Health License Defense

Gov. Rick Perry has reappointed three members to the Texas Board of Physical Therapy Examiners for terms to expire Jan. 31, 2017.

Robert “Gary” Gray of Midland is a physical therapist and CEO of West Texas Therapy Services. He is a member of the American and Texas Physical Therapy associations, and an advisory council member of the Texas Tech Health Science Center of the Permian Basin. He is a past board member of the Green Tree Country Club, and past advisory board member of the Odessa College Physical Therapist Assistant Program and Permian Basin Tech Prep Consortium Health Careers Curriculum Committee. Gray received a bachelor’s degree from the University of Texas Southwestern Medical School in Dallas.

Kathleen Luedtke-Hoffmann of Garland is an assistant professor at the Texas Woman’s University School of Physical Therapy. She is treasurer of the American Physical Therapy Association Section on Health Policy and Administration, and a member of the Federation of State Boards of Physical Therapy Examination Development Committee. She is also a faculty liaison for the Texas Woman’s University Student Physical Therapist Organization and past community educator with the Susan G. Komen Foundation. Luedtke received a bachelor’s degree from Rosalind Franklin University of Medicine and Science, a Master of Business Administration from Southern Methodist University, and a doctorate degree in physical therapy from Texas Woman’s University.

Daniel Reyna of Waco is a certified public accountant (CPA) and director of internal audit at Brazos Higher Education Service Corporation. He is a member of the American Institute of CPA’s, Texas Society of CPA’s, and the Historic Waco Foundation. He is also a member of Fuzzy Friends Rescue and the Karem Shrine. Reyna received a bachelor’s degree from Sam Houston State University.

Gov. Rick Perry has appointed four members to the Texas Medical Board for terms to expire April 13, 2017.  Mr. Perry as re-appointed Ms. Julie K. Attebury, Dr. George Willeford III and Dr. Irvin Zeitler.  Dr. Zeitler will also continue to serve as President of the Board.  Mr. Perry has also named Dr. Stanley Wang to the Board. 

Julie K. Attebury of Amarillo is a senior business consultant with the West Texas A&M University Small Business Development Center. She is a past member and past co-chair of the Governor’s Commission for Women, past board member and past president of the Amarillo Independent School District, and the 2005 award recipient of the Amarillo Globe News Woman of the Year. Attebury received a bachelor’s degree from Rice University and a Master of Business Administration from West Texas A&M University. She is being reappointed.

Stanley Wang of Austin is a clinical cardiologist and director of legislative affairs for Austin Heart. He is a member of the American Heart Association, American Society of Nuclear Cardiology, and Travis County Medical Society. He is a delegate of the Texas Medical Association, a councilor of the Texas Chapter of the American College of Cardiology, and vice chair of the TEXPAC Board of Directors. He is also a volunteer speaker with Go Red for Women and a volunteer with the Championship Hearts Foundation. Wang received a bachelor’s degree from the University of Texas, a medical degree from the University of Texas Southwestern Medical Center at Dallas, a law degree from the University of Pennsylvania, and a master’s degree in public health from the Harvard University School of Public Health.

George Willeford III of Austin is a physician and founding partner of Austin Gastroenterology. He is a member of the Texas Society of Gastroenterology, American Gastroenterology Association, and Texas Medical Association. He is also a member of the Austin Heartgift Board of Directors, and a past board member of the Travis County Blood Bank and Austin Center for Attitudinal Healing. Willeford received a bachelor’s degree from the University of Texas and a medical degree from Southwestern Medical School. He is being reappointed.

Irvin Zeitler of San Angelo is vice president of medical affairs at Shannon Medical Center, and a staff physician at the Shannon Minor Emergency Treatment Center. He is chair of the Shannon Medical Center Pharmacy and Therapeutics Committee, and a member of the Trauma and Quality Management Committees, American Academy of Family Practice, Texas Medical Association, Concho Valley Medical Society, and Texas Osteopathic Medical Association. He is board certified by the American Board of Family Medicine. Zeitler received a bachelor’s degree in pharmacy from the University of Texas, a master’s degree in healthcare management from the University of Dallas, and a doctorate of osteopathy from the Texas College of Osteopathic Medicine.

Starting July 1, 2011, USMLE transcripts reported through the ERAS reporting system will no longer include score results on the two-digit score scale. USMLE results will continue to be reported on the three-digit scale. This affects the Step 1, 2 CK, and 3 examinations only; Step 2 CS will continue to be reported as pass or fail. These changes do not alter the score required to pass or the difficulty of any of the USMLE Step examinations.

Since its beginning in the 1990s, the USMLE program has reported two numeric scores for the Step 1, Step 2 CK, and Step 3 examinations, one on a three-digit scale and one on a two-digit scale. The three-digit score scale is considered the primary reporting scale; it is developed in a manner that allows reasonable comparisons across time. The two-digit scale is intended to meet statutory requirements of some state medical boards that rely on a score scale that has 75 as the minimum passing score. The process used to convert three-digit scores to two-digit scores is designed in such a way that the three-digit minimum passing score in effect when the examinee tests is associated with a two-digit score of 75.

The USMLE program requires its governing committees to reevaluate the minimum passing score every three to four years. This process has, at times, resulted in changes in the minimum passing score, expressed on the three-digit scale, and an accompanying change in the score conversion process, to ensure that a two-digit score of 75 is associated with the new minimum passing requirement. A by-product of the adjustment of the score conversion system over time has been a shift in the relationship between the two score scales. This shift has no impact for USMLE score users who use the three-digit scoring scale or for those using the two-digit scale with a primary interest in whether the examinee has a passing two-digit score of at least 75. However, it may create challenges in interpretation for score users who are focusing on two-digit scores, other than 75, and are doing so for purposes of comparing USMLE scores that span several years.

To simplify matters and make interpretation of USMLE information more convenient for score users, the USMLE Composite Committee has asked staff to report two-digit scores only to those score users for whom the scale is intended, i.e., the state medical boards. The Committee also asked that examinees continue to receive scores on both scales so that they are fully informed about the information that will be reported when they ask that results be sent to a state medical board. When examinees request that their results be sent to other score users, only the three-digit score will be reported. Current plans call for these changes to begin with the elimination of the two-digit score from USMLE transcripts reported through the ERAS reporting system starting July 1, 2011. Other systems and procedures for reporting results will be similarly modified as soon as possible after the July 1, 2011 date.

Gov. Rick Perry has appointed Richard ‘Rick’ Bonner Jr. of Corpus Christi to the State Board of Veterinary Medical Examiners for a term to expire Aug. 26, 2013.  Mr. Bonner is a sales associate at Gulf Coast Gathering LLC and owner of Water Truck Rentals Inc. He is a member of the American Rental Association, American Petroleum Institute, Coastal Conservation Association, and Saltwater-fisheries Enhancement Association.Bonner received a bachelor’s degree from Texas A&M University. He will serve as a public member of the board.

Gov. Rick Perry has reappointed Arthur Matson of Georgetown to the Executive Council of Physical Therapy and Occupational Therapy Examiners for a term to expire Feb. 1, 2013. The council prepares the budget and manages property for both the physical therapy and occupational therapy boards of examiners.

Matson is the senior aerospace science instructor at Leander High School, and department chair of the Air Force JROTC. He retired from the U.S. Air Force as a lieutenant colonel.

Matson received a bachelor’s degree from Texas A&M University and a master’s degree in aeronautical science from Embry-Riddle Aeronautical University.

Last week HB 1013 passed the Texas House unanimously.  This bill does several things that will make the both the investigative process and the legal process with the Texas Medical Board much improved.  Some of the highlights of the bill include

A member of the board could not participate in any matter that related to a physician called before the TMB if the member received compensation from an entity other than a medical practice or had a common financial interest with, or was a competitor with the physician who was under investigation.

 Complaints before the TMB. The board could not consider or act on a complaint regarding patient care that was provided more than seven years before the complaint was filed, unless it involved the care of a minor. In the case of a minor, the complaint could be pursued until the minor’s 21st birthday or the seventh anniversary of the date of care, whichever was later.

 The TMB could not accept an anonymous complaint, and each complaint filed would have to include the name and address of the person submitting the grievance.

 The TMB would be required to provide a physician with a copy of the complaint that included a statement of the alleged violation written in plain language. It would have to be delivered by certified mail or personal delivery within 15 days of receiving the complaint. The TMB could send an additional complaint by first class mail with a confirmation of receipt if the physician rejected the original notice. The copy issued to the physician could not be delayed or redacted, unless the complaint: was filed by a patient or a legal guardian or agent under a power of attorney; posed a risk of harm to the public; or would jeopardize the investigation.

 A physician would have at least 30 days after receiving a complaint to prepare and submit a response. The schedule for conducting each phase of the complaints process would be established within 30 days of the expiration of the physician’s time to respond. The TMB would have to complete a preliminary investigation of the complaint within 45 days of the board’s receiving the complaint. The board also would be required to deliver a copy of the preliminary and final reports, including any dissenting or minority report, to the physician.

 Peer review panel. A member of an expert physician panel reviewing the initial complaint would have to be actively practicing medicine in the same specialty as the physician who was the subject of the complaint.

 Informal hearing. A physician in the same medical area as the accused physician could serve as a panelist for a randomly assigned informal hearing to determine whether an informal disposition was appropriate.

 Recording of an informal settlement conference. On request of the physician under review, the board would be required to make an audio recording of the informal settlement conference proceeding and provide a copy of the audio recording to the physician. The costs of producing and copying the recording would be paid by the physician. The recording would be a part of the investigative file and could not be released to a third party unless authorized.

 Administrative hearings. The bill would require the TMB to resolve a contested case with a final order based on the administrative law judge’s findings and conclusions. The board could not change a finding of fact or conclusion of law issued by the administrative law judge, but could obtain judicial review. For each case, the TMB would have the sole authority and discretion to determine the appropriate action or sanction, and the administrative law judge could not make any recommendation on the appropriate action or sanction.

 Judicial review. A physician whose license had been revoked would be entitled to a jury trial in a district court in Travis County.

 This bill is now in the hands of the Texas Senate with only a couple of weeks to go before the close of the legislature.  The Senate should have an up or down vote on this bill.  Given that ever House member voted for the bill, it is possible this will pass as long as it is placed on the calendar of the Senate. 

If you are interested in seeing this bill become law, you should call, write and/or e-mail your State Senator.

It is time to renew and when you review the questions asked by the Board on the renewal paperwork, you see the question about a potential criminal history and have no clue what you should do and what you should not do.  The best answer is to call an experienced administrative lawyer.  There is no substitute for an experienced answer from an attorney, but this blog will attempt to give basics answers but is not intended to be legal advice.

WHAT NOT TO DO:  answer the Board without having an attorney review your response.  It is so sad when a health care professional receives a disciplinary order due to an incorrect answer to a renewal question; so often, these violations are easy to avoid.  Sometimes a health care professional answers a renewal question in a manner which causes Board action on the answer but not on the original criminal issue.  In addition, you need someone on your side advising you regarding what actions to expect from the Board and making sure you do not agree to a disciplinary action which is not warranted.  DO NOT rely upon advice from your criminal attorney, your family, your co-workers, your boss etc.  This is not a time to risk talking to inexperienced people.  Some Board do not take action on minor criminal incidents as long as you do not try to hide the criminal incident from the Board.  For example, the Texas Board of Nursing will typically not take action on a one time shoplifting case, but if you do not disclose the criminal incident to the Board you will be deemed as being deceptive and the Board is more likely to require some type of remediation (once again there are various Board responses and which is used depends on the information provided to the Board).

WHAT TO DO:  Obtain the criminal court records and contact an administrative lawyer with experience before that particular Board.  When you call the lawyer, is the lawyer able to answer your questions or do they say they have to do research?  If an attorney practices frequently before a Board, the lawyer will know the types of questions asked by the Board and what is required to be disclosed.  This type of legal advice is not usually expensive as long as the case does not progress to an investigation before the Board and an attorney can give you estimated costs when you speak to the lawyer.

I know this response looks like an advertisement for hiring lawyers, but seeking appropriate legal advice is the best action to take to protect your license and the risk of possible disciplinary action is too great not to at least speak to a lawyer.

On Sunday, April 10, 2011, the Austin American-Statesman printed an article by Eric Dexheimer, Licensing handcuffs ex-cons. The article focuses on a problem our firm attorneys face frequently with clients — licensees or potential licensees are disciplined for criminal incidents which may have nothing to do with their licensed occupation or the discipline is too punitive when it is not needed to be so in order to protect the public.   On Wednesday, April 13, 2011, the Austin American-Statesman Editorial, Licensing as form of punishment said it best, “No doubt Texas regulators have the best intentions in denying so many-and in our view, too many-people with criminal pasts licenses to work at jobs the state regulates.  That has created a system that now does more harm than good.  Fixing it requires common sense.”  It is well known that bureaucracies are only as good as the people working there and at times there is a lack of common sense, but more severe, I think there is a lack of empathy and the ability to step back and really look at the issue before the Board and determine is there REALLY a threat to the people of Texas.

When I read the article and the editorial I knew that many people will cheer the limiting of licenses to those with criminal histories, but I think they tend to focus on horrific crimes and don’t realize the impact made on people who commit crimes due to a lack of knowledge or because they are young or with the best of intentions.  If you do not speak to such people daily, then you cannot know the heartache and problems for the licensee or the ultimate ramifications for the public.  What about a licensee who is wrongly accused (it happens more than you think:  bad investigations, witness lies, evidence corrupted) and then convicted (Oh, and it does not matter the licensee received deferred adjudication since some regulatory boards consider deferred adjudications as convictions.).  A situation I have seen over and over is during a divorce or custody hearing, one of the spouses accuses the other of some crime and then lie or plant evidence; the other spouse is sure the law will find on their side since they are obviously innocent, but the legal system does not always work that way, so the innocent ex-spouse is now facing an investigation by the regulatory board.  The criminal incident has nothing to do with the licensee’s profession, but the licensee is investigated then disciplined and  loses their job and is now on public assistance because no one wants to hire them.  It happens again and again, professionals attempting to find work outside of their profession will not be hired because the potential employers think they will leave too soon, are too over-qualified, will challenge them for their position etc and a highly educated professional remains unemployed.

Mr. Dexheimer discusses so many cases where the state’s result does not appear to be justified; that there is no nexus between the criminal charge and the practice of that particular profession.   One of the examples involves pharmacist Emmanuel Kanu who lost his pharmacist license, not because of patient care issues or as a result of actions which could harm the people of Texas (potential patients/clients), but because he did not complete the proper documentation when he sent donated medications to a clinic in a third world county.  Mr. Kanu, a pharmacist with no patient care issues for 17 years, is now removed from being able to care for the Texas public for 10 years; how is this outcome reasonable or just? Would one consider Mr. Kanu to be a criminal?  Is his failure to submit the proper documentation in order to send these medications so heinous that we need to waste tax payer funds to convict him and then remove him from the professional workforce?

I also fear the public will ignore the message of this article (and the subsequent editorial) because it deals with “ex-cons” or those with criminal incidents when the message is so much more–the regulatory agencies are vested with great power and there can be an unfair and unjust tendency to abuse and overuse that power; once again, it depends on the individuals within the agency–there are some excellent staff members who warrant great respect, but there are also some who are not protecting the public, they are just punishing.

The problem our attorneys face is most licensees cannot afford to fight the regulatory boards and they are faced with accepting discipline which is not warranted or in some cases, even legal.  But, it is not clear sailing for those licensees that do choose to fight because as seen in Mr. Dexheimer’s article,  like Mr. Kanu, the licensee pays the money to fight the regulatory board, the licensee wins at the State Office of Administrative Hearings (SOAH) only to have the case overturned by the regulatory board.  This is such a wide spread problem that our attorneys testified during the last Legislative session urging Texas lawmakers to support a bill which would make SOAH decisions final and if either party wanted to appeal at district court, they could do so.  Making SOAH decisions final avoids the “second chance at the licensee” actions which occur now when boards overturn SOAH Judge recommendations.  Making SOAH decisions final levels the process and makes it fair for all involved.

These are problems which should be addressed and the regulatory system, if it is going to be vested with so much independent power, should be fair and just and able to stand up to scrutiny.  Ask yourself, who is on the side of the licensee?  Who is making sure there are enough professionals to provide care to the people of Texas?  Is the system driving good professionals out of practice or turning them into cynics who no longer see the benefit in caring?  The public, the boards, and licensees need to be aware of all sides of a situation; not jump to conclusions; and consider the ultimate impact on all.

Gov. Rick Perry has appointed three members to the Texas Optometry Board for terms to expire Jan. 31, 2017. The board oversees licensing and regulation of optometrists in Texas.

Mario Gutierrez of San Antonio is a therapeutic optometrist and optometric glaucoma specialist, president and CEO of South Texas Vision Associates P.A. He is a fellow of the American Academy of Optometry and a member the Bexar County District Optometric Society, and the American and Texas Optometric associations. He is also an adjunct clinical professor at the University of Houston College of Optometry, and a contributor and advisor for Optometry Giving Sight. Gutierrez received a bachelor’s degree and optometry degree from the University of Houston.

John Coble of Rockwall is a therapeutic optometrist and optometric glaucoma specialist in private practice. He is a member of the American Optometric Association, and a member and past president of the Texas Optometric Association and Northeast Texas Optometric Society. He is also past president of the Hunt County United Way, past committee chair of Boy Scouts Troop #83, and is a past board member and past president of the Greenville Rotary Club. Coble received a bachelor’s degree and optometry degree from the University of Houston. He is being reappointed.

Larry Fields of Carthage is an attorney and real estate broker in private practice, and a municipal court judge for the City of Tatum. He is a member of the State Bar of Texas, Panola County Bar Association, Texas Municipal Court Association, Texas Association of Realtors, and Longview Area Board of Realtors. He is also a member of the Carthage Lions Club and Panola County Cattlemen’s Association, and a past board member of the Panola County Chamber of Commerce. Fields received a bachelor’s degree from Stephen F. Austin State University and a law degree from South Texas College of Law. He is being reappointed.