Texas Board of Nursing and Standard of Care Violations
Mirroring general trends, the number of standard of care complaints against Texas nurses have risen dramatically in the past few years. All too often, the Board has chosen to punish nurses as individuals for what are actually institutional defects in the larger medical entities where they practice. This is particularly true for nurses serving marginalized patients such as those found in the prison system. Further, just as in cases of chemical dependency, unprofessional conduct, and criminal convictions, the danger to a nurse’s license is very real.
These cases can be especially frustrating for clients because the basic challenge is to their competency as a nurse. All too often the Board is willing to pin the blame on a nurse for situations in which there was no clear breach of the standard of care and in fact no evidence that the stated medical intervention would have made a difference. Modern nursing practice can be a hectic experience and unfortunately the Texas Nursing Board is often reluctant to accept that people do in fact die or get sicker in hospitals without a breach in the standard of care by a nurse. Additionally, the dynamic of these matters is such that the Board may investigate one nurse who then tries to shift blame, whether real or nonexistent, onto another.
The need for legal representation in such cases cannot be stressed enough. Effective advocacy in standard of care cases generally requires the parsing of voluminous medical records and the development of expert testimony on the applicable standard of care and whether or not it was met in that case. A nurse without an attorney will be placed in a decided disadvantage by the lack of their own expert who can independently challenge or verify the opinion of the Board of Nursing’s expert who, not too surprisingly, seems to always side with BON. Add to this the development of any applicable mitigation evidence, and most nurses will be left with a complex situation where an attorney on your side will be an immeasurable help. It’s not worth going it alone, as the Board generally feels they can do what they want to a nurse who doesn’t have a lawyer. Remember, your license and ability to provide for yourself and your family is at stake.
The Texas Medical Board and Recreational Use of Dextromethorphan
In recent years, I have witnessed an increase in the recreational use of dextromethorphan among Texas doctors. An ingredient found in many common cold medicines, dextromethorphan acts as an effective cough suppressant by operating as a narcotic analgesic thereby relieving upper respitory irritation. When administered at higher, non-therapeutic doses, however, the drug causes dissociative hallucinogenic effects that have been compared to those caused by ketamine and PCP.
At a lower recreational dose, “dex” can lead to a mild euphoria. At higher levels the effects include an intense euphoria, vivid imagination, and closed-eyed hallucinations. Taken to extreme levels the user will experience complete alterations in consciousness which can even extend to temporary psychosis. While physical addiction is rare, psychological addiction is likely, and long-term or intense use can cause permanent damage to chemical receptors in the brain.
Increased awareness of dextromethorphan abuse has caused most sellers of cough medicines containing the drug to move it behind the counter. This obstacle is less of a challenge to physicians who have ready access to prescription versions of the same medicines. One of the most troubling aspects of this trend is the fact that the drug screens used by the Texas Medical Board will not detect dextromethorphan. This in part probably explains its popularity among chemically dependent Texas doctors. While dextromethorphan is not currently included in the Controlled Substances Act this could easily change as awareness of its use as a recreational drug spreads.
Unfortunately, use of dextromethorphan and its attendant hallucinogenic effects present serious practice risks and potentially imperil patient safety. Licensees should also be aware that a positive drug screen is not needed for the Texas Medical Board to pursue disciplinary action. Many of the complaints commonly received by my firm consist of nothing more than an allegation that the doctor “seemed confused and out of it” or “like he was drunk” while on duty. It should also be obvious that the Board will vigorously pursue any allegation that a doctor is abusing their prescriptive authority to obtain drugs for recreational use.
Any doctor being investigated or prosecuted for dextromethorphan use should contact an attorney with experience before the Texas Medical Board so that they are aware of their options. A common course of action is to have the doctor evaluated by an independent expert in addiction to determine whether or not they are chemically dependent. If so, then self-referral to a quality drug rehabilitation center is often the best choice for both the doctor and for reaching a beneficial agreement with the TMB. As in all cases, disciplinary charges based on intemperate use and/or abuse of prescriptive authority have their own set of complex issues that is typically better handled by an attorney with experience before the Medical Board.
State Licensing and Discipline for Texas Insurance Agents: A Guide to the Basics
Every Texas insurance agent should be aware of the most common grounds for being the subject of a disciplinary investigation and action by the Texas Department of Insurance as well as the basic disciplinary procedures that are involved in this process.
Although not exhaustive, § 4005.101 of the Insurance Code sets out the most general and frequently used grounds for a disciplinary action against an agent. These include:
- intentional material misstatements or fraud in connection with obtaining a license;
- misappropriation, conversion, or illegal withholding of money belonging to a client, insurer, or health maintenance organization;
- conviction for a felony;
- material misrepresentation of the terms of a policy or contract;
- engaging in fraudulent or dishonest acts or practices;
- improper offering or giving of rebates;
- violations of any insurance law; and
- failure to maintain continuing education requirements.
Texas Insurance Code § 4005.101. Note that many of these -particularly numbers (1), (3), (4), (5), and (7)- are broad-sweeping, encompassing a wide swath of potential conduct. In particular, TDI can and will interpret these provisions as they deem is needed to protect the public from fraudulent or dishonest insurance practices.
The Texas Department of Insurance can impose an array of sanctions on an agent licensee. These include outright revocation/suspension/denial of the agent’s license in its entirety or only as to specific lines of insurance. The TDI can also decide to probate a suspension and attach conditions limiting the scope of the agent’s license. Finally,
the TDI may issue a public reprimand or impose sizable fines. Id. at § 4005.104.
Typically, an agent will first realize that the Department of Insurance is considering a disciplinary action against their license when they receive a letter of investigation. This letter should inform the agent that an official investigation is being conducted by TDI and outline the basic facts that led to its initiation and that are providing its focus. From this point, TDI may conduct an informal hearing on the matter where the agent, their attorney if they have retained one, and the prosecuting staff attorney have an opportunity to present their case before a small panel. This panel will then make a recommendation to TDI. Unless the Department of Insurance decides to dismiss the matter entirely, they will then offer an order to the agent that sets out official findings and specific sanctions.
Continue Reading...Medicare/Medicaid Exclusion Waivers: Sole Community Physicians
Once the Department of Health and Human Services, Office of the Inspector General decides to exclude a physician or nurse from participation in the Medicare and Medicaid programs, that health care professional’s career and employment options grow considerably narrower. For a physician in an institutional setting that accepts patients from these programs, this will likely render them unemployable. Exclusion can easily cause a similar mortal blow to a laboriously-built private practice. Nurses will likewise find their options for employment in the health care field considerably shrink if not disappear.
Fortunately for physicians, and at least in theory nurses, they may be able to obtain an exclusion waiver as the “sole community physician” in their area. 42 C.F.R. § 402.308. The law defines sole community physician as “a physician who is the only physician who provides primary care services to Federal or State health care program beneficiaries within a defined service area.” Id. at § 1001.2(d). In broad outline, the law permits the OIG to waive a physician’s exclusion if they find that their exclusion would cause hardship to local Medicare/Medicaid beneficiaries. “Hardship” in turn can be found where that physician is the sole community physician or “the sole source of essential specialized services in the Medicare community.” Id. at § 402.308.
As an example, I am currently representing a physician from a rural area who would almost certainly be excluded if there was no waiver provision. But, this physician is the only source for at least one hundred miles in all directions for certain basic medical imaging and diagnostic studies as well as essential heart and vascular procedures. Our strategy has been to develop evidence and documentation establishing his status as a sole community physician which can then be used if and when OIG decides in favor of exclusion.
Procedurally, the way this process works is indirect. A physician cannot present their argument and evidence directly to the Office of Inspector General and ask for a waiver. The law is drawn such that only another state or federal agency can appeal for a waiver as to a particular physician. This means that the physician must make their case to the applicable agency who then, if they agree, applies for a waiver with the OIG. Typically, the OIG will accept the judgment of the waiver-seeking agency, but there is no law that says they must.
The waiver provision underlines the need for any physician facing a possible Medicare/Medicaid exclusion to speak with an experienced attorney so that they can properly weigh their options. This is an unforgiving area of the law and only the right attorney can steer a physician through the pitfalls to an outcome where they can still successfully practice medicine.
The Need to Plea Carefully: Criminal Convictions and Medicare/Medicaid Exclusion
A recurring scenario in my office goes like this: A physician contacts me about a letter they have received from the Office of the Inspector General stating that they are investigating whether or not the doctor has been involved in conduct that warrants exclusion from the Medicare and Medicaid programs. Oftentimes this concerns the physician’s plea of guilty or nolo contendre to a crime involving these or other government programs or that has some other connection to health care. This is very frustrating to both me and the physician as under federal law even if they do not directly involve a federal program, if any of these crimes is a felony, the client has a serious chance of being summarily excluded.
Under the Social Security Act, the Office of the Inspector General must exclude a physician from Medicare and Medicaid participation for:
- Conviction for any criminal offense related to a federal or state health care program;
- Conviction for a crime relating to patient abuse;
- Conviction for a felony connected to health care and involving fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct; and
- Conviction for a felony involving a controlled substance.
42 U.S.C. § 1320(a)(7).
The last two exclusion rules are the result of Congressional lobbying efforts by the OIG aimed at cutting down federal payments to “bad” physicians thereby saving program costs. The end product has been a set of broadly drafted laws that permit the OIG to exclude a physician who has been convicted for any of a wide array of crimes that can somehow be related back to health care. It should also press properly informed physicians into more carefully weighing their options when considering a plea.
Keep in mind that under the applicable federal law even a plea of nolo contendre will amount to a felony conviction. The same applies to pleas involving probation, community supervision, or deferred adjudication. Perhaps most important to remember is that an exclusion under any of the four grounds outlined above is both mandatory and for a minimum of five years. The impact on a physician’s practice and employment prospects caused by a five year exclusion is generally devastating if not fatal. Also note that under federal law, if a physician is excluded from one federal program, they are automatically excluded from all federal programs.
Unfortunately, most criminal defense attorneys are not aware of these serious consequences while they hammer out a plea for their physician clients. The fact is a physician should try and plea to a misdemeanor whenever possible, as an exclusion for most misdemeanors is neither mandatory nor for five years. Once a physician has been convicted of a felony related to health care, their only avenue for avoiding the mandatory exclusion is through obtaining a sole community provider waiver. See Title 42 CFR § 402.38. This is done by filing an appeal with the appropriate state agency and arguing that the physician who is to be excluded is the role provider of certain medical services to Medicare/Medicaid patients within a defined geographic area. If they state agency agrees, they will then request a waiver of exclusion from the OIG. This is a narrow exception; if like most doctors, the physician practices in a urban area, he or she will likely be ineligible unless their practice is extremely specialized.
The bottom-line is that any physician facing criminal charges would be prudent with contacting an attorney knowledgeable in the applicable federal law and experienced before the Office of the Inspector General. In this way, the physician can be completely informed of the potential consequences of any particular plea. Failure to do so, can result in a plea that effectively foreclose their ability to avoid federal exclusion.
It is also worth keeping in mind that a criminal conviction will almost certainly cause an inquiry and possible sanction by state licensing boards, professional/credentialing societies, provider networks, and institutions where the physician holds credentials. Thus Medicare/Medicaid exclusion mirrors the general characterization of medical and professional licensing law as a veritable house of cards where the removal of one can cause the rest to quickly follow suit. This is an area where the retention of an experienced attorney can make all the difference.
Department of Public Safety Arguably Denies Due Process
Recently, I have represented a pharmacist whose reapplication for his controlled substances registration was denied by the Texas Department of Public Safety when he voluntarily acknowledged that he had previously been convicted of a felony. He was one of several defendants on trial for the same set of criminal transactions and his own share of the guilt was slight. It was essentially a case of bad judgment and naivety on the part of my client. He had entered into a business relationship with the wrong people and was now paying for their misdeeds. The Federal Drug Enforcement Agency had essentially agreed and declined to take action against his controlled substances registration. In addition the Texas Pharmacy Board has so far chosen not to seek any disciplinary sanction.
In contrast, the Texas Department of Public Safety pursuant to the Texas Controlled Substances Act § 481.063(e)(2)(A) summarily denied his reapplication on the basis of his voluntary admission of his felony conviction. This section of the Health and Safety Code provides for such denial when an applicant has been convicted or placed on community supervision or probation for a felony. Fortunately, the Texas Legislature has also inserted into this chapter a provision allowing the Director of the DPS to probate a denial under § 481.063(e)(2)(A) upon a showing of good cause. The Act and the Department of Public Safety’s own administrative rules also generally allow an applicant to request a hearing wherein they may present evidence and argument in their favor.
As a hearing would almost certainly be necessary to present evidence establishing good cause for a probated order, I requested one as part of my client’s response to the DPS’s decision to deny his reapplication. In reply, the DPS sent a letter reiterating their denial and pointing to § 481.063(h). This Section holds that in the case of a denial based on a felony conviction, the provisions of the Texas Administrative Procedure Act do not apply. This is significant in that this bars access to the normal administrative process, most importantly, a licensee’s right to a full evidentiary hearing before an Administrative Law Judge.
Continue Reading...Board of Nursing Abuse of License Renewal Policy
Currently I am representing a nursing client in a very serious case against the Texas Board of Nursing at the State Office of Administrative Hearings. This matter has been progressing over a long period of time and in the interim my client’s RN license came up for renewal. She filled in the required forms and sent them in along with the mandatory fee. In response she received a letter from BON informing her that they would not renew her license at this time due to the unresolved status of her SOAH proceeding. They have continued to deny her renewal application and so we have been forced to ask for a second SOAH hearing on this issue. Essentially, the BON has made my client seek a separate and additional SOAH proceeding contesting their refusal to renew her license because of the still pending status of the original SOAH proceeding. This makes little sense as a matter of law or logic.
Under the Administrative Procedure Act, a nurse who timely files an application to renew their license ensures that their current license will remain in effect until the final resolution of any ongoing disciplinary proceeding. Texas Government Code § 2001.054. Thus until a final and negative result has emerged from the original SOAH case, the Board can not affect my client’s current nursing license. The only way they could would be through an emergency suspension procedure wherein they would be required to show that my client presents such an immediate and serious threat to the public that the suspension of her license is warranted without a prior hearing. Yet, they did not choose to use this procedure and so must wait till the conclusion of the disciplinary process.
The logic of this rule is clear; unless they can meet the higher showing required of an emergency suspension procedure, the BON cannot sanction a nurse until the contested case process has ended. They have to meet their burden of proof just as any other government agency must before they can take a person’s professional license.
The correct response to my client’s renewal application would have been to either grant it or to stay any decision until the resolution of the prior SOAH action, not an outright denial. Their denial has forced my client to seek, as outlined above, a second contested case proceeding on this issue. If she did not, then after thirty days the Board’s denial would become final meaning that even if she prevailed in the original proceeding her license would have lapsed in the meantime.
What makes it especially difficult to fathom the BON’s action as taken in good faith is the fact that even if they renewed the license, they would be free to suspend, revoke, or apply any other encumbrances to it if they prevail in the ongoing SOAH hearing. A renewed license would have no effect on the array of sanctions that could be opposed if they receive a favorable finding in the underlying proceeding.
The BON’s stance on this issue represents an abusive tactic that contravenes the relevant law and forces my client to suffer the additional emotional strain and attorney fees associated with her need to contest this new issue. This is lamentably another attempt by the Nursing Board to warp the administrative process and strong-arm a nurse when it looks like they might not get what they want.
Note to Texas Doctors: Texas Medical Board to Hold Town Hall Meetings
Texas physicians should be aware that over the next two months the Texas Medical Board plans to host several public meetings in various locations throughout the state. The Town Hall-style events seem to be a positive response to recent criticism that the Board spends too much time pursuing minor disciplinary matters and fails to adequately educate physicians and credentialing entities on what the TMB is looking for as part of the application process. In fact, Board President Dr. Roberta Kalafut is quoted in the press release (a link to which can be found below) as recognizing that “the impressions we have as regulators may not mirror the impressions of licensees.”
As an attempt at meaningful public dialogue, the Texas Medical Board’s Town Hall program should be seen as a positive initiative. This type of outreach is needed after a year that saw the resignation of Executive Director Donald Patrick amid cries of conflict of interest, a lawsuit filed by attorneys for the Association of American Physicians and Surgeons, and widespread questioning directed at the Board’s at times overly zealous prosecution of minor regulatory infractions. Acknowledging and acting on public criticism can do a lot for repairing trust between the Board and Texas doctors.
The meetings will also include a seminar program designed to guide recruiting and credentialing entities through the application process as it relates to the Texas Medical Practice Act. The press release which includes dates and locations for each meeting can be found at the link below.
www.tmb.state.tx.us/news/press/2008/052708.php
TMB Adopts Fast-Track Procedure For Certain Minor Violations
In response to mounting criticism from the public and medical community, the Texas Medical Board has adopted a new fast-track procedure available for certain violations of the Medical Practice Act and Board Rules. The new system bypasses the standard procedure where a physician would be investigated for 180 days followed by another potential 180 days of litigation that could then culminate in a full hearing before the Board or even a contested case proceeding before the State Office of Administrative Hearings. The problem was that this lengthy, stressful, and potentially expensive process applied to every alleged violation no matter how minor.
Under the new regime licensees accused of a violation that is only punishable by a fine and that is not accompanied by any additional charges have two options: They may either agree to the charges and simply pay the fine or dispute the charge in a writing which will be reviewed by a board committee. The third option is to opt out of the fast-track system altogether and undergo the traditional and more intensive investigation and hearing procedure.
Violations eligible for fast-track consideration include but are not limited to:
- failure to provide medical records in a timely manner;
- failure to file a change of address with the Board;
- failure to sign a death certificate in a timely manner; and
- failure to obtain required continuing medical education.
A licensee can choose to fast-track an investigation up to three times, but only once for a given violation. Also note that allegations of inadequate patient care or unprofessional conduct are not fast-track eligible.
Texas physicians should be aware that although the new procedure can be convenient and cost-saving, any sanction imposed will still appear on their record and could have real consequences to their practice. Any licensee who is unsure of the potential impact an admission of guilt could have on their practice or who simply does not feel they have done anything warranting an administrative sanction would still be well advised to consult an attorney experienced in representation before the Texas Medical Board.
Nursing Jurisprudence Exam Now Required For All Initial Licensure Applicants:
Effective September 1, 2008, a passing grade on the Nursing Jurisprudence Exam will be required by the Texas Board of Nursing for of all applicants for initial licensure. Under the terms of a recent amendment to Board Rule § 217.17, initial licensure applicants will be tested regarding their knowledge of:
"board statutes, rules, position statements, guidelines, disciplinary sanction policies, frequently asked questions, and other resource documents accessible on the board’s web page relating to the regulation, licensure, and practice of nursing under the following categories:
- Nursing Licensure and Regulation in Texas;
- Nursing Ethics;
- Nursing Practice;
- Nursing Peer Review; and
- Disciplinary Action.
The Exam will consist of a minimum of 50 questions and will be psychometrically validated. Note that a nurse who has passed this exam will not be required to retake it for another or similar license, unless as a specific requirement of the Nursing Board. A passing score will remain valid for application purposes for one year.
