Health License Defense » Agreed Order

New Standard of Care Rules for Texas Dentists

Taralynn Mackay — Wed, 09 Jun 2010 22:02:26 +0000

The following rules were posted for adoption in the Texas Register (earliest possible date is June 20, 2010) and they expand the regulatory reach of the Texas Dental Board (the underline is the new language and the strikeout is the old language of the rules):

§108.9.Dishonorable Conduct.

The dishonorable conduct section is intended to protect the public from dangerous, unethical, and illegal conduct of licensees. The purpose of this section is to identify unprofessional or dishonorable behaviors of a licensee which the Board believes are likely to pose a threat to the public. Actual injury to a patient need not be established for a licensee to be in violation of this section. Behavior constituting dishonorable conduct includes, but is not limited to [A licensee is in violation of this rule if he or she]:

(1) Criminal conduct–including but not limited to conviction of a misdemeanor involving fraud or a felony under federal law or the law of any state as outlined in Chapter 101 of this title.

[(1) Aids or abets in the violation of a criminal statute or participates in a conspiracy to procure (by corruption, fraud, misrepresentation, or bribery, or both) a dental license for an unqualified person.]

(2) Deception or misrepresentation–engages in deception or misrepresentation:

(A) in soliciting or obtaining patronage; or

(B) in obtaining a fee.

(3) Fraud in obtaining a license–obtains a license by fraud or misrepresentation or participates in a conspiracy to procure a license, registration, or certification for an unqualified person.

(4) Misconduct involving drugs or alcohol–actions or conduct that include, but are not limited to:

(A) [(2)] providing [Provides ] dental services to a patient while the licensee is impaired through the use of drugs, narcotics, or alcohol ;[.]

(B) addicted to or habitually intemperate in the use of alcoholic beverages or drugs;

(D) [(3)] grossly [Grossly ] over prescribes, dispenses, or administers narcotic drugs, dangerous drugs, or controlled substances;[.]

(E) [(4)] prescribes [Prescribes ], dispenses, or administers narcotic drugs, dangerous drugs, or controlled substances to or for a person who is not his or her dental patient;[,] or [not for a dental purpose.]

(F) prescribes, dispenses, or administers narcotic drugs, dangerous drugs, or controlled substances to a person for a non-dental purpose, whether or not the person is a dental patient.

(5) Assisting another in engaging in the unauthorized practice of dentistry or dental hygiene–holds a dental license and employs, permits, or has employed or permitted a person not licensed to practice dentistry to practice dentistry in an office of the dentist that is under the dentist’s control or management.

(6) Failure to comply with applicable laws, rules, regulations, and orders–violates or refuses to comply with a law relating to the regulation of dentists, dental hygienists, or dental assistants; fails to cooperate with a Board investigation; or fails to comply with the terms of a Board Order.

(7) Inability to practice safely–is physically or mentally incapable of practicing in a manner that is safe for the person’s dental patients.

(8) Discipline of a licensee by another state board–holds a license or certificate to practice dentistry or dental hygiene in another state and the examining board of that state:

(A) reprimands the person;

(B) suspends or revokes the person’s license or certificate or places the person on probation; or

(9) Failure to comply with Medicaid, insurance, or other regulatory laws–knowingly provides or agrees to provide dental care in a manner that violates a federal or state law that:

(A) regulates a plan to provide, arrange for, pay for, or reimburse any part of the cost of dental care services; or

(B) regulates the business of insurance.

(10) Improper delegation–improperly delegates any task to any individual who is not permitted to perform the task by law, this chapter, or practice restrictions imposed by Board Order.

[(5) Indicates a fee for dental services on an insurance or other third party reimbursement claim form which is other than the fee which the dentist expects to collect for services rendered.]

(11) [(6)] Unprofessional conduct engages–[Engages] in conduct that has become established through professional experience as likely to disgrace, degrade, or bring discredit upon the licensee or the dental profession.

A Disciplinary Action or Agreed Order Is Forever

Taralynn Mackay — Mon, 01 Mar 2010 15:10:11 +0000

Disciplinary actions or Agreed Orders remain on a nurse’s license forever. When stipulations/restrictions are placed on the license, the nurse’s license is encumbered and those restrictions show up on the license when the license is verified (for example, the verification page will show “Warning with Stipulations” or “Remedial Education”). Once the stipulations/restrictions are completed and the Board sends a letter of completion to the nurse, the verification page will show clear; however, the disciplinary history remains. If asked if the nurse has ever been sanctioned or disciplined*, the nurse will have to answer “yes.”

Recently, I have received several inquiries regarding “setting aside board orders.” This cannot be done and this is misinformation. While criminal incidents can sometimes be expunged or sealed, administrative actions currently cannot be removed from one’s license. Once a disciplinary action occurs, the history remains even once the “probation” is complete.

* The Texas BON currently asks, “Has any licensing authority refused to issue you a license or ever revoked, annulled, cancelled, accepted surrender of, suspended, placed on probation, refused to renew a professional license, certificate or multi-state privilege held by you now or previously, or ever fined, censured, reprimanded or otherwise disciplined you?” to obtain information about past disciplinary actions.

Trying to find a job while under a Board Order

Taralynn Mackay — Wed, 03 Feb 2010 16:30:09 +0000

I have heard from another nurse who is having a difficult time obtaining a job while under a Board Order. This is an ongoing problem especially in this economy. Some employers are refusing to hire a nurse no matter what the basis for the Order. Most nurses cannot afford to fight an Order in court or the facts of the nurse’s case are such that there is a definite violation and fighting in an administrative law court may not gain the nurse much. There are some solutions that can help:

1. Make sure you have malpractice insurance so that you have the financial resources to go to a hearing if you do not agree with the BON’s decision in your case.

2. When looking for a job, ask everyone you know for help in finding a job. It tends to be easier to get a job if someone is on the “inside” vouching for you and your skills. There are also employers out there that understand that most nurses with a Board Order are not “bad” nurses; that the nurse just made a mistake, or was overworked/understaffed, or had a disease relapse etc. These employers recognize that most nurses that have had a Board Order become extremely cautious nurses and become definite assets to the facility.

3. Make sure that you have an experienced and BON knowledgeable attorney assist you with your case before the BON so that you get the best outcome possible.

4. You must present a professional appearance (this includes your resume, your social networking site pages, and any application you complete).

5. Contact your state senators and representatives and ask them to make some changes for the next legislative session in 2011. Some areas that need changes: expand the corrective action provisions to apply to minor practice violations, allow non-public orders for mental health issues and substance abuse (these are diseases, so why allow the publicity?), allow deferred adjudications to be just that and not be considered a conviction by the BON, and change the language in the NPA from shall to may to allow the BON leeway to make determinations based on mitigating factors. As 2010 progresses, I will probably think of more…

I also have more info here: http://nursinglaw.blogspot.com/2009/07/how-to-explain-past-board-orders-to.html