Texas Medical Licensing Law Blog

Important Update for Texas Nurses on a Board Order: Texas Board of Nursing Starts Screening for EtG and EtS

Louis Leichter — Wed, 15 May 2013 16:39:36 -0600

During the last month my firm has experienced an influx of calls from nurses who have tested positive for alcohol while on an Order with the Texas Board of Nursing. The consequences of testing positive for a prohibited substance, including alcohol, while under a Board Order can be quite severe. This includes an automatic temporary suspension of the nurse's license and a high likelihood that this suspension will be continued until the nurse has subsequently obtained twelve consecutive months of sobriety verified by additional random drug and alcohol testing. Moreover, from a legal perspective it is very difficult to mount an effective defense in the face of a positive test and avoid these harsh consequences.

The reason for the sudden increase in nurses testing positive for alcohol appears to be the Texas Board of Nursing's new decision to include testing for ethyl glucuronide (EtS) and ethly sulfate (EtS) in their screening panel. Previously, the screening company used by the Texas Board of Nursing only tested for ethanol, however, the Board recently signed a contract with a new vendor that includes both EtG and EtS screening in their panel. This is crucial as the sensitivity and detection window of EtG and EtS testing is much higher than a traditional urine ethanol screen.

Ethanol, or alcohol, is the primary intoxicating ingredient in alcoholic beverages. Accordingly, a person who has ingested alcohol will only test positive for ethanol as long as the alcohol remains in their system. Once it has been fully metabolized by the liver, the person will no longer test positive. Given this is a relatively quick process ethanol testing will generally only provide a 10-12 hour window in which to detect if a person has ingested alcohol. If the person has only had one or two drinks, the detection window is even shorter.

In contrast, EtG and EtS testing can detect even light alcohol use over a period of several days. Additionally, these tests, and the low cut-off levels used by the Board, are highly sensitive to even a small amount of alcohol ingetsion. It is also well documented that inadvertent, casual exposure to alcohol in the environment can cause a person to test positive. Sources of incidental exposure to alcohol that can cause positive results include:

hand sanitizers containing alcohol;
foods containing trace amounts of alcohol;
non-alcoholic beers such as O'Doul's;
colognes and perfumes;
sustained exposure to gasoline and other chemical agents containing alcohol;
mouthwashes containing alcohol such as Listerine and Scope;
over-the-counter medications containing alcohol;
certain natural and herbal medications.

I am unaware whether the Board has provided nurses testing pursuant to a Board Order with information concerning this new testing panel. Ideally, nurses should also be provided with a list of different substances which can inadvertently cause a positive result. For many years, nurses in the Texas Peer Assistance Program for Nurses been given this information prior to their enrollment in testing and hopefully the Board is doing or will soon be doing the same. This is also the standard of practice for the Texas Physician Health Program and the Professional Recovery Network.

Texas nurses testing through the Board need to be made aware that they are now being tested for EtG and EtS and receive education on how to avoid an inadvertent positive. Whether a nurse who has already tested positive can mount a legal defense is largely dependent on their test level and whether they were positive for both EtG and EtS. A low positive can be an indication of only inadvertent exposure to alcohol while a test that is positive for EtG but negative for EtS strongly suggests either a contaminated sample or the spontaneous production of ethyl glucuronide in the specimen container. In District Court actions, my firm has previously successfully challenged on these bases two automatic suspension orders entered against physicians by the Texas Medical Board.

If you have tested positive for EtG or EtS, it is prudent to contact an attorney with Board experience immediately to explore your legal options. The Board is likely to move quickly to temporarily suspend your license and time is of the essence. Even if a suspension is inevitable, oftentimes an attorney can be useful in negotiating a subsequent Order with the Board that minimizes the amount of time the nurse will be unable to practice.

The Texas Intractable Pain Treatment Act And Chronic Pain

Louis Leichter — Mon, 11 Mar 2013 15:40:25 -0600

Given the current aggressive regulatory climate surrounding the treatment of chronic pain, it is worthwhile to look back and understand how the applicable law developed prior to the Legislature's empowerment of the Texas Medical Board to oversee registered pain clinics in 2011. This prior law, including the Intractable Pain Treatment Act, was designed to safeguard physicians who treat chronic pain while remaining within the standard of care. It has been my experience as an attorney representing numerous physicians, mid-level providers, and pharmacies, that this prior law has largely been either forgotten or eroded to the point it no longer provides real protection to medical professionals.

The Intractable Pain Treatment Act (IPTA), separate from the Medical Practice Act, is codified at Chapter 107, Texas Occupation Code, and was intended to provide physicians with a safe harbor in prescribing controlled substances and dangerous drugs to treat pain. In this post we provide a background of this Act and its current relevance, or lack thereof, in the practice of medicine.

The Intractable Pain Treatment Act was passed in 1989 to deal with the problem that physicians were being disciplined by the Texas Medical Board because the Board refused to distinguish habitual users of narcotic drugs from patients with genuine medical needs. Prior to the passage of the IPTA, the Medical Practice Act allowed the Texas Medical Board, known at that time as the Texas Board of Medical Examiners, to discipline physicians for prescribing controlled substances or dangerous drugs to a person "known to be habitual users of narcotic drugs, controlled substances, or dangerous drugs or to a person who the physician should have known was a habitual user of the drugs." This phrasing of the Medical Practice Act made patients taking opioids to alleviate genuine suffering "habitual users." Accordingly, physicians prescribing pain medication to cancer patients were subject to disciplinary action by the Board. Such was the effect that physicians refused to prescribe these therapeutic drugs and hospitals refused to let physicians prescribe them on the premises.

The Intractable Pain Act of 1989 sought to rectify this basic problem by protecting physicians from Texas Medical Board discipline if they prescribed the medication for "intractable pain." Intractable pain is defined as pain the cause of which cannot be removed, treated, or cured. The IPTA also prohibited hospitals from restricting credentialed physicians from prescribing pain medications for intractable pain.

In 1993 the Legislature modified the Medical Practice Act to prohibit doctors from prescribing to a person who was a known "abuser" of controlled medications. In 1996 the Legislature amended the Intractable Pain Act to allow physicians to prescribe controlled medication even to such abusers as long as the medication was strictly for the management of their diagnosed pain which the physician had a duty to monitor. The physician was also required to document the understanding between the doctor and the patient and to consult with an addiction specialist as appropriate. These restrictions were only required when dealing with patients who were drug abusers or had a history of drug abuse.

In its final form the IPTA was meant to provide a safe harbor for Texas doctors who treated long-term pain provided the controlled medications they prescribed were actually for an underlying pain condition. This safe harbor protects physicians who treat known drug abusers for intractable pain provided they monitor the patient and consult with the appropriate mental health expert. Yet the protections of the safe harbor are slight; by the Act's own terms, the Texas Medical Board can still discipline physicians if they prescribe non-therapeutically or prescribe in a manner inconsistent with the public welfare.

The safe harbor provision provided by the Intractable Pain Treatment Act has been recognized, albeit modified, by the Board in its pain management rules codified at Chapter 170, Title 22 Texas Administrative Code. The rules recognize that pain treatment is a vital and integral part of the practice of medicine and that doctors should be able to treat pain using sound clinical judgment without the fear of disciplinary action from the Texas Medical Board. Yet, the rules go on to list several actions that should be involved in the treatment of chronic pain including the formulation of a pain management contract requiring random drug screening.

From the rules it is apparent that whereas the Intractable Pain Treatment Act required heightened monitoring and more rigorous documentation merely for known drug abusers, the Board's most recent rules make that standard applicable to all long-term pain management patients. While the rules do call themselves "guidelines" it should be noted that the Texas Medical Board will allow deviation from the guidelines only if the physician's rational for treatment indicates sound clinical judgment documented in the medical records.

To conclude, the Intractable Pain Treatment Act has largely been subsumed by the Board's pain management rules codified at Title 22, Chapter 170, Texas Administrative Code. Whereas the IPTA was enacted to provide safe harbor to physicians prescribing long-term pain medications, the Board's rules make prescribing harder by requiring extensive documentation from physicians. Whereas the IPTA required monitoring and more rigorous documentation only for known drug users, the Board rules holds all patients to that standard. All that is left from the Intractable Treatment Act is the prohibition against hospitals from restricting the ability of a credentialed physician to prescribe and treat intractable pain.

The rule's emphasis on documentation is important as in my experience most of the chronic pain cases pursued by the Texas Medical Board in the last few years rely heavily on a strongly biased reading of the physician's medical records. When the records are sent out to the Board's confidential expert panel for examination prior to an informal conference, the reviewers invariably apply an unworkable standard of documentation and then conclude, without further evidence, that the absence of certain items means the physician is engaged in non-therapeutic prescribing of medications. Through this process what is at worst a documentation issue is transformed by the Board into a physician who practices outside the standard of care and may even be operating a "pill mill."

The story of the IPTA is indicative of the back and forth history of the treatment of chronic pain in Texas. It demonstrates how the regulatory climate has consistently shifted back and forth between those in favor of broadening access to chronic pain treatment and those who view this ready availability as too broad and prone to abuse by both physicians and patients. Hopefully, the current campaign being waged by the Texas Medical Board, Drug Enforcement Administration, Texas State Board of Pharmacy and local task force will soon face substantial popular or legislative pushback. As it stands, I feel substantial damage is being done to the availability of chronic pain treatment, particularly for patients who are uninsured and not covered by Medicare, as legitimate physicians are pressured to leave this specialty by an out-of-control Texas Medical Board and Drug Enforcement Administration.

Texas Medical Board Schedules Wave of Temporary Suspension Hearings Targeting Pain Management Physicians and Physician Assistants

Louis Leichter — Wed, 28 Nov 2012 17:25:07 -0600

As we reported earlier this month, the Drug Enforcement Administration (DEA) along with several state agencies, including the Texas Medical Board (TMB) and Texas State Board of Pharmacy (TSBP), has been increasingly active in Houston over the past few months. More than ever before, the joint state and federal taskforce has taken a scorched earth approach to the battle against alleged “pill mills.” The taskforce has generally shown up at clinics and pharmacies unannounced, seizing records and equipment, and demanding surrender of the practitioner’s DEA prescribing registration. The practitioners targeted by this task force and these methods are not just notorious “pill mill” doctors and pharmacies, but also a large number of legitimate pain management physicians, physician assistants, nurse practitioners, pharmacists and pharmacies that just happen to be operating at ground zero of the war on prescription drugs. The net has been cast wide, and many practitioners are finding themselves in need of competent and experienced legal representation.

A Surge in Temporary Suspensions on the Horizon:

Many of the physicians or physician assistants that have any present or past association with these raided clinics are finding themselves the target of Temporary Suspension proceedings by the Texas Medical Board, based solely on their association with an alleged “pill mill”. We have received numerous calls over the last few weeks from physicians and physician assistants who have received notice of Temporary Suspension proceedings and are seeking the services of professional license defense lawyers. The Texas Secretary of State’s website currently lists eight Temporary Suspension hearings to be heard by the Medical Board just next week.

Temporary Suspension proceedings are initiated when Medical Board staff believes they have evidence sufficient to prove that the licensee’s continued practice constitutes a continuing threat to the public welfare (See Occupations Code, Section 164.059(b)). If after a Temporary Suspension hearing, the Disciplinary Panel, made up of Medical Board members, decides that Medical Board staff has indeed presented evidence sufficient to prove that the licensee constitutes a continuing threat, then that licensee’s license is suspended that very day. As such, there is a great deal at stake for any licensee that finds themselves in that position, and the benefit of hiring an attorney well-versed in medical license defense should be clear.

The Board’s Temporary Suspension remedy has traditionally been used sparingly, due to its severe impact on a licensee’s career, and due to the sizeable burden that Medical Board staff shoulders in proving that a licensee is a continuing threat to public welfare. The wave of Temporary Suspensions that the Board currently has scheduled represents a significant departure from that thinking. The commonalities in these cases are that the practitioners have some connection, either present or past, with a pain management clinic that has been targeted by the DEA taskforce. The licensee may be a physician who was serving as a part-time supervising physician or medical director. The licensee may be a physician assistant that worked in the clinic on a contract basis. Whatever the association, Medical Board staff’s theory of prosecution equates any association with an alleged “pill mill” to a continuing threat to the public, and often the evidence that they are using to show a continuing threat is equally as thin. However, if a licensee is not equipped to challenge Medical Board staff’s evidence and legal theories, it is likely that the Medical Board panel will find with Board staff.

What should you do if you receive notice of a Temporary Suspension hearing?

You should hire an attorney immediately upon being noticed of a Temporary Suspension hearing in front of the Texas Medical Board for several reasons.

First, you are most likely not equipped to represent yourself in a contested hearing in front of the Texas Medical Board. The disciplinary process at the Board is not intuitive and Temporary Suspension proceedings are particularly quirky. It is to your benefit to hire someone that is capable of putting on a cohesive defense that will include preparing and presenting documentary evidence, putting on witness testimony, cross-examining Board staff’s witnesses, and zealously advocating on your behalf.

Second, the Medical Board is only required to give you 10-days notice by Board rule (Texas Administrative Code, Title 22, Chapter 187.60(2)). This is a very limited amount of time to put together a strong and comprehensive defense. The best way to combat this challenge is to hire a lawyer that is capable of preparing a defense under these conditions, and to hire them immediately, so as to not waste time.

Third and finally, you should seek legal counsel and potentially hire an attorney because there is a great deal at stake with a Temporary Suspension hearing. It is nothing to be taken lightly. Your ability to practice under your license in the short term is in jeopardy, as is your future practice. A temporary suspension is on your public record forever, and its existence will definitely require explanation, and could potentially cost you opportunities in the future.

Conclusion:

If you receive a visit from the DEA taskforce or you are given notice of a Temporary Suspension hearing from the Texas Medical Board or Texas State Board of Pharmacy, please do not hesitate to contact the professional medical license defense attorneys at the Leichter Law Firm. You need the guidance of an attorney that is experienced in medical licensing law, including cases dealing with allegations of non-therapeutic prescribing and prescription drug diversion, as well as the potential criminal ramifications. The Leichter Law Firm’s attorneys have represented clients in similar circumstances and have gained positive results for our clients. Give us a call at (512) 495-9995 or submit an inquiry through our website at http://www.leichterlaw.com/ for a free consultation.

DEA Steps Up Raids of Pain Management Physicians and Pharmacies in Houston

Louis Leichter — Mon, 12 Nov 2012 17:29:15 -0600

Over the past month, the Federal Drug Enforcement Administration has drastically increased their activity in the Houston area. This includes a dramatic upswing in the number of unannounced raids targeting pain management physicians, physician assistants, nurse practitioner, and pharmacies. At this juncture, most every pain management clinic and pharmacy in the Houston should be aware of the coordinated campaign being conducted against pain management medicine by the DEA, local law enforcement, the Texas Medical Board, and the Texas State Board of Pharmacy. For background information please refer to the numerous posts concerning this topic on this blog.

To date, the government's strategy has largely focused on identifying the largest prescribers and dispensers of the most commonly prescribed medications for pain management— hydrocodone and some type of muscle relaxer, usually Soma— and then targeting these facilities as well as the associated physicians and pharmacists. Oftentimes, the physician, mid-level practitioner, or pharmacist will only first learn they have been targeted when the DEA and associated agencies suddenly appear at their place of business brandishing badges and search warrants. This will be closely followed by a temporary suspension hearing before the Texas Medical Board or Texas State Board of Pharmacy intended to immediately suspend the practitioner's license.

Based on the number of phone calls to my law firm in the last month, it is clear the government's tactics have shifted away from selectively targeting the highest prescribers and dispensers of pain management medications. The DEA is now engaging in a much wider, almost indiscriminate, operation of raiding pain management clinics and the pharmacies that fill their scripts. Many of these raids appear focused merely on seizing records and equipment.

Traditionally, virtually every search and seizure has included a demand by the DEA that the physician or pharmacy owner immediately surrender their controlled substances registration. This is accompanied by vague threats of criminal and/or administrative prosecution if the licensee declines. During the most recent set of raids, the DEA has not consistently requested the surrender of the physician or pharmacy owner's registration. In some instances, the DEA has even specifically told the client they are free to reopen.

This emerging pattern of practice likely indicates the DEA and local law enforcement are amassing documents and information to later be used for mass indictments in federal and state criminal courts. The Houston District Attorney's office has recently suffered several setbacks in their prosecution of pain management / non-therapeutic prescribing cases. These loses probably heralded the current shift of tactics and more careful preparation of cases prior to filing. The DEA may also be looking to pursue more widespread administrative revocation of perceived wrong-doers' controlled substances registrations.

Regardless of the meaning or implications of this change, any physician or pharmacist who is raided by the DEA should immediately contact an attorney with experience representing clients accused of non-therapeutic prescribing/dispensing in both the criminal and administrative arenas. These cases are pursued zealously by the applicable agencies and usually involve a multi-front assault criminally through state or federal court and administratively through the person's controlled substances registration and applicable state licensing board.

Moreover, a physician, pharmacist, or mid-level practitioner should not surrender their controlled substances registration prior to consulting with an attorney. The DEA's raids are designed to intimidate and many practitioners make the mistake of buckling to the government's threats and surrender their certificates. This is a reflexive request on the part of the DEA and does not actually mean the person has done anything wrong or that the government has a good case. Additionally, even though my firm has been very successful in obtaining the reissuance of clients' surrendered controlled substances registrations, the reinstatement process is onerous and time-consuming and the intervening damage to the client's medical practice or pharmacy can be devastating.

Any physician or pharmacy who has been raided by the DEA should immediately contact an attorney, preferably during the actual raid. You have the right to speak to attorney prior to providing a statement or making any decision concerning your certificate. The stakes are very high in these cases and a successful outcome is often dependent on securing competent counsel at the earliest possible stage.

New Law Restricts Texas Foreign Physicians' Practice To Medically Underserved Areas

Louis Leichter — Wed, 07 Nov 2012 15:58:58 -0600

As the Texas physician shortage continues, more and more physicians from foreign countries are coming to the state to meet the shortfall. This blog post describes how the Texas Medical Board and legislature have limited the geographic locations in which foreign physicians can practice. This post also discusses the constitutional implications of the law given that it allows the Board to discriminate against foreign physicians.

In 2011, the Texas legislature amended the Medical Practice Act to require that foreign physicians who were neither US citizens nor permanent residents (green card holders) work in a Medically Underserved Area for three years, or promise to so work, in order to qualify for a Texas medical license. The law does not affect current license-holders, physicians who have practiced at least one year prior to September 1, 2012 on a Texas Physician-in-Training permit, or physicians who submitted their applications for full licensure prior to September 1, 2012. Other foreign physicians not subject to one of the foregoing exceptions are subject to the new law.

The main effect of this law is to force physicians in the United States on an H-1B work visa to practice for three years in a Medically Underserved Area. Medically Underserved Areas (MUAs) are designated by the United States Department of Health and Human Services and administered in Texas by the Texas Department of State Health Services. MUAs are areas which suffer from a significant shortage of personal health services and are determined according to a formula weighing a geographic location's poverty and infant mortality rates, the percentage of elderly population, and the ratio of primary care physicians. Many rural counties in Texas have been designated as a MUA as have certain disadvantaged areas in large cities such as San Antonio.

The law is primarily designed to impose the same rules on a foreign physician coming to Texas under a H-1B visa as those applicable to an individual coming to Texas pursuant to a J-1 visa. Foreign physicians coming to the United States to do their residencies usually enter on either a J-1 or an H-1B work visa. Under the federal laws, the J-1 visa allows a physician to do his residency, but at the end of his stipulated time he must return to his country of citizenship and stay there for two years. He is not eligible to seek green card status. However, if the physician elects to work in a MUA, they can receive a waiver and have their status adjusted to H-1B status without having to leave the US and face the 2-year residence abroad requirement. The physician is also then allowed to apply for a green card.

Under federal law, a physician who initially enters on an H-1B does not have to face these burdens. They are eligible to petition for a green card without a break in their stay and employment in the United States. Nor does such a physician have to obtain a waiver by working in a MUA.

The new Texas law forces a H-1B physician to work in a MUA just as her J-1 counterpart would by making practicing in such an area a mandatory requirement for licensure. It is certainly interesting that the Texas Medical Board is now effectively pursuing immigration policy and determining where a foreign physician can geographically work. There is no claim being made that the H-1B physicians are inferior and so demand more scrutiny than American citizens. In fact a contrary inference may be drawn since it is mandated that the H-1B physician provide care for some of the most medically vulnerable populations in Texas. Moreover, most H-1B foreign physicians will have completed a residency program in Texas. Thus, the Texas law is not in place to protect the public from foreign physicians. The law is merely a way of ensuring that H-1B physicians take jobs in areas no American physician wants to go to—the MUA.

It is also likely possible this new law would have an overall negative impact on the number of new physicians coming to Texas to practice by discouraging the immigration of foreign doctors. If the only way for a foreign physician to practice in Texas is to do so in a MUA (an area which by definition has, for whatever reason, not proven attractive to Texas physicians), they may very likely simply go to another state following their residency in Texas. In effect, Texas health resources spent training new physicians will ultimately go to benefit other states.

It is also important to keep in mind that a foreign physician in the country on a H-1B visa cannot open their own practice, even in a MUA. They can only work for a sponsoring employer. Accordingly, foreign physicians are being forced to find a pre-existing physician practice in an area which is designated a MUA precisely because there is already severe shortage of physicians. It is unclear how areas which are already struggling to economically support a basic health care structure are going to integrate an influx of foreign physicians.

Besides these issues of impact, the question also arises over whether Texas can, in fact, legally discriminate between physicians based solely on their citizenship status. At the time this amendment to the Medical Practice Act was passed, the federal courts has already seemed to indicate the answer is yes. The Fifth Circuit Court of Appeals, the federal appellate court which sets precedent for federal courts in Texas, held in 2005 that states could discriminate against H-1B visa holders as much as they pleased provided there was some "rational basis" for the discrimination. See LeClerc v. Webb, 419 F.3d 405, 422 (5th Cir. 2005). Rational basis review is a very weak standard and only requires that the law in question is rationally related to a legitimate government interest. Very few statutes are ever struck down for lacking a rational basis. Thus according to the Fifth Circuit, there is no violation of the Constitution's Equal Protection clause by treating H-1B holders differently and separately from citizens.

However, in January of 2012 the Second Circuit Court of Appeals in New York held the precise opposite. That Court held that states could only discriminate against H-1Bs if there was a compelling reason. Dandamudi v. Tisch, 686 F.3d 66, 79 (2nd Cir. 2012). This standard, known as strict scrutiny, is very hard for a state to meet. All but two statutes have been ruled unconstitutional when evaluated under the strict scrutiny standard. Accordingly, Dandamudi, held that states cannot, outside of a very compelling reason, discriminate against foreigners based on their citizenship status, just as states could not discriminate against people based on race.

Though the Fifth Circuit's LeClerc decision is still valid law in Texas federal courts, the challenge posed by Dandamudi is, nevertheless, interesting. Importantly, neither of these cases is binding on the Texas state courts which will be able to decide for themselves which standard, rational basis, or strict scrutiny, they would apply were this law to be challenged.

Regardless, a foreign physician on a work visa in Texas must now practice in a restricted set of geographic areas, whereas an citizen physician faces no such impediment. This difference in outcomes is not based on any quality of care concerns that a foreign doctor may raise, but merely on the foreigner's disadvantaged immigration status. It is unclear as to what sort of impact the new law will have on Texas health care. My best guess is that far fewer foreign physicians will be staying in Texas even if this is the state where they completed their residency. In my opinion, this is not the best strategy when the state is already facing a severe physician shortage, particularly in primary care.

Texas Medical Licensure for Physician Graduates of Overseas Medical Schools

Louis Leichter — Thu, 01 Nov 2012 15:48:07 -0600

As tuition at US medical schools continues to increase at an astronomical rate, more and more aspiring doctors are looking abroad, particularly to the Caribbean, to pursue their medical degrees. Moreover, due to the shortage of physicians in the United States the country needs more physicians from other countries. Both sets of medical graduates of foreign medical schools face challenges when they seek licensure in the United States. This post particularly describes the additional burdens faced by graduates of foreign medical schools as they seek licensure in Texas.

The Texas Medical Board regulates the practice of medicine in the State of Texas. This includes determining licensure requirements for medical school graduates. Part of this determination requires verifying that the graduate met certain minimum requirements during the course of their medical education. While such a verification for graduates of United States medical schools are relatively easy—the Board relies on the Liaison Committee on Medical Education and American Osteopathic Association Bureau of Professional Education to approve those schools—the verification of foreign medical schools is a much more cumbersome process. It should be noted that the process described here is independent of citizenship status—i.e. the vetting process for foreign medical schools is the same regardless of whether the foreign medical school graduate is a United States citizen or a citizen of another country.

The verification process first begins with a degree equivalency determination. The foreign medical graduate (FMG) must get their credentials evaluated by the Educational Commission for Foreign Medical Graduates (ECFMG), a non-profit organization that deals with determining the equivalency of foreign medical degrees. ECFMG will weigh the foreign transcript and grades and convert the coursework into an equivalent for a US school. If ECFMG determines that the degree received is equivalent to a US Medical degree then it will award the FMG a certificate saying so. ECFMG may find that a foreign medical degree is equivalent to a US medical degree even if that degree is a baccalaureate one. Obtaining a certificate from ECFMG is also required before the foreign medical school graduate may sit for the United States Medical Licensing Examination (USMLE), which is the standard medical licensing examination in the United States.

However, a certificate from the ECFMG is only a starting point for the foreign medical graduate. The Texas Medical Board further requires that the foreign medical graduate show that the school itself rather than just the coursework is substantially equivalent to a Texas medical school. Such a determination requires documentation of:

a Foreign Educational Credentials Evaluation from the Office of International Education Services of the American Association of Collegiate Registrars and Admissions Officers (AACRAO) or an International Credential Evaluation from the Foreign Credential Service of America (FCSA), or another similar entity as approved by the board;
a board questionnaire, to be completed by the medical school and returned directly to the board;
a copy of the medical school's catalog;
verification from the country's educational agency confirming the validity of school and licensure of applicant;
proof of written agreements between the medical school and all hospitals that are not located in the same country as the medical school where medical education was obtained;
proof that the faculty members of the medical school had written contracts with the school if they taught a course outside the country where the medical school was located;
proof that the medical education courses taught in the United States complied with the higher education laws of the state in which the courses were taught;
proof that the faculty members of the medical school who taught courses in the United States were on the faculty of the program of graduate medical education when the courses were taught; and
proof that all education completed in the United States or Canada was while the applicant was enrolled as a visiting student as evidenced by a letter of verification from the U.S. or Canadian medical school.

However, in spite of meeting these documentary requirements a foreign medical graduate’s medical school may still be denied recognition by Texas if the medical board of another state has denied recognition to that medical school. At this point the foreign medical graduate’s only recourse is to go through a degree equivalency process before the Texas Higher Education Coordinating Board (THECB). To determine the validity of the foreign degree THECB looks at whether the medical school was accredited by an agency in the foreign jurisdiction, and whether the foreign agency's evaluation procedures were as rigorous as THECB's. THECB may also require a site visit by its staff. Accordingly, the THECB process could be very expensive for the foreign medical graduate and could exceed $5,000.

There are certain instances where the foreign medical graduate does not have to go through the substantially equivalent determination. Where the Board has previously approved a foreign medical school for a prior graduate, it usually does not require the foreign medical graduate to submit proof of substantial equivalence. Additionally, a foreign medical graduate who has acquired a certificate from a specialty board that is a member of the American Board of Medical Specialties or the Bureau of Osteopathic Specialists, is also usually exempt from the substantially equivalent vetting process.

As can be seen from the foregoing, obtaining a Texas license as a graduate of a foreign medical school can be very challenging because of the substantially equivalent vetting process. It is helpful to contact an attorney experience in dealing with the Texas Medical Board and its licensing process. Here at the Leichter Law Firm we have handled hundreds of physician licensure cases and would be able to provide you assistance navigating the often bewildering process of foreign medical school equivalency and Texas licensure.

New General Counsel for Texas State Board of Dental Examiners

Louis Leichter — Wed, 26 Sep 2012 16:05:26 -0600

Following the movement of its prior General Counsel to the Office of the Inspector General, the Texas State Board of Dental Examiners recently hired Julie Hildebrand to serve as the Board's new head attorney. For the past several years Ms. Hildebrand has served as the lead litigation attorney for the Texas State Board of Pharmacy. As such, Ms. Hildebrand was responsible for trying the bulk of the Pharmacy Board's case load at the State Office of Administrative Hearings (SOAH).

Ms. Hildebrand's predecessor, Joy Sparks, started as General Counsel during a transitional time at the Board as it worked to streamline its investigative and disciplinary process and become more aggressive towards dentists suspected of violating the Dental Practice Act. Ms. Sparks was instrumental in this process, applying many of the same basic procedures used by the Texas Board of Nursing, a much larger board were she was previously employed as Assistant General Counsel. This included multiple changes to the Dental Practice Act designed to modernize it and bring it more in line with licensing laws applicable to other Texas health care professionals.

It is yet to be seen what impact Ms. Hildebrand will have on this trend but I would assume the Dental Board will continue the policies and efficiency building initiatives conceived under Ms. Sparks. Ms. Hildebrand's prior employer, the Texas State Board of Pharmacy, is notorious for assuming unreasonable disciplinary stances that typically lead to otherwise unnecessary litigation. That being said, the Leichter Law Firm's experience with Ms. Hildebrand is that although she will enforce the Board's position whatever it may be, she is personally reasonable and willing to consider all aspects of a case. I do not expect the Texas Dental Board to ease off of its more proactive posture towards investigations and disciplinary action against Texas dentists.

Texas Physician Health Program - When It Is Not Appropriate

Louis Leichter — Wed, 15 Aug 2012 13:21:55 -0600

In 2010, the Texas Legislature created the Texas Physician Health Program (PHP), effectively shifting the oversight of licensed Texas physicians with substance abuse disorders and mental illness from the Texas Medical Board to a program uniquely tailored to monitor those issues. Responsible in part for the success of this idea is the sentiment that physicians generally do not like dealing with the Medical Board, and are not keen on self-reporting substance abuse issues to the Medical Board or being candid about mental health problems. The PHP, while not entirely independent from the Medical Board (PHP is administratively linked to the TMB), was intended to provide a more attractive option for those physicians who needed the oversight and the help that PHP would provide. In the 2+ years since its creation, the PHP has largely been successful, and certainly is still preferable to the Medical Board’s investigative and disciplinary process in many instances. However, there are certain types of “substance-related” cases in which a referral to the PHP is not appropriate, and a physician would be better served to hire an experienced professional license defense attorney and take the case to the Medical Board, seeking dismissal. Simply put, a one-time arrest and conviction for DWI or Public Intoxication does not justify a long-term PHP contract aimed at facilitating recovery.

The PHP is not typically appropriate in instances where the physician has had a one-time substance-related arrest, but no substance abuse diagnosis. However, we frequently encounter physicians who have been arrested for one-time instances of DWI or public intoxication and are subsequently offered participation in the PHP in lieu of Medical Board action. Oftentimes, the offer of PHP contract will have been given before the DWI case is even criminally adjudicated. For a physician that does not seek the proper legal guidance, that one-time DWI arrest will result in a 5-year PHP contract, where the physician is subjected to terms that likely include substance abuse treatment, Alcoholics Anonymous attendance, drug screening, and possibly practice restrictions. While a confidential PHP contract that offers that level of structure is probably appropriate for a physician with a diagnosed substance use disorder, it is not appropriate for the physician who made a highly regrettable, one-time decision to drink and drive. Additionally, it is very difficult for anyone to stay compliant with a 5-year PHP contract when there is no actual substance abuse disorder- the terms of the order start to look very arbitrary. Moreover, there will be lifelong consequences with credentialing and applications for privileges.

The alternative to a PHP contract is the perceived threat that the physician’s case will be forwarded to the Medical Board for investigation and possible disciplinary action. Contrary to common misperceptions, that is often the preferable scenario in this instance. The Medical Board does not have the power to discipline a physician for a one-time arrest and conviction of DWI, and as long as that DWI does not lead to evidence that the physician may have a substance abuse problem, the Medical Board must dismiss the case (Tex. Occ. Code § 164.051(a)(2)). The physician will probably be investigated and invited to participate in an Informal Settlement Conference with the TMB, but an experienced administrative law attorney should be able to guide them through the process without receipt of any discipline. The professional license defense attorneys of the Leichter Law Firm have been very successful in getting these cases dismissed.

If you are a physician, physician assistant, or other licensee of the Texas Medical Board, and you have been offered a PHP participation contract in response to a one-time substance-related arrest, do not hesitate to contact the experienced administrative law attorneys of the Leichter Law Firm. Even if you have not yet been contacted by the TMB or the PHP regarding your substance-related arrest, it is advisable to contact us at 512-495-9995 for a free consultation.

Request for Mental Health Evaluation by Texas Pharmacy Board or PRN

Louis Leichter — Fri, 10 Aug 2012 16:26:20 -0600

A Texas pharmacist who is suspected of having a potential substance abuse or dependency problem or other mental health issue which could impact their ability to safely practice is almost always asked by the Texas State Board of Pharmacy or Professional Recovery Network (PRN) to undergo an evaluation with a mental health provider (MHP). This request is typically made in one of two contexts:

A pharmacist has just been referred to PRN and is asked to undergo an evaluation to determine whether they suffer from an impairment issue, and, if so, what is the appropriate course of treatment; or

The pharmacist has been invited to attend an informal conference with the Texas State Board of Pharmacy about a disciplinary issue and is also asked to complete a PRN-coordinated mental health evaluation prior to the scheduled conference.

In both instances the pharmacist should be wary of accepting and undergoing this process unassisted by legal counsel, particularly if the pharmacist has some doubt as to whether they suffer from an impairment or mental health issue. I have seen many, many pharmacists who have unwittingly undercut their own case by failing to hire an attorney until after they are evaluated by an MHP.

The potential pitfalls of this process are multifold. First, the pharmacist is always asked to see a mental health provider who is on PRN's pre-approved evaluator list. PRN's list is primarily composed of licensed chemical dependency counselors (LCDC) as, pursuant to their contract with the Pharmacy Board, PRN is required to pay for the evaluation and, as a lower level provider, an LCDC can charge a much lower rate than a forensic psychologist or psychiatrist.

Besides not possessing the same level of expertise as a physician or psychologist, it has been my experience that the LCDCs on PRN's list tend to repeatedly misdiagnose pharmacists with impairment issues they do not have. A classic case is a person with two alcohol related criminal offenses, such as two DWIs, which are multiple years apart. According to DSM-IV criteria, the near universally accepted gold standard for diagnosis in this area, this fact alone would not qualify the pharmacist for an alcohol abuse or dependency diagnosis. Yet, time and time again, my firm has been retained by a pharmacist who was improperly diagnosed based on stale criminal history or other criteria not recognized in addiction medicine.

Also an issue, most LCDC's are employed by or closely affiliated with a treatment center. Because of this, there is often a presumption on the part of the evaluator that the pharmacist must have a problem simply because they have been referred to their office. Additionally, the LCDC's connection to a treatment center creates an incentive to find some diagnosis in order to justify treatment.

Finally, many of the evaluators on the PRN's pre-approved list suffer from the perception, whether accurate or not, that in order to stay on the list and continue to receive referrals, they must find problems with the pharmacists sent to their office.

All of these factors combine to create a pool of pharmacists who are misdiagnosed with substance abuse or mental health issues they do not have. Once a pharmacist has been diagnosed with a problem they will at a minimum be required to enter into a five year monitoring agreement with PRN. If they refuse, PRN is required by law to refer their case to the Texas State Board of Pharmacy. Once the Pharmacy Board is involved, the Board's disciplinary policies mandate that the person be placed on a five-year Board Order which requires full PRN participation as well as workplace reporting and restrictions. In either scenario, the pharmacist will be required to regularly attend AA, abstain from alcohol and any other potentially addicting substances, and undergo expensive inpatient or outpatient treatment.

In most cases, such a poor outcome could have been avoided had the pharmacist hired an attorney prior to undergoing an evaluation with an MHP either by command of the Board or PRN. Our attorneys have years of experience working with both the Board and PRN and are familiar with evaluators on PRN's approved list. We have the knowledge necessary to collaborate with PRN to locate an evaluator who is fair and holds the expertise necessary for an individual case.

In matters involving allegations of impairment the selection of an appropriate evaluator is oftentimes the single most important point in the pharmacist's entire case. Once a pharmacist has received some form of impairment diagnosis, the damage is often irreparable. If you have been asked to undergo an evaluation by either PRN or the Board, it is absolutely crucial that you immediately contact an attorney familiar with both entities prior to moving forward.

Texas Medical Board Weighing New Rule Applicable to Non-Surgical Cosmetic Procedures

Louis Leichter — Thu, 28 Jun 2012 12:56:32 -0600

Since the summer of 2011, the Texas Medical Board has been considering adopting a new rule applicable to non-surgical, cosmetic procedures such as Botox or dermal filler injections. The proposal would create new standards and requirements applicable to physicians who perform or delegate the performance of such procedures. Currently, this area is covered by Chapter 157 of the Medical Practice Act which governs a physician's ability to delegate the performance of medical acts to a non-physician. This includes a person who is not licensed, such as a medical assistant, and individuals who are licensed but are not allowed to diagnose illness or create a treatment plan, such as a cosmetologist.

Underlying the Texas Medical Board's initiative is a concern that physicians have not been exercising sufficient control and supervision over the unlicensed persons performing delegated non-surgical, cosmetic medical acts. This includes allowing an unlicensed person to determine the need for the cosmetic procedure as well as deciding how this procedure was to be performed- i.e. how many Botox units to use and the selection of injection sites. In the reports submitted to the Board Committee drafting the new rule, Medical Board Staff have argued that this constitutes the unlicensed practice medicine.

Prior to the initial stakeholder's meeting weighing in on a proposed rule, the attorneys at my firm had represented a physician who had delegated filler injections to a medical assistant. The Board invited our client to an informal conference to address allegations that this constituted improper supervision and delegation. Based on our argument that the physician's actions were proper under Chapter 157's delegation provisions, the Texas Medical Board closed the case and convened the stakeholder's meeting.

The current version of the proposed rule would supplement the present requirements for physician delegation found in Chapter 157. The main change is a mandate that any patient receiving a non-surgical, cosmetic procedure must first be assessed and examined by the physician or, in the alternative, a midlevel practitioner acting under the delegation of the physician. The physician or midlevel practitioner is then responsible for establishing a diagnosis, obtaining the patient's informed consent, and preparing a treatment plan. Under the present law, a non-physician can arguably perform many of these functions as long as it is closely delineated by standing delegation orders and protocols developed by the physician.

The Texas Medical Board's proposed new rule also requires that either the physician or a midlevel practitioner be on-site during the performance of any delegated procedures. Additionally, the supervising physician is required to develop and maintain detailed protocols governing their delegates and must also create a quality assurance program satisfying various criteria. Importantly, the proposed rule makes clear the physician retains ultimate responsibility for the safety of the patient and the proper performance of the procedure.

Several exemptions are located in the rule: These include laser hair removal performed in accordance with the Texas Health and Safety Code, the use of nonprescription devices, surgery as defined in the Medical Practice Act, and procedures performed by midlevel practitioners at their supervising physician's primary practice site.

Although the rule has not yet been accepted by the Medical Board, I anticipate it will eventually be adopted. This has been a hot topic lately and it is clear the existing law is not satisfactory to both the Board's Members and Staff. Physicians and unlicensed individuals performing these types of procedures need to be aware of the new rule and poised to ensure they are in compliance when and if it is enacted.

The Texas Medical Board aggressively pursues perceived violations in this area and I would only expect this to increase should the rule be adopted. My firm recently represented a licensed cosmetologist who was issued a Cease and Desist Order by the Board based on their belief my client was practicing medicine in the course of providing Botox injections due to inadequate oversight by her supervising physician. Attorneys at the Leichter Law Firm filed an appeal against the Order and the Texas Medical Board agreed to rescind it based on inadequate notice to our client. Currently, the matter is expected to proceed to a new cease and desist hearing.

Physicians and their delegates concerned about remaining in compliance with both the current law and proposed new rule should feel free to contact the Leichter Law Firm at 512-495-9995. We have assisted several other clients in this area some of which faced active cases with the Texas Medical Board and others who only wanted to ensure their protocols and procedures passed muster.

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.