians, and eliminating the confidentiality of complainants, were left on the cutting room floor. Below is a rundown of the legislative changes that were signed into law.

First, TMB can no longer consider a complaint that is based on care that was provided more than seven years prior to receipt of the complaint by the TMB. Like any statute of limitations, the seeming purpose behind this legislation would be to protect doctors from having to defend against stale complaints about care that was provided in the distant past. Memories fade. Records get shredded (they must be kept for a minimum of seven years according to TMB rules). This is a reasonable change and will decrease stale complaints, but complaints like this are not very common.

Second, TMB can no longer accept anonymous complaints. Some clarification is needed here. This is saying that the Texas Medical Board can no longer accept complaints in which the complainant’s identity is unknown to the TMB. The TMB can still keep the identities of complainants confidential from the physician, if the complainant so chooses. Like the first reform, this will not have a very far-reaching effect since this type of anonymous complaint makes up about 2% of all complaints. Should the complaint go to litigation the attorney representing the physician may be able to pierce the veil of anonymity if the case is to proceed to trial.

Third, a physician taking part in an Informal Settlement Conference (ISC) with the TMB may now request that the proceeding be recorded. The recording would remain part of the TMB’s investigatory file, and would thereby be confidential. Presumably this record of the meeting would act as a check on any inclination the Board might have towards bullying the physician or acting in some way that would seem to be an abuse of their power. The ISC is a legal proceeding in which a semblance of due process is afforded to the physician. At some point the recording may also be helpful should an Agreed Order be presented to the doctor that does not reflect what the panel recommended. Additionally, if the complainant waived their anonymity and made a statement to the ISC panel while being assisted by the Board’s Staff attorney this statement may become relevant if it is contradicted at a later point in the disciplinary process.

Fourth, TMB must inform the physician when a complaint is filed by an insurance or pharmaceutical company, and must disclose the name and address of the insurance company or pharmaceutical company to the physician upon receipt of the complaint.

Finally, after a contested case hearing at the State Office of Administrative Hearings (SOAH), TMB must issue a final Order that implements the Administrative Law Judge’s findings of fact and conclusion of law. The discretion remains with the TMB as to what the appropriate action or sanction should be if a violation is found.

Wave of Temporray Suspensions Target Houston Physicians and Pharmacists

Louis Leichter — Fri, 20 May 2011 12:24:50 -0600

Over the past several weeks there has been an onslaught of temporary suspensions by the Texas Medical Board and Texas State Board of Pharmacy targeting Houston area physicians and pharmacists. These emergency suspensions have all stemmed from the joint state and federal task force combing Harris County for the non-therapeutic prescribing and dispensing of medications commonly used to treat chronic pain: primarily hydrocodone, soma, xanax, and klonopin. Presently, there is no sign that this barrage of suspensions will let up.

Most of the physicians, pharmacists, and pharmacies which have been temporarily suspended seem to have been selected because they have already been arrested or otherwise targeted by the Harris County task force. Moreover, many of these individuals have appeared in local media coverage of the crackdown. Temporary suspensions by the Medical and Pharmacy Board only allow for short notice to the affected practitioner meaning the licensee has little chance to prepare their defense.

Moreover, it has been my firm's experience with such suspensions that the licensee faces an uphill battle as the deciding panel is made up of three Board members, not an independent judge unaffiliated with the prosecuting agency. Generally speaking, such Board panels accept Board Staff's claims and evidence at face value particularly when the practitioner has been arrested or the subject of media attention. The evidence presented in such hearings is usually the testimony of DEA agents or local law enforcement who have been involved in the case. Oftentimes, this involves testimony from an undercover officer who received pain medication from a physician after falsely telling the practitioner they suffer from chronic pain and undergoing an assessment in conformance with the Medical Board's rules on pain management. It is unclear how this constitutes non-therapeutic prescribing as the physician is essentially being lied to by the undercover agent. A Houston pharmacist was likewise recently suspended based merely on the number of pain prescriptions dispensed by their pharmacy as well as the accidental early filling of a single prescription presented by an undercover officer.

Again, the evidence presented is often flimsy at best and likely would not result in an emergency suspension were the matter before an independent administrative law judge. Simply because a licensee has been arrested does not mean the unproven charges will result in a criminal conviction. The unfortunate result of the current approach by the Medical and Pharmacy Board is the suspension of innocent pharmacists and physicians along with those knowingly engaged in the provision of illegitimate pain medication.

A temporary suspension will dramatically impact a practitioner's career and remain a part of their permanent licensure record. Additionally, if the licensee is a physician a report will be generated with the National Practitioner Data Bank and remain there indefinitely. Once a physician or pharmacist is temporarily suspended their only recourse to overturn the suspension is to appeal the case to District Court in Travis County, a process which is neither timely nor inexpensive.

Legally speaking, the temporary suspension of a physician's or pharmacist's license is meant to be an extraordinary remedy designed to immediately remove such individuals from practice due to an imminent danger to the public were they allowed to continue working. Regrettably, it appears as though many of the persons who have been temporarily suspended in the past few weeks have legitimate defenses to the charges levied by their respective Boards. Any physician or pharmacist who receives notice of a temporary suspension hearing should contact an attorney immediately as there will be little time to prepare and a negative result could cause irreparable harm to their career and reputation.

Texas Board of Nursing's Deferred Disciplinary Order

Louis Leichter — Fri, 20 May 2011 10:59:19 -0600

The Texas Board of Nursing has recently started offering a new type of agreed order which allows, with some significant reservations, nurses to avoid a permanent disciplinary mark on their record. Pursuant to the Legislature's mandate that the Board administer a pilot program to study the feasibility of deferred disciplinary actions, the BON has enacted rules governing this program and outlining what type of cases are eligible for the new deferred disciplinary order. For those interested, the enacting statute is located at Section 301.1607 of the Nursing Practice Act and the governing rule is found at Title 22, Section 213.34 of the Texas Administrative Code.

A nurse who receives a deferred disciplinary order can have the order and original complaint dismissed and removed from their licensure record with the Board of Nursing if they successfully complete the terms of the order and receive no further disciplinary actions within the next five years. At the end of the five year period the deferred order is effectively sealed and any record of its existence is removed from the Board's website. Additionally, this disciplinary action is then deemed confidential and is not subject to disclosure to either the public or a nurse's employer.

There are significant limitations to these confidentiality protections. First, prior to the five year mark, the deferred disciplinary order is completely public and will appear in both the Board's Newsletter and on the nurse's online licensure page. Second, as with any Board order, the BON is required to file a report with the Healthcare Integrity Protections Data Bank (HIPDB). As this is a creation of Congress, it is subject to federal law and does not recognize confidentiality protections created at the state level. This means that a record of the disciplinary action taken against the nurse will stay in HIPDB indefinitely and remain accessible to employers regardless of its erasure in Texas.

Eligibility for a deferred disciplinary order is restricted to those cases which can be resolved through either a Warning with Stipulations or less severe order. Matters normally disposed of through a Reprimand, Probated Suspension, Enforced Suspension, or Revocation are not eligible for a deferred disciplinary action. Furthermore cases involving criminal or sexual misconduct, chemical dependency or substance abuse, intentional acts, falsification, or deception are likewise not eligible for the pilot program. The program is designed to apply to nurses whose cases show a lack of situational awareness or a knowledge or practice deficit. Finally, nurses with a prior disciplinary history with the Board cannot receive a deferred disciplinary order.

Its limitations aside, the deferred discipline pilot program is a welcome development and should prove beneficial in resolving marginal cases involving minor violations of the Nursing Practice Act. A nurse with an active case before the Board of Nursing curious about whether they may be eligible for a deferred disciplinary order should contact an attorney experienced in administrative law and in representing clients before the BON.

The Texas Medical Board's New Fast-Track Process for Resolving Minor Cases

Louis Leichter — Fri, 20 May 2011 10:35:30 -0600

The Texas Medical Board receives about 6,000 complaints each year, and in an effort to resolve select “minor” violations of the Medical Practice Act (Act) more quickly, an administrative penalty order has been developed and put into use called the Fast-track Order (Fast-track).

Not every violation of the Act is eligible for a Fast-track. The Fast-track has been referred to as the speeding ticket of the Board’s disciplinary options. Its use is limited to a relatively small list of violations, including: failure to complete continuing medical education (CME) requirements; failure to change address with Board; and failure to provide copies of medical records in a timely manner upon request.

If Board staff determines that a licensee’s alleged violation is eligible for a Fast-track, they will send a brief notice of the allegations to the licensee with a synopsis of the allegations and the deadlines for response.

The licensee is given three choices:

The first option is to plead no contest and pay the fine. Sometimes this can be an attractive outcome if the licensee inarguably violated the Act, and wants to save the time and money of even taking the case as far as an Informal Settlement Conference (ISC). A no-contest plea means that the Fast-track will be entered by the Board, and the licensee’s public profile will be updated to reflect the discipline. The order itself is a brief document, containing only a brief statement of the allegation, but its presence is a permanent mark on the licensee’s public profile.
The second option the licensee is given is to respond in writing to the allegation. The licensee’s right to an ISC is thereby waived, and the written response is considered by the Board’s Disciplinary Process Review Committee (DPRC). DPRC will then either dismiss the case or impose the fast-track penalty without any further input from the licensee.
The final option is to reject the fast-track order and proceed to an ISC, which is to say that the case would proceed through the regular disciplinary process. The licensee would be invited to attend an ISC and discuss the allegations with a Panel of Board representatives.

If the licensee chooses not to answer at all, the Board has the authority to impose the administrative penalty. This happens often if the Board does not have the licensee’s current contact information, and when the discrepancy is noticed by the licensee somewhere down the road, they find themselves mired in bureaucratic quicksand trying to straighten it out.

Ultimately, if you receive a Fast-Track, and you are faced with the prospect of choosing one of the above options, you should realize that each one of the above options has its variables to consider, whether it be the amount of time and money that will be spent, or the visibility of a given disciplinary outcome. If you have received a Fast-Track letter from the Board, it is in your best interests to consult with an attorney to best evaluate your options. The Leichter Law Firm has successfully defended many clients before the Board, and is mindful of the pitfalls of the Board’s disciplinary process. Do not hesitate to call us for a free consultation at (512) 495-9995.

Combined State and Federal Task Force Clamps Down on Alleged Pill-Mills in Houston

Louis Leichter — Tue, 17 May 2011 15:22:33 -0600

Over the last few years substantial momentum has been steadily building on both the administrative and criminal fronts against physicians whose practice primarily or substantially involves pain management and the pharmacists who file their prescriptions. In many instances, this governmental clamp down is fully justified as every pharmacist and physician familiar with this practice area is well aware of the significant problem associated with the non-therapeutic prescribing of powerful narcotics and other controlled substances. Tragically, many physicians and pharmacies who provide legitimate pain control have also been captured in this ever-widening net. The consequences can be severe and can include the loss, restriction, or temporary suspension of the individual/entity's state license, loss of a physician's DEA and DPS controlled substances registrations, substantial monetary fines, and even criminal prosecution.

As an attorney who has defended numerous physicians, pharmacists, and pharmacies in both state and federal administrative and criminal actions, it has been my impression that the pace of this clamp-down has only increased. I hope to write a series of articles detailing different aspects of non-therapeutic prescribing/dispensing cases and what practitioners and pharmacists can expect should they be unfortunate enough to be targeted under this or a related claim. This article will focus on the combined state-federal task force presently sweeping Texas to shut-down so-called "pill mills."

The Pill-Mill Taskforce:

The expression “pill-mill” is becoming an increasingly recognizable term to the general public due to investigative journalistic pieces done by national news outlets like 20/20 and CBS News. A true pill-mill is typically comprised of a network of dubious physicians and pharmacists that dole out controlled substance prescriptions to individuals, based not on medical necessity, but on their cash value on the street.

Along with growing media exposure came the realization by government regulators and law enforcement officials that much of the pill-mill activity in Texas is based in Harris County. In response, a taskforce of interested state and federal agencies and law enforcement entities was formed to combat non-therapeutic prescribing in the Houston area. The taskforce includes members of the federal Drug Enforcement Agency (DEA), the Texas Medical Board (TMB), the Texas State Board of Pharmacy (TSBP), and local law enforcement. The taskforce has been very aggressive in pursuing and sanctioning Houston pain management clinics and pharmacies. As discussed above, the consequences can be severe and extend all the way to convictions for serious felony offenses.

Targeted Physicians and Pharmacies:

The joint task force uses several different methods to select targeted practitioners and dispensing pharmacies. These include utilizing databanks maintained by the DEA to pull down the largest prescribers and dispensers of certain medications within a given county. The task force also refers to the list of pain clinics which were required to register with the Texas Medical Board following the last Legislative session. Other red flags include all-cash transactions, high numbers of daily patients, large or atypical numbers of narcotics and other targeted medications, frequent use of the pain cocktail of Soma, Xanax, and Hydrocodone.

Once targeted, a physician or pharmacy is immediately placed on the defensive as they face a coordinated assault by law enforcement officials, the DEA and DPS, as well as the applicable state licensing agencies. These investigations are accusatory in nature and generally proceed on the presumption that the individual/entity is engaged or participating in non-therapeutic prescribing. Oftentimes the first indication that an individual has been targeted will be an armed raid of the person's practice or pharmacy and the seizing of their prescription or dispensing records. The physician or pharmacist may be asked on the spot to sign a statement or affidavit connected with the allegations or asked by the DEA or DPS to surrender their controlled substances registration.

Again, it bears reminding that the sudden arrival of the task force may only be because the targeted entity showed up high on the DEA's records on the volume of narcotics prescribed/dispensed or some other such indication which, by itself, has little bearing on whether or not such prescriptions are for a legitimate therapeutic need. I have represented several physicians targeted by the task force despite their having in place rigorous safeguards and practices designed to ensure that all prescriptions are for legitimate medical conditions and taken only at a therapeutic dose.

This task force represents the leading edge of regulatory pushback at what has increasingly been identified as a widespread problem: physicians and pharmacies who fuel prescription drug abuse by persons who lack a legitimate medical need. The problem is that this combined dragnet continues to ensnare numerous physicians and pharmacists who provide genuine and legitimate pain relief to Texas patients.

Any physician or pharmacist contacted or raided by the joint task force or any of its individual members should seek legal representation immediately. If you are raided by the task force you should contact an attorney on the spot and refrain from giving any oral or written statement, signing any documents, surrendering your license or controlled substance registration, or acquiescing to any demand without first seeking legal counsel. The stakes are very high and a mistake could permanently prejudice your ability to defend yourself.

Anonymous Complaint Process at the Texas Medical Board

Louis Leichter — Tue, 19 Apr 2011 11:59:35 -0600

Discipline at the Texas Medical Board (Board) is a complaint driven process- meaning that every investigation opened by the Board’s investigators results from the filing of a complaint. The Board receives roughly 6,000 complaints each year, and they come from various sources, including patients, subsequent providers, competitors, former employees, and even the Board itself. Essentially, anyone can file a complaint with the Board, and the Board is required by law to investigate it.

According to Board rule 178.4(c), the complainant’s identity and the complaint itself are expressly confidential as part of the Board’s investigative file, unless the complainant signs a waiver of their confidentiality. A complaint can, therefore, be filed against a physician without the physician knowing the identity of the complainant.

The anonymous complaint process unfortunately makes it easy for a bad-faith complainant to use the Medical Board’s disciplinary process to attack other physicians whether they are rivals to the complainant's practice or have a former employment relationship. Both in my own practice and through discussions with other attorneys, I have encountered other instances where a complaint appears to have originated from an insurer seeking to use the Board as leverage in a payment or coverage dispute with a physician. I have personally been involved in cases where an anonymous complaint originated from a disgruntled spouse. In any case, the Board's anonymous complaint process generally immunizes the complainant from scrutiny or consequences should a complaint be filed in bad faith. Additionally, without their identity, the targeted physician is often precluded from presenting clear evidence of bad-faith or motive on the part of the complainant. Moreover, because anonymous complaints frequently originate from persons with a medical background who are also familiar, sometimes intimately so, with a licensee's practice, they can be crafted in such a way to cause significant damage to the target physician.

The political process has thus far provided no relief from the anonymous complaints process. Two bills have been introduced in the Legislature to change the complaint process and make it more transparent. The Bills, House Bill 3816 introduced and presented to the 81^st Legislature and House Bill 1013 presented to the 82^nd, would have made it impossible for the Board to accept anonymous complaints. The Bills would also have provided physicians better protection from Board claims of inadequate documentation and would prohibit Board discipline for incidents that occurred more than 7 years ago and for documentation errors that did not endanger the patient. To date, neither Bill has been passed, and so the concerns about anonymous Board complaints continue.

If you have received a complaint letter or investigation letter from the Board, it is in your best interests to consult with an attorney to best evaluate your options. This is all the more so if you believe the complaint may have been filed in bad-faith as it has been my experience that these often come in a series with each subsequent complaint becoming increasingly difficult to address.

The Texas Medical Board's Corrective Order Explained

Louis Leichter — Thu, 10 Feb 2011 21:45:01 -0600

In 2010, the Texas Medical Board (Board) implemented a new disciplinary mechanism- the Corrective Order. Briefly, a Corrective Order is a disciplinary Order that is offered to physician licensees before any other informal proceedings take place, with the apparent goal of settling those cases quickly, and in lieu of proceeding with an Informal Settlement Conference (ISC).

Corrective Orders are not offered in every legal case, but rather at the discretion of the Board’s Quality Assurance Committee (QA), which is made up of a mix of Board members, District Review Committee members, and Board attorneys and other staff. Typically, Corrective Orders are offered in cases where the alleged violations rise above the ministerial discipline of the Fast-track Order, but where the factual issues are straightforward enough that QA feels they do not necessarily require a hearing.

If the licensee signs the Corrective Order, the ISC is taken off the schedule, and the Order goes to the full Board for approval and resolution. If the licensee declines the Corrective Order, then it is taken off the table and the case is looked at afresh at the ISC. Typically, the licensee is given 20 days to decide whether to sign it or not.

Each time a Corrective Order is signed, the Board benefits in several ways. Each signed Corrective Order helps the Board’s disciplinary numbers and reinforces the viewpoint that they are actively and successfully protecting the public’s health and welfare. Additionally, each Corrective Order that is signed means that the Board will not have to devote further resources to the investigation and informal settlement process which involves the development of a case file by the TMB Staff attorneys and legal assistants. The benefit to the licensee is not always as clear cut.

Upon receipt of a Corrective Order, there are a number of things that should be considered before deciding either way on it.

First, you do not have to sign it. Rejection of the Corrective Order just means that your case will progress to the ISC stage, just as it would have if one was never offered. Do not feel pressured into signing a Corrective Order.
Second, the Board may not have the whole story. The decision to offer you a Corrective Order is based only on the Board’s preliminary investigation with little or no input from the physician. There is a reasonably good chance that the Corrective Order does not have the facts entirely straight, and that your participation in an ISC would be valuable in clarifying or mitigating the situation.
Third, are you happy with the Corrective Order as written? The Board’s policy so far has been that the content of these Corrective Orders is non-negotiable. If there is an objectionable Ordering Paragraph or objectionable Finding, you have to be prepared to live with it.
Fourth, are you ready to have your name attached to this Corrective Order for the rest of your life? The Corrective Order, once approved by the full Board, becomes a part of your online physician profile. At that point, anyone who searches on your name or license number will be able to pull up and read your Corrective Order.

Ultimately, do not let the offer of a Corrective Order, and its quick turnaround time, lull you into signing something you do not understand or agree with. If you are a physician and faced with the reality of going before the Texas Medical Board, or responding to a Corrective Order, representation from an experienced Texas administrative attorney may help. Please feel free to call the Leichter Law Firm for a free consultation regarding your case with the Texas Medical Board -512 495-9995.

Texas Medical Board Cancels Meeting Rescheduling All Applicants & Appearances

Louis Leichter — Wed, 09 Feb 2011 14:03:30 -0600

The Texas Medical Board (TMB) cancelled the appearance of all physician licensure candidates scheduled to appear before the Board’s Licensure Committee at its February 3 and February 4^th meeting due to inclement weather. The applicants have been rescheduled until the April Board meeting. This will result in the scheduling of probably 40 to 50 applicants at the April meeting.

The Leichter Law Firm is the attorney of record for at least 5 of the doctors including one who has filed a meritorious Motion for Rehearing after a denial from the October meeting of the Texas Medical Board. This is an unfortunate event for at least one-half of the applicants many of who have qualified for a full Texas medical license in every respect, but are waiting to challenge a contention by Texas Medical Board Staff Attorneys that they have submitted false or misleading information on their physician application. As a result they can both sign an administrative order and pay a fine which results in a permanent disciplinary action on their record, or they can challenge the agency’s initial or preliminary determination and appear in front of the Licensure Committee in support of their cause/application. As an Agreed Order of Licensure is a permanent blemish on a doctor’s record, most physician applicants asked to appear before the TMB retain experienced Texas medical board defense attorneys to represent them through the process.

The portions of the Texas Medical Board meeting which could be conducted through phone conferencing was achieved such as the processing and ratification of disciplinary orders and the discussion and adoption of guidelines for mediations of contested cases at the State Office of Administrative Hearings (SOAH). Unfortunately, all appearances before the Board were rescheduled which will result in even more work for the already busy Texas Medical Board members and Staff attorneys. Also rescheduled were all events which required live appearances or witnesses were rescheduled.

The Board and Staff made the decision to cancel early on Tuesday which buy first impressions seemed premature. As the weather developed and snow, freezing temperatures and ice invaded the Austin and central Texas area it became clear that a wise decision was made –albeit to the disappointment of all of the physician applicants scheduled to appear.

Texas State Board of Pharmacy's Ability to Impose Discipline for Violations of Other States' Law

Louis Leichter — Thu, 03 Feb 2011 11:08:25 -0600

Like most health licensing boards, the Texas State Board of Pharmacy possesses extensive authority to discipline pharmacists and pharmacies for violations of their enabling statute, the Texas Pharmacy Act. This includes criminal matters, negligent practice, fraud and deceit, suspected substance abuse/dependency, and anything the Board determines falls within the broad and ill-defined ambit of unprofessional conduct. Unlike most Texas medical licensing boards, however, the Pharmacy Board is also authorized to discipline pharmacists for violating another state's law pertaining to drugs or the practice of pharmacy. This grant of jurisdiction is expansive and raises unique regulatory pitfalls for Texas pharmacists whose practice reaches into other states or who hold licenses in multiple jurisdictions.

Normally, before a Texas licensing board can impose discipline on a licensee for violations of another state's law, the licensing board in the subject jurisdiction must have already entered a disciplinary order in their state. In this event, the Texas board, including the Pharmacy Board, can then discipline the licensed professional in Texas through their reciprocal discipline statute. Through reciprocal discipline the Pharmacy Board need only present the foreign order and is not required to separately prove up the underlying allegations. The same almost always holds true in any other states where the pharmacist or medical professional is licensed. This is one of the primary problems facing a Texas medical professional holding licensure in multiple states: an order in one state can cause a cascade effect of similar disciplinary actions in the other jurisdictions were they are licensed.

The Pharmacy Board's disciplinary statutes go even further, however, and authorize discipline for a violation of another state's laws even in the absence of any action by the other state. As an example, my firm recently represented a compounding pharmacy located in Texas which sold medications to practitioners located throughout the country. This pharmacy, which initially was not licensed in any other jurisdiction, was investigated and subsequently disciplined by the Texas Pharmacy Board due to their lack of the proper non-resident pharmacy permits required in many of these other states. This was despite the fact none of these other states had taken any action against the pharmacy nor were there any indications they planned to do so even after my client had made them aware they had ostensibly been in violation of their regulations. The pharmacy has now been subjected to a disciplinary order in Texas which it will need to report to all the other states in which it has or will soon be licensed. The end result could easily be a series of orders and fines in other jurisdictions pursuant to each state's reciprocal discipline statute. This is all because Texas elected to punish this pharmacy due to its failure to adhere to the law in other states even when such states had declined to impose discipline.

As can be seen above, this far-reaching grant of authority permits the Texas Pharmacy Board to essentially be the enforcer of other state's law and can have serious consequences to Texas pharmacists and pharmacies. Every licensee actively or merely planning to conduct business in another state would be well advised to ensure adherence to the other jurisdiction's laws pertaining to drugs and pharmacy. At a minimum this should involve consulting with an attorney to investigate whether licensing or out-of-state permitting is required by the other state. Failure to do so can lead to an otherwise avoidable disciplinary order in Texas, likely a significant impediment to the continued expansion of your business.

Texas Board of Nursing Implements New Corrective Action Procedure

Louis Leichter — Thu, 13 Jan 2011 12:00:40 -0600

The Texas Board of Nursing has recently created and implemented a new, confidential procedure in which to resolve disciplinary investigations. Typically, the Nursing Practice Act limits the Board’s discretion to resolve a case through anything other than a public Order. In a welcome innovation, the Board now has the authority to settle a restricted set of cases involving minor violations of the Nursing Practice Act through a confidential, non-disciplinary corrective action procedure.

Eligibility for a corrective action plan is limited and at the sole discretion of the Nursing Board’s Executive Director. A nurse may be eligible to have their case resolved through a corrective action proceeding if this is the first time they are being charged with one of the following violations:

Practice on a delinquent (expired) license for more than six months but less than one year;
Failure to comply with continuing competency requirements;
Failure to verify licensure/credentials of person for whom nurse is administratively responsible;
Failure to provide complete and accurate answers to the Board, your employers, or potential employers about matters like your employment history, licensure history, or criminal history;
Failure to comply with Board requirements for change of name/address;
Failure to develop, maintain, and implement a peer review plan according to peer review requirements; and
Failure of an advanced practice registered nurse to register for prescriptive authority in an additional role and population focus area.

See 22 Tex. Admin. Code § 213.32(2)

There are several benefits to receiving a corrective action plan as opposed to a normal disciplinary order. These include:

A nurse is typically ineligible for a corrective action plan if they have committed more than one of the violations listed above. Id. at § 213.32(3). Moreover, if a case has already progressed to a contested case hearing at the State Office of Administrative Hearings, the Executive Director no longer possess the discretion to resolve a matter through corrective action.

Not Disciplinary Action: Corrective Action is not considered disciplinary action. 22 Tex. Admin. Code § 213.32(1);
Limited Penalty: The penalty may only be a fine, remedial education, or any combination thereof. See Tex. Occ. § 301.652(a)(1). Should a fine be imposed the amount for first time offenders is $500. 22 Tex. Admin. Code § 213.32(3). Hence a nurse doesn’t have to worry about having their license revoked or suspended or being subjected to a period of monitoring by the Board;
Finality: Once the nurse accepts the corrective action the case is closed. Tex. Occ. Code § 301.655(a);
Greater Confidentiality: The corrective action is not public information unlike an agreed order or a formal hearing. Tex. Occ. Code § 301.652. As a result it is not subject to public disclosure, does not appear in the Board’s Newsletter, nor is it reported to the Healthcare Integrity and Protection Databank;
Non-Admission of Guilt: A person’s acceptance of corrective action does not constitute an admission of a violation but only constitutes a plea of nolo contendere. Tex. Occ. Code § 301.657. However, if the board imposes a sanction on the person for a subsequent violation then it may treat a person’s acceptance of corrective action as an admission of a violation. Id.

It is important to note that the Legislature has included a provision within the authorizing statute requiring that the nurse accept an offer of corrective action within twenty days of receiving the proposed resolution from the Board, otherwise the Executive Director will have to pursue the complaint via the normal investigation process which could end with a public disciplinary action. Tex. Occ. Code §§ 301.654, 301.655.

As an attorney who represents numerous nurses before the Texas Board of Nursing each year, I view this as a positive initiative which should prevent relatively minor disciplinary issues from resulting in a potentially embarrassing public order. In fact, if anything, I feel the Board of Nursing could benefit from even greater authority to resolve cases through the kind of confidential order/process that is available to other state licensing entities such as the Texas State Board of Pharmacy and the Texas Medical Board through the new Physician Health Program.

The corrective action procedure has been especially helpful in my own practice for cases involving a nurse’s isolated failure to disclose minor criminal history on a licensure or renewal application. In the past, this could only be resolved through a public remedial education order which would remain on a nurse’s record indefinitely and be published in the Board’s Newsletter.

Any nurse with an active investigation with the Texas Board of Nursing would be well advised to consult with an attorney as to whether or not their case may be eligible for resolution through a corrective action plan. As stated above, this is an opportunity which can disappear once a case has proceeded to an advanced stage leaving a nurse with a limited choice between either litigating their case to its conclusion or accepting a public disciplinary order even if the Board’s allegations are of a de minis character.

One Rule to Catch Them All: Licensing Board's Use of Unprofessional Conduct

Louis Leichter — Thu, 18 Nov 2010 16:33:06 -0600

As a general rule, licensing Boards such as the Texas Medical Board, Texas Board of Nursing and Texas State Board of Pharmacy are prohibited from exceeding the powers granted to them by the Legislature. The Legislature passes enabling statutes that create the licensing Boards and circumscribe their jurisdiction. The Boards may then pass administrative rules expounding and filing in the blanks of areas which the Legislature has order them to regulate. These rules cannot conflict with the statute, however, and are, in fact, subordinate to it. Thus, if the Legislature did not give them the power to regulate a particular activity, the Boards generally cannot expand their jurisdiction to regulate that activity by adopting an administrative rule. Problems arise, however, when the statutes are imprecise or vague in limiting the Boards’ powers.

Given the multitude of laws instituted by our Legislators, imprecise and vague definitions are bound to crop up. Such is the case with the term “unprofessional conduct.” As an example, the Medical Practice Act allows the Texas Medical Board to discipline its licensees if they commit “unprofessional or dishonorable conduct that is likely to deceive or defraud the public, or injure the public.” Tex. Occ. Code 164.052(a)(5). Note that there need not be any actual harm done. While the statute goes on to give some guidance as to what conduct deceives or defrauds the public (Tex. Occ. Code 164.053) it gives us no definition of what constitutes unprofessional or dishonorable conduct that is likely to injure the public.

Similarly, the Texas Board of Nursing is allowed to discipline nurses for unprofessional or dishonorable conduct that, in the board’s opinion, is likely to deceive, defraud or injure a patient or the public. Tex. Occ. Code 301.452(b)(10). Likewise, the Texas State Board of Pharmacy can discipline its licensees for both unprofessional conduct and gross immorality. Tex. Occ. Code §§565.001(a)(2)-(3). Troublingly, the Legislature appears to have left it in the hands of the Pharmacy Board to determine the definition of unprofessional conduct and gross immorality.

How do the licensing Boards use this power? The Boards have frequently used this provision as a hook to discipline licensees over whom they would otherwise have no statutory power. For example, the Medical Board is explicitly allowed to discipline licensees for convicted misdemeanors if the misdemeanors can be related to their practice as a physician (Tex. Occ. Code § 53.021(a)(1)) or involve “moral turpitude” (Tex. Occ. Code § 164.051(a)(2)(B)). Moral turpitude is another vaguely defined term; it is generally implicated in crimes involving fraud or deceit but is otherwise difficult to characterize and apply. Regardless, by classifying other misdemeanors as “unprofessional conduct”, however, the boards can extend their powers beyond the limits set by the Legislature.

The Board of Nursing, which is subject to similar statutory restrictions, has labeled “unprofessional conduct” such misdemeanors as possession of an unlicensed firearm, criminal mischief, obstruction of a highway, and criminal trespass, none of which are a crime relating to the practice of nursing or classified as an offense of moral turpitude. I have also encountered cases where the Board was reluctant to license an individual or wished to impose discipline based on conduct which is not even criminal, such as a client’s former employment as a stripper or a person’s private conversations on an internet social networking site. Furthermore, I have seen multiple situations where a client is being pursued due to what is essentially an employment dispute, such as lying on an initial application, an area over which the Board involved likely has no jurisdiction.

In conclusion, licensing Boards frequently utilize this method as a means to expand their jurisdiction beyond their enabling statutes. “Unprofessional conduct” is used as a pretext to regulate licensees for activities that do not involve the licensed occupations at all. If you are facing an investigation or disciplinary matter before a state agency and feel the basis of their action has no relationship or bearing on your license or practice, you very well may be right and would be wise to contact an attorney familiar with the respective Board’s statutes and disciplinary process.

What Every LPC-Intern Should Know: TSBEPC and What is Considered to be an Independent Practice

Louis Leichter — Wed, 06 Oct 2010 12:38:37 -0600

My law firm has recently represented several LPC-Supervisors and LPC-Interns before the Texas State Board of Examiners of Professional Counselors (TSBEPC) in reference to avoiding or defending against charges that a LPC-Intern is operating an independent counseling practice while earning the 3,000 supervised experience hours necessary for full licensure. The recurrent problem has been that outside a handful of Board Rules, TSBEPC has provided little to no public guidance on how they interpret and apply the bar on LPC-Intern’s operating an independent practice. As a consequence, both LPC-Interns and their LPC-Supervisors have unwittingly become the target of a Board investigation and subsequent disciplinary action.

Board Rule 681.52, located in Title 22 of the Texas Administrative Code, clearly enshrines the fact that “An LPC Intern may not practice within the Intern’s own private independent practice of professional counseling.” The same Rule goes on to specify that an LPC-Intern cannot directly receive payments by a client, client records are not the property of the intern, an LPC-Supervisor cannot be the employee of an Intern, and finally, all billing documents and advertisements must reflect that the LPC-Intern is an intern pursuant to a temporary license and list the intern’s LPC-Supervisor. Outside the above, no further guidance is given to LPC’s as to how to set up a proper LPC-Intern – LPC-Supervisor relationship or what constitutes an independent private practice.

This would be fine except the LPC Board has a particularly idiosyncratic interpretation of this Rule and this includes enforcing requirements that are nowhere apparent on the face of the applicable rules. For example, LPC-Interns and Supervisors need to be aware that according to TSBEPC, LPC-Interns are not allowed to rent- out of their own pocket- office space where they will see clients even if it is in a supervised capacity. In other words, LPC-Interns are expected to see clients in an office space that is provided/rented by their Supervisor or which is rent-free- such as unpaid work at a local mental health center for the disadvantaged.

LPC-Interns are also not supposed to have a Tax ID number even if such a number is retained solely for tax purposes and they are otherwise in conformance with TSBEPC requirements, such as the rule barring the receipt of payments directly from clients. Likewise, the Board appears to believe that LPC-Interns cannot file reimbursement claims with an insurer even if it is a joint filing with their Supervisor and the insurance provider requires that, as the person who provided the counseling services, the Intern must be including in the claim. TSBEPC also maintains that LPC-Intern’s advertising on the Psychology Today databank must include “LPC-Intern” in their profile even though this is usually difficult to accommodate due to the way the website is arranged. Shortened versions like “LPC-I” or “LPC-Int” are not in compliance.

None of the above requirements are necessarily objectionable or unreasonable in and of themselves; the problem is that no one is aware of them unless they have already been actively investigated or disciplined by TSBEPC or know someone who has. The LPC Board needs to either adopt supplemental rules or publically issue guidelines placing LPC-Interns and Supervisors on notice of these interpretations. Otherwise, TSBEPC is simply creating an unnecessary backlog of complaints and licensees are being subjected to investigation and possible discipline based on unpublished mandates.

More importantly, any attempt by TSBEPC to discipline licensees due to such unwritten requirements is likely illegal and arbitrary and capricious under basic principles of administrative law. Unfortunately, an LPC has no easy means to force the Board to apply its rules as they presently exist until they are already far entangled in the complaint and disciplinary process. A subjection of these official but unwritten requirements to the rulemaking process would also allow the Board and stakeholders to come together and find whether such rules are even realistic or practical. As an attorney involved in several of these cases, I have been informed that the Board’s understanding, particularly as to the renting of office space by LPC-Interns, is in direct conflict with what has been the widespread practice among Supervisor and their Interns for many years.

Regardless, it is the LPC-Interns who typically have the most to lose. I have seen the Board prevent an Intern from earning their full license or even disallow thousands of supervised experience hours due to a perceived technical violation of the above unwritten interpretations of Board rules. Anyone who is being pursued by the Board for these type of complaints or who is merely unsure whether or not their practice is set up correctly would be wise to contact an attorney familiar with the LPC Board’s disciplinary practices. Otherwise, a licensee could find themselves involved in a disciplinary matter which could have easily been avoided.

TMB Licensure Committee Hears Record Number of Applicants at August Board Meeting

Louis Leichter — Wed, 01 Sep 2010 21:41:46 -0600

The Licensure Committee of the Texas Medical Board (TMB) met at its last scheduled meeting on Thursday August 26, 2010. The Committee heard approximately 39 applicants who were on the agenda in conjunction with their applications for a full Texas medical license / physician registration or a physician-in-training permit (PIT). Due to the size of the agenda the Licensure Committee divided into two sub panels. The meeting began at 8:30 am as opposed to the customary 10:30 am or 12:00 noon start times of previous meetings. A Texas Medical Board attorney was assigned to each sub-panel to serve as advisory counsel to each sub-committee.

The typical issues involved in Texas Medical Board licensure cases were heard which included:

Issues relating to the provision of false or misleading information on the application concerning academic probation or criminal history;
Eligibility issues relating to criminal history and good professional character;
Discipline by peers including residency programs and/or medical schools;
Clinical competency concerns due to malpractice history;
Inability to practice due to intemperate use of drugs or alcohol or a history of substance abuse / chemical dependency relapse;
Inability to safely practice medicine due to a physical or medical condition;
Time out of the clinical practice of medicine;
A combination of any of the above.

About one-half of the applicants were represented by attorneys. Our firm’s physician licensing lawyers represented four applicants and all were granted their full Texas medical license or physician in training permit. In general the applicants fared better than the last meeting, but there were a number of denials and determinations of ineligibility. A review of these determinations and the minutes associated with each allow for the conclusion that it is necessary to pre-file rebuttal material with Staff well in advance of the meeting and for each doctor to have a good plan of attack for their few moments in the spotlight.

If you are a physician and are faced with the reality of going before the Texas Medical Board in conjunction with your application for a Texas medical license representation from an experienced Texas physician licensing attorney may help make the difference between the granting of your license and a license denial. Please feel free to call the Leichter Law Firm for a free consultation regarding your physician licensing case with the Texas Medical Board -512 495-9995.