However, there is a strict prohibition about prescribing controlled substances to immediate family members unless it is a documented emergency, cannot get treatment elsewhere, and only for 72 hours.  At the February Board meeting, some Board members were discussing what “immediate family” means.  They decided “immediately family means up to a second degree separation, so it would include spouse, children, parents, brothers, sisters, step-children, aunts, uncles, and cousins.  It would also include step-family members.

1.  Texas Physician Health Program.   Dr. Garland introduced Dr. Alison– practicing psychiatrist – took over from Dr. Jackson .   316 total referrals including self referrals and by TMB.  184 active participants.  72 reported back to TMB.  Talking to several about retiring their licenses.  These will come under a short agreement to conclude an investigation.

8 pending transfers from TMB to TX PHP.  47 brought to attention but have not interviewed.

$170,888 budget  included 31% benefit package for salaried employees. Dr. Garland elected not to participate in that in order to remain in budget.  The figure will be larger for the next fiscal year.   $43,553 returned to general funds.   Ms. Robinson suggests the PHP needs some political help in getting their budget secured and set up a meeting with Melissa in Senator Nelson’s office.  The request will need to come from the PHP and Ms. Robinson will go with them.

PHP would like to allow screens to be done as late as the lab is open (even if it is midnight).   The rule was put in place to prevent physicians from delaying a screen in the hopes of allowing the alcohol to metablolize.  This is not a problem with the EtG results.  Motion to staff to gather information to present at the February meeting to allow Board members to make an informed decision on extending the deadline.  They will research the results with all drugs tested for.

 ENFORCEMENT REPORT

Close out for FY 2010.  Received approx same number of complaints.  6968 in 2009;  6849 in 2010.  Did not open as many complaints, down  by 200.  1700 cases active pending.  Highest ever in October.  The probable cause is the hiring freeze and not enough experts to review the cases; this caused a slow down in processing.

Litigation – put the quality assurance in place.  There were 100 less ISC’s than in 2009.  75 more cases were received into legal.  Appears that the Quality Assurance panel is working. 

 Formal complaints filed  at SOAH were  70 in 2008;    82 in 2009 and  141 in 2010.   Dr. McNeese asks if the outcomes of the ISC are harsher?  Ms. Robinson does not feel this is the case.  She feels the physicians choose this because it takes longer.   Mr. Freshour, Litigation Manager and Ms. Robinson monitor case timelines.  She also offered that respondents feel they will get a lesser settlement.   Numbers of probationers has remained the about the same at 820 in 2009  and  803 in 2010.  Is there a way to come to a settlement that will be feasible under their rules.    TMB has told SOAH that if Licensure has determined not eligible or they feel they need to revoke a license and there is not another option, they will not mediate. 

Ms. Robinson feels that they need to reevaluate what they want to get out of mediation and to leave all pre-conceived notions behind and think outside the box.  She would like DPRC members to give her what their impressions are about mediation. 

Changes to Rule 187 – Procedure Rule:  One judge at SOAH asked why revocation cases are coming to SOAH – why are they not being handled at the TMB.  Statute says, if they are incarcerated or initially convicted, a suspension order can be issued while it finishes out the disciplinary process.  Does the Board want to bring forth the same process for revocation?  This process would allow them to revoke a license more rapidly.  The perception of the public is that it is difficult for them to understand how a physician who is convicted of a felony remains in practice.  She also said that a percentage of Physicians who get revoked in a ISC type hearing .  Motion to adopt A-D changes.  On E – motion to reject changes.  Ms Attebury and Dr. McNeese oppose the motion.

 Changes to Observed Screening:  Item 5  change observed urine screen to  “can waive right to same sex observer because there is none available at that clinic and they do not want to change clinics for proximity reasons.  Motion to change rule to allow physician to chose an opposite sex observer.

Reporting Requirement: Law requires a report to the Board on cases that are over one year old.  There are 750 cases.  All cases that have a 09 file date.  A large share are at SOAH.  This number is up by 300 from last year and it is due to backlog in expert panel reviews.   350 outstanding cases waiting for panel review.   100 are waiting for orthopedic review, especially spinal.  The next largest is pain management.  Some respondents have up to ten investigations against them. 

Office Based anesthesia.  The Board was given samples of the reports they receive.  It is a one page report.  The only thing happending now is the reports get filed under “O.”  Directions to staff.  When a new Medical director is hired, they should review these reports.

 Transition of Care: Dr. McMichael spoke with the Hospitalist Association in Austin.  Isabel Hoverman –  The Joint Commission started to write a rule and there were too many parts.  Center for transfroming Health Care – trying to improve guidelines on things like:  hand hygiene, handing off from the ER to the floor.  No action is being taken at this time because is it being looked into nationally by the Joint Accredidation Commission.

§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;

(C) improperly obtained, possessed, or used habit-forming drugs or narcotics including self-prescription of 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

(C) imposes another restriction on the person’s practice.

(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.

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

Sec. 301.4551. Temporary License Suspension for Drug or Alcohol Use.

The board shall temporarily suspend the license of a nurse as provided by Section 301.455 if the nurse is under a board order prohibiting the use of alcohol or a drug or requiring the nurse to participate in a peer assistance program, and the nurse:

(1) tests positive for alcohol or a prohibited drug;

(2) refuses to comply with a board order to submit to a drug or alcohol test; or

(3) fails to participate in the peer assistance program and the program issues a letter of dismissal and referral to the board for noncompliance.

[Added by Acts 2009 (H.B. 3961), 81st Leg., eff. June 19, 2009]

1. Discussion and review of the Board¿s policies and rules relating to physical and psychological evaluations for mental impairment, physical impairment, and/or chemical dependency/abuse of drugs or alcohol, including review and discussion of the Occupations Code §301.4521; 22 Tex. Admin. Code §§213.20, 213.29, and 213.30; proposed amendments to 22 Tex. Admin. Code §213.33; and the Eligibility and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse, Substance Dependency, or Other Substance Use Disorder.

2. Presentation by Dr. A. David Axelrad, M.D., relating to physical and psychological evaluations, including information regarding objective testing, evaluation criteria, and qualifications of evaluators.

3. Committee recommendations regarding proposed amendments to 22 Tex. Admin. Code §213.33 and guidelines for physical and psychological evaluations for mental impairment, physical impairment, and/or chemical dependency/abuse of drugs or alcohol.

4. Continued discussion and review of SB 1415, enacted by the 81st Legislature, Regular Session, effective September 1, 2009, and Pilot Program on Deferral of Final Disciplinary Actions, including discussion of the feasibility of conducting a pilot program to determine the efficacy of deferring disciplinary actions.

5. Committee recommendations regarding the feasibility of conducting a pilot program to determine the efficacy of deferring disciplinary actions pursuant to SB 1415.

This means that we should see some new rules or guidelines or policies coming from the Board regarding psychological evaluations and something regarding how the Board plans to implement SB 1415. So, more to come….