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

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

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?

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.