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

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

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

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

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

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

New TMB Law on Pain Management Clinic Certfiication Goes Into Effect on September 1st, 2010

In its last session the Texas Legislature passed a new law concerning Pain Management Clinics. The law, which becomes effective on September 1, 2010, makes it illegal to own / operate a Pain Management Clinic in Texas without first obtaining a certificate from the Texas Medical Board. Although it appears benign enough at first blush, upon closer review of its certification requirements the law’s fairly draconian nature comes into focus.

The new law bars individuals and entities from certification in any of a long list of circumstances. To summarize, if the owner/operator of a pain management clinic, their employee, or any person or entity who contracts with such a clinic have any of the following in their record, they are not eligible for certification by the Medical Board:

1)      Any individual who has had restrictions placed on or been denied a certificate or license by any federal or state agency authorizing them to prescribe, administer, supply, or sell a controlled substance;

2)      Any person who has been subject to a disciplinary action by a licensing entity (such as the Texas Medical Board) for conduct relating to the inappropriate prescribing, dispensing, administering, supplying, or selling of a controlled substance.

3)      Any individual who has been convicted of, pled no contest to, or received deferred adjudication for any felony;

4)       Any individual who has been convicted of, pled no contest to, or received deferred adjudication for a misdemeanor when the underlying conduct relates to the distribution of illegal prescription drugs or a controlled substance as defined in the Medical Practice Act.

In a single stroke this new regulation threatens to close numerous independent pain clinics in Texas. In my experience it seems overly burdensome, strict, and unreasonable to issue such blanket restrictions on those involved in pain management. This is especially true as those physicians whose primary practice involves the treatment of chronic pain are typically subject to some of the greatest scrutiny by the Medical Board. The TMB has a decidedly conservative view on pain medicine and this is reflected in the number of Board Orders and other disciplinary actions which focus on this area.  The new law has a “one strike and you’re out” mentality that does not provide for second chances, the opportunity to redeem oneself, or provide for the possibility that a previous disciplinary action may have been unwarranted or even plain wrong. All a physician needs is a single mark on their record where the Board disagreed with their treatment or prescription plan for a single patient and they will be barred from receiving a certification. Owner’s face a particularly onerous burden as the slightest infraction by one of their workers or contractors in or outside the workplace could mean the loss of the clinic’s certificate and, thus, their business.

I find it regrettable that nothing in the law permits a Pain Management Clinic currently in operation to be “grandfathered in” and given a certificate. Even if clinic has years of demonstrated compliance with all previous rules and regulations its owner could still be denied a certificate and immediately shut down if any of the stipulations above apply. Meaning, that on September 1, 2010, many owners with past infractions may lose their business outright, and those owners who have never faced disciplinary actions will now be faced with firing valuable and loyal employees or contractors who regrettably made mistakes in their past. This is especially troubling as physicians who signed Agreed Orders or accepted plea deals years in the past now face a serious consequence which was completely unforeseen at the time. If these individuals had know the future effect of such settlements, they may been chosen to more strenuously contest past allegations.

The only recourse for a Pain Management Clinic who will not be able to meet the criteria for certification is to attempt to restructure their business so they can meet one of the specified exemptions. In addition to state and federal facilities, the new law exempts hospitals, including outpatient facilities and clinics, as well as hospices. Realistically, the only real option available is sell or rearrange the clinic so that it is a subdivision of a local hospital. This pain management laws also raises potential federal preemptions issues depending on how it is enforced by the Medical Board.

It is unclear what will be the final impact of the new credentialing requirements. What can be said with confidence, however, is that pain management clinics have become a highly regulated sphere in Texas.

What is an Agreed Order? - Texas Board of Nursing

After receiving a letter of investigation from the Texas Board of Nursing and providing their initial response, it is quite common for a licensed nurse to wait for a long time prior to hearing any additional word from Board Staff. When a response does come, however, it is often in the form of a proposed Agreed Order or even a request that the nurse voluntarily surrender their nursing license. If a nurse has not yet sought legal advice from an attorney farmiliar with professional license defense, now would be the time to do so, as signing the proposed Agreed Order is a final resolution of their case and effectively serves as an express or tacit admission that the Board of Nursing’s allegations are true.

So what exactly is an Agreed Order in the context of the Texas Board of Nursing? The Nursing Practice Act, the Board’s administrative rules, and the Administrative Procedure Act authorize a state licensing board such as the Board of Nursing to resolve disciplinary cases through an Agreed Order. By signing the Agreed Order, both the licensed nurse (LVN, RN or APN) and the Board are agreeing to a legal settlement resolving all outstanding allegations in exchange for a set of requirements or stipulations to be imposed on the nurse. These stipulations can range from the active suspension of the nurse’s license, a mandate that the licensee submit to random drug testing over a number of years, a restriction on where and when a nurse can work, supervision requirements, fines, and even demands that the licensee complete additional CE courses.

A common inquiry received by my law office is whether or not a nurse who has already signed an Agreed Order which has been ratified by the full Board can now back out of its requirements. Please know that once an order has been signed and officially entered by the Board, it is extremely difficult to negate the stipulations or re-litigate the underlying allegations with the lawyers for the Board. In a small minority of cases it may be possible to modify the Order by petitioning the Nursing Board’s Eligibility and Disciplinary Committee which typically meets every other month. However; it is very rare to even be granted a hearing before the E & D Committee let alone be granted the requested relief.

A nurse should never sign an Agreed or Voluntary Surrender Order lightly and without first seeking legal advice form a lawyer who is well versed in administrative law and nursing license defense. Otherwise they will not know if the requested Order is legally justifiable or is backed up by sufficient evidence. The Board, coming from their perspective as the protector of public safety, usually seeks, at least initially, the most severe punishment which they feel is supported by their rules and various disciplinary guidelines. Oftentimes, a nurse may be able to achieve a better result with adequate representation by an experienced professional licensing attorney. I strongly urge Texas nurses to seek legal advice before signing any proposed Order; otherwise they may find themselves regretting it later or even belatedly discover they are no longer allowed to work at their preferred place of employment. Too often I see nurses who have signed Orders which they never should have been on in the first place become trapped in a downward spiral of compliance and other issues which threaten their ability to continue practicing.