HOW TO
SEEK EARLY TERMINATION OR AMENDMENT OF AGREED ORDERS BEFORE THE
TEXAS STATE BOARD OF MEDICAL EXAMINERS
By
Robert “Bob” Bennett, J.D.
Sheryl Tatar Dacso, J.D., Dr. P.H.
This is the first of a two part article on the issue of
seeking early termination or amendment of an Agreed Order before the
Texas State Board of Medical Examiners.
This law firm has represented many health care providers
before the Texas State Board of Medical Examiners (TSBME) and other
licensing Boards for health care professionals in the State of Texas
on a variety of issues. One
issue that has a common thread among many clients is the request for
termination or amendment of Agreed Orders.
This article discusses issues related to requests for
Termination or Amendment of Agreed Orders.
The Panel of Board members that heard the request for
Termination of this Agreed Order have made a recommendation to
change the number of tests required by the health care provider at
issue. It is believed
by the physician and her counsel, that this recommendation is
currently pending final decision by the whole Board at its next
meeting.
The names of participants and certain facts related to this
case have been changed due to confidentiality requirements.
The manner in which the health care provider responded to the
TSBME and the formulation of his response to the burden of proof
required of him by the Rules of the TSBME may be useful to other
Texas physicians under similar conditions.
Agreed Orders are commonly entered into in association with
Informal Settlement Conferences at the TSBME. Specifically,
Rule 187.19 of the Texas State Board of Medical Examiners addresses
the issue of Agreed Orders
in the following manner: (a) if the board representatives determine
that the licensee has violated the Act, board rules, or a board
order, the board representatives may recommend board action and
terms and conditions for informal resolution; (b) the recommendation
of the board representatives shall be reduced to writing in an
agreed order prepared by board staff and presented to the licensee
and the authorized representative. These
types of conferences have been discussed in previous articles
published by these authors.
FACTUAL
BACKGROUND
The representation of a physician, Dr. Cervidae at the TSBME
is the topic of this article. She
had a history of alcohol abuse starting as a teenager in high
school. Dr.
Cervidae’s drinking history included social imbibing on weekends,
holidays, and after the end of academic semesters.
During
the last year of medical school, she began to drink more as a stress
reliever. Many
pressures combined to create an unbelievable situation of financial,
academic, and personal problems that lead to increased alcohol
abuse. Initially, work
assignments were turned in late.
Next she began showing up late for clinical assignments.
One day Dr. Cervidae failed to show up for a scheduled work
assignment. She meet
with her academic advisor about her obvious poor performance.
Unless a medical reason or some type of emergency could be
given to explain her behavior, Dr. Cervidae was informed that she
faced indefinite suspension. The
explanation given for her
behavior was periodic binge drinking.
The medical school advised Dr. Cervidae to seek medical
treatment and referred her to a psychologist.
After receiving treatment, Dr. Cervidae was diagnosed with
alcohol abuse according to DSM-IV criteria.
Attendance at weekly meetings of Alcoholics Anonymous was
required. A
prescription of Antabuse was also administered.
In
order to obtain the necessary treatment, Dr. Cervidae voluntarily
agreed to a three month leave of absence from school to seek
counseling and treatment for the alcohol abuse problems.
Upon returning to school, Dr. Cervidae had no problems and
excelled in her clinical and academic endeavors.
After completion of her academic and training programs, Dr.
Cervidae applied for licensure with the State of Texas.
She truthfully answered on the questionnaire that she had a
history of alcohol abuse. Dr.
Cervidae was advised by the Texas State Board of Medical Examiners (TSBME)
to contact a local physician for evaluation in the town in which she
relocated after completion of her training program.
This treatment regime was also considered part of a Texas
Medical Association related program for physicians.
The treating physician recommended attendance at weekly AA
meetings, continue Antabuse prescriptions on a daily basis, undergo
three random urine screens per month, and have monthly follow up
visits with the physician. The
TSBME enacted its own urine screen program soon thereafter. Dr. Cervidae switched to the TSBME urine screen program at
the Board’s request. She
has complied with all requirements of the program.
In July 2003, Dr. Cervidae meet with the TSBME.
At that time, she was not represented by counsel.
Without proper pre hearing preparation from counsel, she
admitted that he had several drinks since initially beginning his
treatment program. The
Board decided to grant his license under a Nondisciplinary / Non
public Rehabilitation Order (“Order”), which he signed.
Thereafter, a temporary license was issued to Dr. Cervidae by
the Board.
It was only after Dr. Cervidae had gone to the TSBME hearing
and entered into the Order, that she obtained the services of this
law firm.
REQUEST FOR
TERMINATION OF ORDER
The Order agreed
to by Dr. Cervidae had a provision that it could be terminated or
amended within one year. Specifically,
amendment or termination could be requested by petitioning the Board
in writing. It is within the Board’s sole discretion to grant or deny
the petition without further appeal or review.
Dr. Cervidae made several requests by letter to the TSBME for
a hearing to terminate the Order without consulting with his
attorneys. She received no response to these requests.
Thereafter, Dr. Cervidae approached this law firm to contact
the TSBME for a hearing date. Within
several weeks, a notice letter was received for a hearing date.
With the notice for the hearing was a statement from the
TSBME that Dr. Cervidae could appear herself without the need for
counsel to attend. Further, there was no request for additional
documents or letters of support or recommendation from her employer
or treating physician. However, after attending one hearing without counsel, Dr.
Cervidae knew the importance of having counsel present.
E-MAIL
FROM TSBME
This law firm contacted the TSBME to determine their position
on Dr. Cervidae’s request
for termination of the Order. The
following response was received:
You
are dealing with two entities in regard to your question. There is
agency staff, including myself and Dr. Cervidae's compliance
officer, Mr. Smith. There is also the Board itself, consisting
of Board members. Agency staff can make a recommendation to the
Board on whether or not it supports or opposes requests such as Dr.
Cervidae's. It is then up to the Board to make a decision after
reviewing written materials from Dr. Cervidae 's file and
hearing Dr. Cervidae 's answers to questions and whatever statements
she cares to make. Sometimes agency staff makes a
recommendation, frequently they do not. I am not aware of a
recommendation that has been formulated in Dr. Cervidae 's case one way
or the other at this point.
Rule
187.43 (b) puts it more succinctly: "Modification or
termination requests shall not be contested matters, but
instead shall be matters to be ruled upon through the exercise of
sound discretion by the board". Rule 187.43 can be found
in its' entirety on our web site, it deals with hearings of this
type. Rule 189 deals with compliance matters in general.
I hope the above helps. Call if you have questions.
Joe Jones
RULE 187.43
Rule 187.43 of the Texas State Board of Medical Examiners
provides for the following:
Proceedings
for the Modification/Termination of Agreed Orders and Disciplinary
Orders.
(a)
Unless the board order specifies that the order shall or will be
modified or terminated upon the fulfillment of certain conditions or
the occurrence of certain events, the decision to modify or
terminate a board order shall be a matter for the exercise of sound
discretion by the board.
(b)
Modification or termination requests shall not be contested matters,
but instead shall be matters to be ruled upon through the exercise
of sound discretion by the board.
(c)
If a board order sets out certain conditions or events for granting
modification or termination of an order, the licensee shall have the
burden of establishing that such conditions or events have taken
place or been met.
(d)
If by the terms of the order no specific conditions or events
trigger the requirement that the petition be granted, the licensee
has the burden of proof of demonstrating that one or more of the
following factors should be considered for purposes of analyzing the
merits of the petition and exercising sound discretion:
(1)
whether there has been a significant change in circumstances which
indicates that it is in the best interest of the public and the
licensee to modify or terminate the order;
(2)
whether there has been an unanticipated, unique or undue hardship on
the licensee as a result of the board order which goes beyond the
natural adverse ramifications of the disciplinary action (i.e.
impossibility of requirement, geographical problems). Economic
hardships such as the denial of insurance coverage or an adverse
action taken by a medical specialty board are not considered
unanticipated, unique or undue hardships;
(3)
whether the licensee has engaged in special activities which are
particularly commendable or so meritorious as to make modification
or termination appropriate; and
(4)
whether the licensee has fulfilled the requirements of the
licensee's order in a timely manner and cooperated with the board
and board staff during the period of probation or restriction.
The terms of the Order regarding Dr. Cervidae did not have
specific conditions. Therefore,
subsection (d) and its four subparts applied to Dr. Cervidae’s
situation.
THE
INFORMAL SHOW COMPLIANCE HEARING
Dr. Cervidae lives in rural Northeast Texas
Therefore on the hearing day, she traveled to Austin, Texas
to appear before the Texas State Board of Medical Examiners.
She meet with counsel at the Halcyon Café across the street
from the Texas Board of Medical Examiners.
During that meeting, documents in
Dr. Cervidae’s file were reviewed with her and a mock
question and answer session conducted to prepare her for anticipated
questioning from Board members at the hearing.
Specifically, Dr. Cervidae had the burden of proof of
demonstrating that one or more of the factors in rule 187.43 (d) should
be considered for purposes of analyzing the merits of his request
for termination of the Order. She
believed that it was in the best interest of the public and the
licensee to modify or terminate the order due to the volunteer time
she has given at free health clinics in his current town.
Dr. Cervidae felt that time, expense, and efforts to comply
with the Order caused an adverse economic impact on her specifically
as it related to her efforts to pay off her student loans from
school. Commendable
activities that Dr. Cervidae felt were important to share with the
Board included her
participation in counseling patients and other health care
professionals regarding alcohol abuse; spending more time in the AA
twelve step program; and, the taking on of additional work
responsibilities at her employer. Regarding the issue of fulfillment of the Board’s
requirements, Dr. Cervidae noted that she completed all academic and
training requirements; completed the Texas Medical Association
requirements; had been sober for two years; had attended all AA
meetings; completed all drug testing; and had no negative testing
reports. Consequently,
she believed that she had successfully completed the TSBME program.
After lunch, Dr. Cervidae and her counsel walked to the
William P. Hobby Building. Upon
arrival, they signed in, were issued badges and proceeded to the
Board’s Offices on the 6th Floor.
The Board’s lobby is furnished with no-nonsense furniture,
with staff positioned behind secured protective devices.
A subsequent sign in process in completed and the parties
wait to be called to the hearing.
The hearing process began when a Board attorney, who serves
as the Hearing Officer escorted Dr. Cervidae and her counsel to the
7th Floor. A
two member panel was seated behind a large conference table.
One panel member was a physician and the other was a lay
person. Introductions
were made by the Hearing Officer.
The Staff Attorney assigned to the case was present.
The Compliance Officer assigned to Dr. Cervidae’s case was
several minutes late, and join the process after it had started.
The hearing began in an informal manner.
The Hearing Officer
reviewed the history of Dr. Cervidae’s case with the TSBME and her
request to terminate the Order.
Thereafter, Dr. Cervidae was asked to present her reasons for
termination of the Order. As
outlined above, she presented his viewpoint along the framework of
the four points required by Rule 187.43 (d) for terminating an
Order. Counsel for the
physician gave a more detailed presentation after the physician had
finished his presentation as to why the Board should terminate the
Order and the legal justification for doing so.
The Board members then asked Dr. Cervidae, her counsel, and
the staff attorney for the TSBME to wait outside the hearing room
for a few minutes while
they conferred. After
a short while, all parties were asked to return to the hearing room. The two Board members indicated that Dr. Cervidae had
apparently complied with the requirements of the Order for the first
year. They inquired as
to the position of her employer and treating physician on the
request to terminate the Order.
Dr. Cervidae responded that there was no one in opposition to
the requested termination. At
that time, the Board requested letter documentation from Dr.
Cervidae of the employer’s and treating physician’s position on
termination of the Order. This
was the first time that the physician or her counsel had received
any request for these documents.
The Board members then explained that their experience with
health care providers who had Orders concerning alcohol abuse, was
that many times, people did well in the first year or two, but then
regressed in the later years of the time frame of the Order.
Consequently, it was the Board’s experience that it was in
the best interest of the public safety to continue Orders, at least
past the first year. The
Board members did verbally indicate that they would recommend that
the number of compliance tests to be performed by Dr. Cervidae be
decreased on a monthly basis. This
recommendation would have to be approved by a meeting of the full
Board at its next meeting.
Since this hearing, a written Order has been sent to Dr.
Cervidae for her review. There
is no mention of amending the terms of compliance testing as stated
by the panel at the end of the hearing.
The Order simply states that the Board has denied her request
for termination of the Order. Dr. Cervidae’s
counsel are recommending further follow up with the Board on this
issue.
WHAT IS LEARNED FROM THIS CASE
STUDY
The Board was asked to comment on the issues raised in this
article on request for Termination of Agreed Orders.
The Public Relations representative of the TSBME responded
that the Board does not comment on confidential matters.
The Agreed Order entered into by Dr. Cervidae, while she was
not represented by counsel, undoubtedly indicates that she could
apply for termination or amendment of the Order.
However, there is no language in the Agreed Order proposed by
the TSBME, advising the physician that specific termination or a
reduction amendment of the Order will be granted.
Further, Dr. Cervidae was not asked in advance for documents
or letters of recommendation from her employer or treating physician
as to their position on the request for termination. The
Board undoubtedly is reluctant with physicians regarding the
probabilities of having an Agreed Order terminated or amended.
The physician should have an equivalent playing field with
the TSBME, before, during, and after the Show Compliance Proceedings
/ Hearing. However, the
Board is obviously bias against physicians and discounts the basic
due process rights owed to the physicians.
The basic question remains, “If an order can b e terminated
within a year, why does the Board make it so difficult to do so?”
Why does the Board go out of its way to thwart a physician
who ahs successfully completed the “year” period and should be
terminated?
It is in the best interest of the physician to be represented
by counsel given the emotional requirements of responding to the
issues discussed above and to remain objective.
The Board appears not to want physicians to be represented
adequately, which raises the question of impartially.
We will continue to seek answers to
these questions and report the results in future articles.
Article authored by:
Mark T. Phelps, J.D., M.H.A.
Mark T. Phelps is a Health Care Attorney who specializes in the
representation of Health Care Providers in Health Care Law and
Health Care Litigation. He
is a former Health Care Administrator.
Mr. Phelps currently is an Adjunct Professor in Health Law at
TWU, and an Instructor at The University of Texas Medical School at
Houston. He is Of
Counsel with the Bennett Law Firm and can be reached at Lancaster
Center, 515 Louisiana, Suite 200, Houston, Texas 77002; phone
713-225-6000; fax 713-225-6001.
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