Texas Medical Board
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I will use my experience as a former prosecutor with the Texas Medical Board to provide you with an insiders advantage
While serving as a prosecuting attorney for the Texas Medical Board, I gained invaluable experience, knowledge, and insight about the "do's and dont's" of representing physicians before the Board.
Attorneys who aren't familiar with handling Board complaints often seek remedies through district courts, which can lead to poor results.
Until a full Texas Medical Board decision is released or suit filed at the State Board of Administrative Hearings (SOAH) all matters are confidential and hearings informal.
Board Members and Investigators Are Not Confidantes or Support Colleagues
While informality with Board directors and investigators can foster exchange of information and disclosure toward a right result, a lack of understanding rules of evidence and proof can creates pitfalls. Providing the wrong information or disclosure can have negative consequences, which can best be avoided by utilizing an attorney with comprehensive experience in all areas of the complaint and investigation processes.
Texas Medical Board Disciplinary Process
The Texas Medical Board is the state agency responsible for the licensure and discipline of Texas Physicians. The Board's mission is to protect the public's health, safety and welfare by regulating the practice of medicine and by ensuring quality health care for the citizens of Texas. The Texas Medical Board also serves as staff for the State Board of Acupuncture Examiners and the Texas Physician Assistant Board.
If you have received a letter from the Texas Medical Board then it is in your best interest to be very clear about what your options are along with a well designed course of action. Please read the following guide to the administrative disciplinary process. A complaint can be filed by any individual, health care provider, insurance company, state agency, or even law enforcement agencies. The identity of a complainant, as well as the complaint itself, is part of the investigative information gathered by board employees and remains confidential unless waived in writing or by testifying in a contested hearing.
What You Can Expect Should You Have a Complaint Filed Against You
- Initial Inquiry
- The complaint process begins with a letter. In most cases the Director of Enforcement will submit a notification to the licensee stating that an allegation has been made of wrong doing. The complaint letter will ask for a response within a specified time period.
- Your expedient action to respond to a Notice of Complaint by the TMB is vital. Early involvement by legal representation is a crucial element to a successful outcome.
- You have the right to self-respond to a Notice of Complaint. However, your direct response can result in substantial loss of personal time and impede daily work schedules and routines. Warning: The complaint process is time sensitive. Should you ignore the inquiry letter and fail to respond, it will trigger an investigation.
- Preliminary Investigation of a Complaint
- After the response to the inquiry letter has been submitted and the conclusion of the preliminary investigation determines a complaint is jurisdictional and that there is probable cause to justify further investigation, an investigation process is started.
- Complaint Investigation
- Licensees under investigation are notified by letters that the investigation is in process. The notice of investigation will ask for a narrative explanation to general allegations and it is also feasible that a request for a two-page medical practice questionnaire is provided along with the notice. The medical practice questionnaire will ask questions about such information regarding continuing medical education hours, privilege status, and other possible infractions. A records affidavit is also provided for attaching to any medical records that the licensee provides. There is a deadline. The licensee has approximately 14 to 21 days to submit the required information packets and narrative. It is extremely important that any discovered inaccuracies or false information submitted to the TMB of the impending investigation be disclosed as soon as possible.
- Suggested Action
- In order to avoid unexpected problems, research should be initiated by you or your agent to see if the inquiry or investigation has triggered mandatory reporting to malpractice carriers, managed care plans, hospitals, or other state licensing boards. Review, and where necessary, action should be taken in submitting re-credentialing forms with hospitals or other licensing forms including Drug Enforcement Agency and Department of Public Safety documents.
Comprehensive Informal Procedures
- Non-Violation Determination
It's not uncommon for the licensee to be contacted for additional information or is asked to respond to expert reports produced by a reviewing panel in the same practice area retained by the TMB.
It is possible that during the investigation process that a determination is made that no violation has occurred, the agency staff can route the matter to the Disciplinary Process Review Committee for dismissal. And the matter ends. If a complaint is dismissed, a letter is sent to the complainant explaining the reason for the dismissal.
- Potential Violation Determination
If a potential violation is determined, a written notice of an *Informal Show Compliance Proceeding will be extended to the licensee and the complainant(s). ISC proceedings are held in Austin, Texas. The ISC Notice will provide of the time, date, specific allegations, explanation of the process, and will contain a computer disk with the relevant documents on it.
* §187.16 - Informal Show Compliance Proceeding (ISC)--A Board proceeding that provides a licensee the opportunity to demonstrate compliance with all requirements of the pursuant Act and Board rules.
It is essential, though not required, for the Physician (or other Licensee under the auspice of TMB) to be present for the proceeding. The Board representatives usually consists of a two to three person panel, which will always include a public member and a respective licensed professional member (physician, physician assistant, etc.) from either the full Board or a Board District Review Committee. These representatives have an advising TMB attorney to help them, and another TMB staff attorney presents the allegations. The licensee and any accompanying attorney will have an opportunity to challenge the allegations. Though not common place, the Complainant may be present to give a statement, or via phone conference.
It is customary for all parties involved to engage in an informal discussion of the allegations. After the discussions, the panel members will deliberate. After deliberation, the panel makes a recommendation. The recommendation can be to dismiss, defer to get more information, refer to a temporary suspension hearing, refer to State Office of Administrative Hearings for a contested hearing, or an entry into an agreed order of discipline. Most cases are resolved either by an agreed order or dismissal.
If dismissal is approved by the Disciplinary Process Review Committee, the licensee will receive a notice letter to show that the case was dismissed.
If dismissal is rejected, another Informal Show Compliance proceeding is held or staff is directed to make an offer for an agreed disciplinary order.
Should action is deferred, more information is gathered and a recommendation is presented after it has been deliberated upon. If an agreed order is recommended, findings of fact and conclusions of law are presented in writing along with the terms of discipline. The full Board considers and approves such orders at its next meeting.
When orders are rejected and other terms offered or another Informal Show Compliance is required. If the Informal Show Compliance panel cannot agree on what to do or the licensee rejects any proposed agreed order the case is referred to State Office of Administrative Hearings for a full contested hearing. If the Informal Show Compliance panel considers that the licensee is a danger to patients, a temporary suspension hearing may be convened.
- Temporary Suspension or License Restriction Procedures
If it is determined that a licensee is considered to, in some significant way, to be a "continuing threat to the public welfare," a temporary suspension of their license or temporary restrictions on their practice is ordered.
It is important to know that a temporary action can be imposed without notice or hearing if the matter is considered to be serious enough. The licensee or his or her agent is required to contest the decision through the agency and State Office of Administrative Hearings to have the matter litigated.
Typically the licensee is given advance notice and is permitted to attend the temporary suspension hearing before a panel of three TMB members. If the licensee is successful in not getting suspended or restricted, the case goes through the regular investigation channels. If the licensee is suspended or restricted, an agreement can sometimes be achieved, and if unsuccessful the physician must litigate at SOAH or the Travis County District Court.
- Contested Hearings
If an Informal Show Compliance proceeding does not lead to a satisfactory conclusion or a licensee is temporarily suspended or restricted with no chance of an agreed resolution, the case goes to the State Office of Administrative Hearings. A formal legal complaint is filed with allegations. The licensee has to file an answer or risk a default judgment.
The case has now escalated to determine if the licensee violated the standard of care and the ability to continue to practice and under what terms and conditions if any. An administrative law judge is assigned and the proceeding is like a judge-alone trial.
Following the hearing, the administrative law judge will issue a Proposal for Decision (See Definition Below), which renders an analysis of the evidence as well as recommending a decision to the Texas Medical Board. The entire member Board will hold a hearing on the Proposal for Decision in which the administrative law judge presents the Proposal for Decision and attorneys for both sides present their positions.
Then finally, the Board will either vote to adopt the Proposal for Decision, adopt something different than the Proposal for Decision, or dismiss the case even if the Proposal for Decision recommends action. The licensee then usually becomes subjected to disciplinary action, however the licensee does have a chance to request a rehearing, and if that is denied, to appeal the case in Travis County District Court. All administrative remedies must be exhausted before the case goes to court.
Proposal for Decision Under the Texas Medical Board Rules (page 174)
- §187.35. Presentation of Proposal for Decision
- Notice of oral argument. All parties and the administrative law judge who has issued a proposal for decision is given notice of the opportunity to attend and provide oral argument concerning a proposal for decision before the board. Notice is sent by hand delivery, regular mail, certified mail - return receipt requested, courier service, or registered service to the administrative law judge's office and the parties' addresses of record.
- Arguments before the Board. The order of the proceeding is as follows:
- The ALJ is present and explain the proposal for decision;
- The party adversely affected is briefly state the party's reasons for being so affected supported by the evidence of record;
- The other party or parties is given the opportunity to respond;
- The party with the burden of proof has the right to close;
- Board members may question any party as to any matter relevant to the proposal for decision and evidence presented at the hearing;
- At the end of all arguments by the parties, the board may deliberate in closed session and is take action on a final decision in open session.
- Limitation. A party is not inquire into the mental processes used by the board in arriving at its decision, nor be disruptive of the orderly procedure of the board's routines.
Source Note: The provisions of this §187.35 adopted to be effective January 6, 2002, 26 Tex Reg. 10867.
Please Refer to the following for more detailed information.
- TMB Disciplinary Process
- TMB Board Rules
- Texas Occupational Code
- Physicians - Chapters 151-165
- Physician Assistants - Chapter 204
- Acupuncturists - Chapter 205
- Surgical Assistants - Chapter 206