By: John S. Langley
You are a good doctor. You work hard, are conscientious, and have a very busy practice. You know (perhaps really you only have a vague understanding) that you are charged with knowing the laws and rules governing the practice of medicine. And, while you take the Board seriously and truly never want to pay a visit to Austin for that purpose, you feel confident that you are doing all the right things and practicing ethically and responsibly.
Then one day, it hits your desk.
You receive a letter from the Texas Medical Board, advising that a complaint has been made against you, and that you are instructed to provide “a narrative” in response to the (usually) vague allegations against you.
Now, you’re an intelligent person. You are a professional. You can handle this, right? How hard can it be to just provide what your are being asked for? It’s just a narrative.
So, you sit down at the keyboard and lay out all of the facts that you can think of supporting your care and treatment, and you sprinkle in some persuasive lawyer-like argument for good measure. You’ve got this. You send it in, along with perhaps some records, and rest easy knowing that this ill-founded and ridiculous complaint will go away and you will be advised that there is no investigation, since you have been persuasive in convincing the investigator that there is nothing to see here. Move along.
A month or two later, you get another letter from the investigator. It seems that it’s not only not going away, but now, based upon new information (perhaps in part supplied by you in your narrative response) the investigation is going forward, and is now a “formal investigation.” Oh and by the way, please see the attached subpoenas for your treatment and billing records regarding patients A, B, and C.
Let’s rewind the tape. First, receipt of a notice letter from a Board investigator, while not the end of the world, must be taken very seriously. This is not something one can “wing.” There are many statutes and rules governing the practice of medicine, and you need counsel. You need counsel not only to help you navigate the complicated waters presented by these statutes and rules, but equally importantly, to help with the tone of the narrative you are going to present. This first communication with the Board about your case will in many ways set the tone going forward. It needs to be the correct tone.
Health Professionals in Texas are licensed and regulated by their respective licensure boards. The statutory provisions governing these boards are generally found in the Texas Occupations Code. The Texas Medical Practice Act (MPA) is found at Tex. Occ. Code § 151.001 et. seq.
The MPA is the framework mandated by the Texas Legislature that governs licensure, practice, and discipline of physicians in Texas. The Texas Medical Board (TMB) is the regulatory body charged with regulating the practice of medicine. The Legislature has authorized the TMB to implement administrative rules (Board Rules) to further inform the statutes and assist in the regulation of all aspects of the practice of medicine, from prescribing medications to utilization of midlevels such as nurse practitioners to signing death certificates. Board Rules may be found in the Texas Administrative Code, Title 22, Part 9, Chapters 161-185, 187, and 189-200.
Importantly, links to these may be found on the TMB website, http://www.tmb.state.tx.us. Every physician in Texas owes it to himself or herself to be thoroughly familiar with the Board website, especially the FAQ section, http://www.tmb.state.tx.us/faq. Here one can find policy statements made by the TMB on topics such as Prescriptive Delegation, Prescriptive Authority Agreements, Controlled Substances, Telemedicine, Medical Records, and others.
Getting back to our scenario, if/when you receive a Notice Letter, do NOT go it alone. Contact an attorney to assist you through the process and to present the facts related to your case in the best possible light. You must realize that the TMB is largely complaint-driven in its disciplinary process. For the most part, a complaint from someone (a patient, a patient’s family member, a competitor, an insurance carrier, for example) is what triggers the investigation. The rules pertaining to investigations are found at Tex. Admin. Code § 179.1 et seq.
It is important to understand that the filing of a complaint does not mean a violation has occurred. Many investigations result in the dismissal of the complaint. Often the narrative response with supporting documentation and a position statement by your counsel will demonstrate that no violation has occurred.
On the other hand, the more normal course is for most investigations to proceed to the formal stage. Again, this does not necessarily mean that a violation has occurred. Of course, one would rather the matter be dismissed prior to formal investigation. But, until the formal investigation stage, important tools at the disposal of the investigator, such as subpoenas for records, are not available. So it is easy to understand that most investigations do go to the formal stage for that reason.
If the formal investigation reveals that a violation of the MPA or TMB Rules has occurred, then the case is set for hearing, known as an Informal Show Compliance and Settlement Conference, or ISC. The ISC must be scheduled “not later that the 180th day after the complaint has been filed, unless good cause is shown for scheduling the meeting after that date.” Rule 178.7(b).
You MUST have representation by this point. Do NOT proceed to ISC without counsel. You will receive a letter notifying you of the date of the ISC; that notice must be given at 45 days in advance. Typically no continuances are granted. Along with the notice of ISC will be a packet, often voluminous, of documents, records, expert reports, and witness statements supporting the Board staff attorney’s case. This is critical information that must be evaluated by your attorney, with your assistance. By now, this matter should be on the absolute “front burner” and occupying your undivided attention.
It is important to understand that the ISC panel (two members, a physician member and a public member) will hear your case with the goal of hearing from you, not your attorney. The questions will be posed to you. The answers must come from you. If your lawyer takes too active a role, it gives the impression that you have something to hide, or are not taking the matter seriously enough. Particularly in cases involving the standard of care, you must be intimately familiar with the treatment of each patient that is under the scrutiny of the Board.
Even at ISC, many cases are dismissed. This is particularly true of standard of care cases, where medical judgment often is not clearly defined by a standard. Physicians can disagree to some extent on the proper course of treatment and yet still each be within the standard of care. If there is no prior Board history on the part of the physician, this may also taken into consideration.
If the case is not dismissed, an Agreed Order is typically offered, or on lesser cases, something called a Remedial Plan. An AO is reportable to the National Practitioner Database because it is disciplinary in nature. An RP is not disciplinary and not reportable. However, only one RP is available to the physician. Once it has been accepted, another will not be offered, even years later. AO’s and RP’s offered by the ISC panel must still be approved by the full Board at its quarterly meeting.
If an AO is offered but the physician declines it, the full case is then filed at the State Office of Administrative Hearings (SOAH). All allegations are typically included (even the ones that may have been excluded in the AO offer from the ISC panel). Trial is a full bench trial, with witnesses, experts, and is expensive. Appeals from an adverse decision at SOAH that is adopted as a Board Order are very challenging to overcome.
Cases involving overprescribing of narcotic pain medication, “pill mills”, pain management clinic misuse, and violation of sexual boundaries with a patient are particularly troubling to the Board in our experience, and rightfully so. Cases involving physician competence or impairment are also of concern, although there are programs in place to assist physicians who have these issues. In general, a good physician who needs some help due to impairment is someone that the TMB will generally want to try to rehabilitate rather than lose.
This article could go on and on. The takeaway is this: if you fall under the scrutiny of your licensing board, get counsel involved early. Preferably, counsel who is experienced practicing before your Board.