Keep Your Address Current With the Board or Risk Losing Your License:  The nurse must keep a valid, current address on file with the Board and the burden on the Board is only to send notice to the last known address; the Board is not required to do a search for a nurse who has not responded, which is why it is so important to ensure your address is current.

The Nurse Assumes “No news is good news”: A nurse is under an investigation and assumes that since it has been ____ (a certain number of months) since the Board sent anything regarding the complaint, the Board must have closed the case.  Not true!!  The Board will notify the nurse of the ongoing investigation and the Board will notify the nurse when the investigation is closed.  If a nurse is under investigation and is not receiving mail from the Board, the nurse needs to check his/her address with the Board to be sure it is correct and that no further action has occurred or is pending against the license.  This also applies to a nurse who is aware of a Peer Review Finding against the nurse, a lawsuit naming a nurse, a complaint from a patient or family; the nurse cannot just assume the Board is not going to do anything.  The Board will open an investigation if they receive a complaint and they have jurisdiction regarding the complaint.

Don’t Give Up When Facing An Investigation: There are also nurses who give up when faced with an investigation assuming there is no hope or that the issue is so bad they will surely lose their license.   I have spoken to many nurses who think their incident is horrible and they will surely lose their license, but rarely is this true.   If a nurse can be remediated/educated the Board is not always inclined to remove the nurse’s license.  Unless a nurse wishes to cease nursing, it is worth participating in the investigative process and not to just give up.  At the same August 9, 2011 E&D meeting, there are   39 (Disciplinary Orders) + 3 (Reinstatement Orders) + 13 (Eligibility Orders) + 6 (Deferred Disciplinary Orders) Agreed Orders to be presented.  These are the stipulations/restrictions placed on a nurse’s license in response to a complaint filed at the Board.

So, the numbers stack up at 97 revocations versus 61 disciplinary orders; this seems to indicate there are more nurses that deserve to lose their license than are appropriate for restricted licenses and the statistics just don’t support that assumption.  These revocation orders will more than likely show nurses who either did not know about the Board action or decided for whatever reason not to work with the Board in resolving the complaint against them–how unfortunate.  Be cautious and do not allow this to happen to your license.

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.

 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.

 Ms. Robinson also reports that the number of cases being prosecuted has increased.  She did not provide any explanation for that occurrence.  Ms. Robinson states there are currently 624 cases being actively prosecuted by the agency.   She reports this fiscal year they have had 159 informal settlement conferences, four temporary suspension hearings, with “more to come.”   She further states that there are 117 cases pending full litigation before Administrative Law Judges.   Of note, she reported the litigation staff is currently down by five, as four attorneys have left and one is one family leave.   Ms. Robinson did not publicly provide any insight to the sudden loss in legal staff.

 Finally, Ms. Robinson reported there are 771 physicians being monitored by the Board.  Of that, 106 have come from this fiscal year.

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.

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.

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

 Based on a report by the Executive Director on Thursday, November 5^th, the Board trend on investigations appears to be a little less than last year.  In October 2009, the Board opened 50 fewer cases than it did in October 2008.  The Executive Director, Mari Robinson, attributes this change to due more careful initial review, which is now conducted by a physician and an attorney. 

 However, this does not mean that there are only a handful of cases.  There are currently 1875 open investigations with the Board.  Moreover, the Legal Division of the Board is extremely active.  There are 719 active legal cases with the Board.  Of those 101 cases are pending before SOAH.  That is a record number, and means 17.5% of all cases in Legal are at SOAH. 

 Ms. Robinson reports that the Board is experiencing a watermark situation with numbers and she does not see it going down anytime in the future. 

 Additionally, from the discussion held by the full Board on Friday, November 6^th, it appears to me that the Board members are only seeking to become more forceful with people who they deem have violation the Act.