Texas Medical Board Disciplinary Process

In the practice of 21st Century medicine in the United States, physicians are facing increasingly tighter regulation and resulting disciplinary action for related regulatory violations. Texas is no exception. In fact, the Texas Medical Board (TMB) is considered by critics and supporters alike to be one of the toughest, and at times one of the most inflexible, of the state medical boards. They are also viewed by many to be very aggressive and, at times, unduly so. In FY 2007, the TMB opened 2,486 investigations on physicians and completed 2,441 physician investigations that year. The litigation caseload at the end of 2007 was 431. Most of the cases were resolved through the informal settlement conference process (see below); however, they had 51 cases pending contested hearings at the State Office of Administrative Hearings (SOAH). They also held 25 temporary suspension hearings which can be an unnerving experience with almost immediate and drastic implications in regard to a physician’s ability to continue practicing.

Where do complaints to the TMB come from? Just about everywhere including colleagues, allied health care providers, disgruntled employees, former employees, insurance companies, law enforcement agencies, other state agencies, ex-spouses, and of course patients and family members of patients. Complainants’ names are kept confidential from the subject physician unless the complainant waives this confidentiality or chooses to show up at certain proceedings. Complaints can also be made anonymously and are vigorously pursued if there is enough information to move forward.

What follows below are process basics simply for reader convenience. The procedures and governing law are broad brushed to give the reader an overview of the disciplinary process. There are a number of variations that can occur and many more layers of detail involved. Most physicians will need or want to seek experienced and specialized legal counsel to get a better understanding of the process and to get the best possible outcome.

Inquiry/Preliminary Investigation: The disciplinary process typically starts out with a letter to the physician generally stating that an allegation has been made of wrong doing. This is a preliminary investigation letter. This letter is commonly an “inquiry” letter, and usually comes from the Director of Enforcement indicating that a complaint has been made and asking for a quick response. The deadline is 14 days and the letter will state the specific date the response is due. No extensions of this deadline are granted. This inquiry arguably does not constitute an open investigation; however, regardless of the response, an investigation is opened more often than not. If no response is provided, opening of an investigation is almost a certainty. Responding is important to show respect for the process and to get the other side of the matter set out for the regulators. The problem is that the inquiry letter is invariably very vague making a specific response difficult. An experienced attorney can sometimes navigate the agency phone system and get a more detailed explanation, but many times a physician will feel like they are responding in the dark.

Investigation: After the physician has responded to or ignored the inquiry letter (which is a bad idea), an investigation is launched. The physician (and the physician’s attorney if one has been hired for the inquiry response) will receive a notice of investigation with the name and contact information of the assigned field investigator who could be physically located anywhere in the state. Most often, the assigned investigator is a nurse. This letter asks for a narrative explanation to general allegations even if one was provided in response to the initial inquiry. It also contains a two-page Medical Practice Questionnaire for completion and return. A blank records affidavit is provided for completion and attaching to any pertinent medical records that the physician chooses to provide. Deadlines vary, but a physician can expect that they have two to three weeks to get this information in. The deadline is specified in the investigation letter, but can be extended if steps to do so are taken quickly. The field investigator can exercise some discretion in this regard. It is probably best to have an attorney arrange for the extension rather than talking to the investigator directly. While the investigator can provide you more detail and grant an extension, some people have a tendency to say too much. Anything you say can be used against you. Remember: The investigators can be friendly, but they are not your friend. They have a job to do and take it very seriously. For those with a military background keep in mind the old adage: “A guard on duty has no friends.”

At times, you may receive correspondence from the Director of Enforcement and the field investigator asking for the same information, issuing a subpoena, and setting inconsistent response deadlines. This is a result of “form practice” where the left hand may not know what the right hand is doing. A call to the investigator can usually clear this up and consolidate the requests and the deadline.

Responding to an inquiry letter and an investigation letter should not be taken lightly. Once sent, the responses cannot be withdrawn. If you write an angry response, say something colossally stupid, misstate facts, or admit to misconduct, this paperwork is likely to come back to haunt you. Letting the paperwork sit at the bottom of your inbox is not a good idea, but rushing out a poorly thought out response can be just as big a mistake. Common advice is to get to experienced counsel as quickly as possible. A physician should check to see if the inquiry or investigation has triggered mandatory reporting to malpractice carriers, managed care plans, hospitals, or other state licensing boards. Care should be taken in filling out re-credentialing forms or initial applications including DEA and DPS documents. Inaccurate answers can have a devastating ripple effect on one’s licensure, employment, and income stream.

Informal Settlement/Show Compliance Conference

After the first two barrages of paperwork are handled, the investigation could go quiet for many, many months. Although the TMB is statutorily directed to get the investigation completed and, if called for, the physician into see Board representatives, in 180 days, it is common that this timeline will not be met. Physicians under investigation and complainants are periodically notified by form letters that the investigation is ongoing. Sometimes the physician is contacted for additional information or asked to respond in writing to expert reports generated by an internal reviewing panel in the same practice area (i.e., neurology, orthopedics, obstetrics, general surgery, etc.) or from an outside reviewer retained by the TMB.

If during the course of the investigation a determination is made that no violation has occurred, the agency staff can route the matter to the Disciplinary Process Review Committee (DPRC) for guidance or dismissal. If there appears to be a violation, the physician will eventually be notified in writing that in approximately 30 days an informal settlement/show compliance conference (ISC) will be taking place. Sometimes a short letter is received giving more advanced notice and sometimes that letter contains an expert report and another opportunity to respond. At a minimum, a doctor will at some point get a notice letter that confirms the time and date, specifies the allegations, explains the process, and contains a computer disk with most of the relevant documents on it. If a change of the date is needed due to a conflict, the physician must act within 5 days to have the best chance of complying with internal agency requirements for rescheduling. Also, there are strict time lines for submitting written materials for consideration at this meeting.

Ultimately, the physician has to travel to Austin to meet with TMB representatives on a two to three person panel which will always include a public member and physician from either the full Board or a Board District Review Committee (DRC). The physician may be an M.D. or a D.O. and may not be in the same specialty. The panel members should have reviewed the materials well in advance. These representatives have an advising attorney to help guide them, and an agency staff attorney is also on hand to present the allegations. The doctor and any accompanying lawyer have a chance to address the allegations in what can be a collegial discussion or a rather intimidating interrogation. Much depends on the allegations and the personalities of those involved. These meetings are confidential, but the complainant can show up to give a statement and then leave the room. The complainant can also just submit a written statement and waive their right to remain unknown to the physician.

After an exchange of information, questions, answers, and discussions that can last anywhere from about 30 minutes to a couple of hours, the physician and counsel are excused from the room while the panel members deliberate. After deliberation, the panel calls everyone back into the room and a recommendation is announced. The recommendation can be to dismiss in which case it requires approval by the DPRC at the next TMB meeting, defer to get more information, refer to a temporary suspension hearing, refer to SOAH for a contested hearing, or entry into an agreed order of discipline. Most cases are resolved either by an agreed order or dismissal. The basic terms of the disciplinary action are announced and the staff attorney corresponds later with a written document for consideration and execution. An experienced attorney can frequently negotiate the best possible language. Disciplinary action can range from a fine to revocation of license and everything in between and in multiple combinations (i.e., fine and a reprimand, CME, Chart monitoring, drug testing, inpatient treatment, practice restrictions, etc.)

If a dismissal is approved by DPRC, there is a chance that the complainant can get it reconsidered, but this development is relatively rare. If dismissal is approved, the physician will receive a notice letter which can be shown to others to prove the case was dismissed. If dismissal is rejected, another ISC is held or staff is directed to make an offer for an agreed disciplinary order. If action is deferred, more information is gathered and a recommendation is rendered after it has been considered. If an agreed order is recommended, findings of fact and conclusions of law are worked out in writing along with the terms of discipline. The doctor is required to sign and have the order notarized and returned to staff. The full Board considers and approves such orders at its next meeting. Sometimes orders are rejected and other terms offered or another ISC is required. If the ISC panel can’t figure the case out or the doctor rejects any proposed agreed order the case is referred to SOAH for a full contested hearing. If the ISC panel believes that the physician is a danger to patients, a temporary suspension hearing may be convened.

Temporary Suspension Hearings

If a physician is thought to pose a “continuing threat to the public welfare,” they can be subject to an expedited process that may result in a temporary suspension of their license or temporary restrictions on their practice. The process can vary and the temporary action can be imposed without notice or hearing if the case is serious enough. Thereafter, the physician fights an uphill battle through the agency and SOAH to have the matter litigated to conclusion while suspended or restricted. Usually, a physician is given advance notice and is permitted to come alone or with counsel to a temporary suspension hearing before a panel of three TMB members. Rules of evidence are relaxed and while it is a formal hearing following the expected format of most trials or hearings, the panel has a some latitude in how to best proceed. If not suspended or restricted, the case goes through the regular investigation channels and possible scenarios for resolution. If suspended or restricted, an agreement can sometimes be worked out, and if not, the physician must litigate at SOAH or seek appropriate relief from the Travis County District Court. Oftentimes, the only option is a contested SOAH hearing while remaining suspended or restricted until another more final decision is reached by the TMB.

Contested Hearings

If in any case an ISC does not lead to a satisfactory conclusion or a physician is temporarily suspended or restricted with no chance of an agreed resolution, the case goes to the State Office of Administrative Hearings (SOAH). A formal public complaint is filed with detailed allegations and legal citations. The physician has a short time to answer or risk a default judgment. Discovery is initiated much like in a malpractice suit or other civil litigation to include depositions, interrogatories, requests for production of documents, etc. While there is the possibility of being fined and assessed hearing costs, the case is really about whether the physician violated the standard of care and the ability to continue to practice and under what terms and conditions if any. An administrative law judge (ALJ) is assigned to the case and the proceeding is like a judge-alone trial without a jury. Witnesses are called to testify, records are put into evidence, and legal argument entertained. A transcript or recording is made. After the hearing, the ALJ may take weeks or months to issue a Proposal for Decision (PFD) analyzing the evidence and recommending a decision to the TMB. The doctor’s attorney and the agency staff attorney exchange exceptions and replies about the PFD – essentially objections and argument either for or against the PFD.

The full 19 member Board will eventually hold a hearing on the PFD in which the ALJ presents the PFD and counsel for both sides argue their positions. The Board may ask questions, review the pleadings and the record, and deliberate at length. When all is said and done, the Board either votes to adopt the PFD, adopt something different than the PFD, or dismiss the case even if the PFD recommends action. Dismissal at this stage is rare. The physician usually becomes subject to unilateral disciplinary action, but the licensee does have a chance to meet some very short deadlines to ask for a rehearing, and if that is denied, to appeal the case in Travis County District Court. It is important to act quickly and follow the law carefully to preserve the right to appeal. Usually, all administrative remedies must be exhausted before the case goes to court. Appeals can go all the way to the Texas Supreme Court and conceivably in rare circumstances through the federal court system depending on the issues. It is important to keep in mind that courts will typically not change an agency’s decision, but usually defer to the presumed expertise of the agency. If the courts disagree with the agency, they send the case back for reconsideration by the agency (reverse and remand) rather than make their own decision (reverse and render).

It should be noted that at just about any stage of the SOAH contested process, although usually very early on, the parties can agree to take the case off the contested docket to try to resolve it through mediation. This process is usually a day-long event with ALJs functioning as mediators in an effort to help the parties reach an agreement. If no agreement is reached, the case goes back on the contested docket and continues down the road to hearing.

Compliance

Once under an order of any kind from the TMB, the subject physician must cooperate with the agency’s Compliance Department. This department has compliance officers who function much like probation officers to check up on physicians to make sure they are living up to the terms of the order (i.e., drug screens, record keeping, chaperones, prescribing limitations, etc.). Probation appearances are called for and the physician can also ask for modifications and early termination of the order. These proceedings are run very much like the ISC. Apparent violations of an order result in an ISC or a temporary suspension hearing and can also lead to SOAH hearings as well. Sometimes the order itself provides for additional disciplinary action if it is violated.

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