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How Should I Respond to My Licensing Board When I Have Received a Complaint Outlining Allegations of Wrongdoing and a Request for a Written Response.

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There is perhaps nothing worse than receiving mail from one’s licensing board and being informed that that individual’s licensing board has received a complaint and has instituted an investigation regarding alleged wrongdoing.  More often than not, the letter contains the allegation(s), notifying the licensee of the basis for the investigation.  Most importantly, the licensing board makes a request for a response or explanation to the allegation(s), requesting that a response be made and returned to the licensing board within a predetermined period of time (time calculated usually from the date of the licensing board’s letter usually rather than the date that the licensee may have received the letter).  Because most, if not all, licensing boards make it a violation for failing to respond to or cooperate with a board complaint, one cannot simply ignore the complaint letter.  Additionally, some licensing boards also make additional requests for information from its licensee.  Some licensing boards make the request with the initial notice letter and some make the request at a later point in the investigatory process.  One such board that makes an additional request for information and at the same time of its initial notice letter is the Texas Board of Nursing ("BON").  In addition to the notice letter specifying a complaint, the BON also includes a separate form that is entitled, “Statistical Data Questionnaire.”  This questionnaire asks the licensee under investigation seven questions.  These questions include:

  1. How many years of experience (i.e., med/surg, pediatric, OB, etc) have you had in your current nursing practice?
  2. At the time of the incident, how many days in a row had you worked?
  3. At the time you received a notice from the Board of Nursing for this reported incident, how long had you worked for your current employer/s?
  4. Have you ever been formally counseled by this or any previous employers for nursing practice issues?
  5. Have you ever been terminated or asked to resign in lieu of termination due to nursing practice issues?
  6. If you have ever been licensed to practice nursing in any other jurisdiction, complete the following [Jurisdiction; RN or LVN/LPN; Date of licensure; Status of license; Has licensed ever been disciplined?
  7. At the time of the incident(s), list all degrees (nursing and non-nursing) held and the date obtained.

So what should you do if faced with this scenario?  First, one must carefully and thoughtfully consider the potential to make matters worse with respect to making any statements (e.g., admissions) that may be adverse to one’s situation and/or making statements that allow for the expansion of the scope of the investigation against the licensee.  Implicit in this concern is the realization that licensing boards have the authority to expand the scope and focus of its original inquiry.  Thus, licensing boards are not resigned to merely the allegation(s) that it originally noticed a licensee.  Keeping this in mind, one should be aware, for example, that if the underlying allegation(s) does not involve a practice situation that would call into question a nurse’s fitness why would it be necessary for the BON to know “how many days in a row [you] had . . . worked?”  The only possible reasons for soliciting an answer to this question are to bolster its own case against the licensee (i.e., through an admission or through the use of a licensee’s statement to establish an aggravating factor(s)) or to expose the licensee to another violation (e.g., accepting an assignment when the acceptance could be reasonably expected to result in unsafe or ineffective client care).  Given that most licensees may already be in high stress, one’s natural inclination is to answer these questions without much thought and reflection as to the consequences of doing so.  Answering questions without proper legal counsel may subject a licensee to additional allegations of wrongdoing because making damaging statements without proper counsel's assistance may weaken or even cripple their case.  Because these questions on a questionnaire are designed, in my opinion, as a trap for the uninitiated, it is highly advisable to contact experienced, skilled counsel and hire counsel when faced with such a notice of allegation letter.  In this particular area, finding a specialized administrative law attorney (regardless of where that attorney may be physically located) is more important than finding an attorney that may happen to also be residing in the same city or town as you may be.    

Critical in this decision, given the multitude of attorneys that one can find with a few simple clicks from one's computer or phone, is to speak and visit with an attorney who specializes in administrative law.  Critically, that attorney should have experience representing other licensees before that respective licensing board.  In this regard, I highly advise that a licensee contact as many attorneys as they can and ask that attorney questions regarding how that attorney approaches handling of these matters.  One should look at it a job interview with the licensee as the one doing the hiring.  In today's information age, consumers are in the best position to research and discern which attorney and/or firm may be best to assist them.  Certainly, a firm's website is a good starting point from which to formulate questions to ask that prospective attorney.   Based on my own experiences, I am continually amazed in speaking with clients how fear and, to a certain extent, naivete, work in conjunction, driving the initial decisions that clients make with respect to hiring an attorney (or the decision to not hire one altogether).  Sadly, I have spoken to many individuals who have regretted hiring their first attorney as they often lament that they have not been provided with answers to even the most basic of questions or that they have not been provided with any updates from their attorney.  A good attorney will not be put off in answering questions regarding handling and will be able to provide a candid overview regarding approach and the overall defense process (which is very different from providing solicited legal advice without the benefit of an attorney-client relationship).  When deciding on hiring counsel and pondering whether or not you may need an attorney during this process, one should keep in mind that it is not coincidental that the current Board’s notice letters no longer contain any reference to the fact that its licensees are free to hire legal counsel if they so desire.  Certainly nurses or any other licensee are well within their rights to contact and hire an attorney to help them shepherd through the complaint process; one that has the potential to be daunting.

Jul 20, 2017

A Closer Look at Misconduct Under the Texas Board of Nursing’s Rule 217.12(6)(H), Providing Information Which was False, Deceptive, or Misleading in Connection With the Practice of Nursing.

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If you are a nurse (or any other licensee for that matter) who has renewed your license with the Texas Board of Nursing (or your respective licensing agency), you have no doubt come across questions that the Board asks of its licensees as part of the licensure renewal process.  Although intuitive, it bears repeating that careful attention should be paid to these questions, answering them and answering them honestly.  Perhaps there is no other form question that I get calls about or in which I have assisted in defending than to the following question, or a variation of this question:

“[h]ave you, within the past 24 months or since your last renewal, for any criminal offense, including those pending appeal: 

  1. been arrested and have any pending criminal charges?
  2. been convicted of a misdemeanor?
  3. been convicted of a felony?
  4. pled nolo contendere, no contest, or guilty?
  5. received deferred adjudication?
  6. been placed on community supervision or court-ordered probation, whether or not adjudicated guilty?
  7. been sentenced to serve jail, prison time, or court-ordered confinement?
  8. been granted pre-trial diversion?
  9. been cited or charged with any violation of the law?
  10. been subject of a court-martial; Article 15 violation; or received any form of military judgment/ punishment/action? (You may only exclude Class C misdemeanor traffic violations or offenses previously disclosed to the Texas Board of Nursing on an initial licensure or renewal application.)

This question, more so than any other, gives rise to a great deal of consternation and angst among licensees, especially in light of a Board rule that makes it misconduct for a nurse to provide information which was false, deceptive, or misleading in connection with the practice of nursing.  See Board Rule 217.12(6)(H).  Those with criminal histories (including arrests) who previously answered this question in the negative and submitted same to the Board should most likely expect a Board complaint to ensue at some point; the basis of which alleging misconduct for failing to provide information to the Board which it considers false, deceptive, or misleading in connection with the practice of nursing in addition to the underlying criminal history which may also subject the licensee to discipline.   

If this occurs, it is highly advisable to contact an experienced administrative law attorney as the determination on whether answering no to this question when it should have been yes (which forms the basis for the disciplinary action) will turn on whether the licensee knowingly and intentionally misrepresented true facts to the Board at the time the licensee completed the renewal form and answered the question.  Because this is the standard that must be utilized, each case will turn on that case’s facts.  In other words, the mental impression and/or understanding of the licensee at the time he or she completed this question.  In handling previous cases, and even though the latest version of this question qualifies the relevant period of time to “within the past 24 months or since your last renewal,” I have seen the Board produce initial applications for licensure or renewal forms submitted by its licensees from many years past; in some instances several decades in the past claiming that the answer(s) provided were false, deceptive, or misleading.  Of course, any underlying conduct that may be actionable such as criminal history must also be further explored and analyzed.

Jul 17, 2017

Recent Changes to Internal Procedures at the TSBDE Involving the Disciplinary Process Makes Hiring Experienced Counsel Even More Important.

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Regulating licensees is a difficult and often thankless task.  Having served in that capacity for different licensing agencies in the role of head counsel, it is not surprising that I tend to agree with this notion.   However, when an agency overacts and implements policies that appear to tilt the process in its favor in the disciplinary process against its licensees, the notion of protecting the public isn’t served.  Some licensing agencies have a long history of turmoil in terms of carrying out its mission, finding great difficulty in attaining the balance of protecting the public juxtaposed to not unduly punishing its licensees or imposing inconsistent disciplinary measures.  The Texas State Board of Dental Examiners (TSBDE) is no different from most other agencies in this regard as it strives to carry out its mission, ensuring the protection of Texas citizens relative to the licensees it licenses.  However, the TSBDE has been plagued with continuing difficulty in applying consistency in its disciplinary methods.  In a report from the Texas Sunset Commission in 2016, a governmental agency who reviews the conduct of administrative agencies to determine if those agencies are operating efficiently and as their mission requires, the findings of the Sunset Commission were not particularly favorable for the TSBDE.  (The report and the TSBDE’s response to the report can be found here).

One of the deficiencies identified by the Sunset Commission was that the TSBDE clarify the use and role of Board members at informal settlement conferences.  The Sunset Commission recommended that the TSBDE clarify the use and role of Board members at informal settlement conferences, limiting the scope of consideration that a board member has in his or her role at an informal settlement conference.  Not surprisingly, the TSBDE disagreed with this recommendation of limiting the scope of consideration that a board member has at an informal settlement conference.  

Having attended countless scores of these informal settlement conferences involving the TSBDE, both as its General Counsel and now in private practice representing dentists, a recent change in the internal policy of the TSBDE makes the necessity of counsel for licensees at these conferences all the more important.  This change, it appears, allows the TSBDE board member at the informal settlement conference, despite having its own in-house counsel attend and participate in the proceeding, to deliberate by himself or herself and without the assistance of its own legal counsel present during the deliberations.  That is to say, only the board member can propose how that particular complaint or investigation should be resolved.  More often than not, the deliberation process critically involves the determination as to what disciplinary action, if any, will be proposed or recommended.  This deliberation, which was previously done in a round circle format amongst the board member and the staff, including its legal counsel, is now done without the assistance of the TSBDE’s legal counsel during these deliberations.  More striking, once the licensee (and his or her attorney) has presented their matter and urged their position(s), they are dismissed for the board member to deliberate.  As part of the dismissal process, the TSBDE's own counsel is also excused from the room and not allowed to deliberate on what course of action, if any, should be pursued.  This is a substantial departure from previous policy and practice in which the in-house counsel and staff continued to be present during these deliberations with the board member, counseling and discussing with the board member through difficult issues regarding a case that is often embodied in these types of cases.  It stands to reason that since the TSBDE’s counsel, who understands burdens of proof, and who would be the individual to take the proceeding to a contested case hearing at the State Office of Administrative Hearings, would be in a position to best understand whether positions or arguments advanced by the TSBDE (and/or the opposition) could withstand scrutiny or challenge at the SOAH level.  Because  of this, the previous practice of the TSBDE (and most other licensing boards) is to allow deliberation and consideration with input from its legal counsel during deliberations as to whether that case should receive a recommendation of discipline.   As it stands, the deliberations are now made solely by the board member at the informal settlement conference without any input from its legal counsel.  As such, and presuming that the recommendations were inconsistent or rejected because they had no basis, negotiations on these points, among other things, between the parties after the informal settlement conference just became much more difficult.  If anything, this underscores the importance of hiring knowledgeable counsel familiar with this agency’s process in order to best determine the course of action in the face of an internal policy change that appears to be heavy-handed.

Apr 09, 2015

What Every Dentist Should Know About TSBDE Rule 107.106-.108, Use of Expert Panel, if Faced with a Complaint and Board Investigation.

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I recently represented a dentist before the TSBDE who had spent nearly two years under a cloud of angst, stress, and turmoil dealing with a complaint and ensuing investigation that was brought by a dissatisfied patient who experienced an adverse effect, bleeding after a deep cleaning.  This patient was not pleased with this outcome, attributing it to the deep cleaning performed by the dentist.  Although these feelings experienced by the dentist are frequently associated with one dealing with a complaint and investigation regarding their licensure, the level in which this matter mushroomed  could have been leveled off and handled appropriately much earlier in the process if one had a clearer understanding of how a complaint and investigation is handled by the TSBDE, offering opportunities to challenge the basis of the opinions held by the TSBDE as to alleged violations from the onset, rather than allow it to reach the point where the TSBDE had assured itself, by and through the opinion(s) it attained from one of its independent reviewers, that a violation had occurred, proposing a disciplinary order against this dentist.

The TSBDE’s proposed disciplinary order reflected that this dentist fell below the minimum standard of care regarding the patient, providing that the dentist had engaged in unprofessional and dishonorable conduct with a failure to deal fairly with the patient.  This dentist, who had grown fatigued in dealing with this matter and who faced with the possibility of signing a proposed disciplinary order that would result in a public and permanent mark on the licensure record, hired the firm to assist in the defense of this matter. 

As a licensee, the thought of a complaint with one’s licensing board is frightening and a process that is truly dreadful by any account.   Without the true knowledge of the inner workings of the TSBDE and how the staff conducts investigations or how its opinions are reached, one may often presume that an investigation conducted by the staff is complete and thorough, with opinions in cases involving the standard of care remaining indelibly firm and unchallengeable, offering little opportunity to prevail if further scrutinized or challenged.  This feeling is often exacerbated if one receives a proposed disciplinary order in the mail during the course of the investigation that proposes discipline and containing unfamiliar language with descriptors such as “Agreed Order,” “Findings of Fact,” and “Conclusions of Law.”  These terms, which may seem benign to the uninitiated, are extremely serious and have longstanding , permanent effects.

During review of the matter by the firm, it was discovered that a proposed finding based on an allegation of insufficient documentation was included in the proposed order even though my client had clearly provided documentation to the staff evidencing the documentation at issue.  As a side note, it is advisable to have all proposed orders reviewed carefully by counsel before agreeing to any order as the terms and conditions it contains may not be supported and to agree to otherwise will have far reaching and permanent implications.  The adage that one cannot unring a bell once it has been rung remains true.

More unsettling was the fact that the staff’s entire case turned on a central allegation that my client had fallen below the minimum standard of care in performing a procedure in a single visit that was generally and historically spaced out over multiple visits.  In this instance, a full-mouth scaling and root planning (SRP) in a single visit.  Mind you, there was no allegation that the procedure itself was performed below the minimum standard of care.  Thus, the TSBDE contended that to do a full mouth SRP in one visit, on its face, constituted a violation as this fell below the standard of care, citing that its independent reviewer had opined as to this proposition.  In other words, the TSBDE's position was that a full-mouth SRP in a single visit was not permissible.

The TSBDE, who initiated an investigation following the complaint, employed the use of its “Expert Panel,” under Board rules 107.106-.108, as it is apt to do in many of its cases, and especially cases involving standard of care.  In our review of this matter, and with some exploration, it was discovered that this process was not adhered to per the rule, raising questions as to the reviewer and his/her ultimate conclusion.  Per the rule, “[i]f the preliminary inquiry shows that there is probable cause that an act by a licensee falls below an acceptable standard of care, all the relevant information and records collected by board staff shall be reviewed by an Expert Panel of Reviewers . . . [reporting] the panel's determinations [to the TSBDE staff] based on the review."  Note that the rule provides for multiple reviewers rather than just a single reviewer.  Per the rule, "[e]ach Expert Panel shall include an initial and second Reviewer and, if necessary, a third Reviewer.” 

In layman’s terms, the TSBDE utilizes a multitude of dentists (or hygienists if involving a case dealing with dental hygiene) practicing statewide who have agreed to review its files and to render his or her professional opinion as to whether or not the subject dentist is in violation.  The reviewer’s identity is protected and remains confidential (at least during this phase).  This power to review files in complete anonymity, although useful in theory, often may work to an aggrieved dentist’s detriment if unchecked or, more importantly, unchallenged.  These dentists and hygienists reviewers have been “board approved” and assist with complaints and investigations.  Case files are then sent to the reviewer for a review and opinion with same then presented to the Staff by written report.  Each reviewer is tasked with determining if the aggrieved dentist met the minimum standard of care and the scope of their review is not restricted to the issues that are specifically in the complaint.  In other words, every potential violation is available for review.  Although the rule allows for the selection of a panelist “who [practices] in the same or similar specialty as the licensee,” it is unclear how the selection process works practically (i.e., will the case be sent to a specialist in that field or a general dentist) or how much care is taken to ensure that this process is adequately aligned to ensure a supportable opinion with the facts of that particular case.  This process is somewhat opaque as it is managed by the staff and done internally.  As a consequence of this, one should not be surprised to potentially receive a broad range of potential violations, even those that were not originally complained of in the originating complaint or that the opinions themselves may appear extreme.

One concern often seen in our practice and particularly true in this case, is that a reviewer may be a general practitioner (as opposed to a specialist) and not as knowledgeable with the procedures or practices involved in a case involving a practitioner with more skill and expertise in that particular subject area.  This example is reflected in a case where a general dentist, as opposed to a periodontist, performs scaling and root planing after a diagnosis of periodontitis.  Again, without knowing basic information about the TSBDE’s reviewer, which the TSBDE Staff is extremely reluctant to provide, determining this can prove difficult.  Irrespective of this important consideration, however, and more often than not, the ultimate dispute will turn on whether these members’ opinions will be sufficient to establish a reasonable, prudent dentist standard that will be necessary to establish in order to sustain a violation. 

Understanding the process of who or whom may have reviewed the matter, and the manner in which one’s case had been reviewed in the development of proposed sanctions is critical in determining how best to handle the complaint and investigation, especially if disciplinary action has been proposed per the opinion(s).  This is critical in determining appropriate defenses, if any, challenging the sufficiency of the opinion rendered by the reviewing member, and/or arguing successfully against adverse disciplinary action sought by the TSBDE.  Without question, there are hurdles that make challenging the opinions of these member(s) difficult, but not completely impossible.  Other concerns that may also be at issue which may not be clear on the surface are any conflict(s) of interest with the member and the Respondent.  Another important concern is determining the reviewing member(s)’ competency to review the issue(s) at hand.  Competency in this sense means whether the reviewer was specialized and knowledgeable regarding all the relevant facts of the case.

Ultimately, this particular case resulted in a complete dismissal of the charges and no disciplinary action was entered against this dentist’s license.  Once the firm began to learn and unravel how the Board’s opinion was derived at the staff level, we were able to effectively prepare the necessary defenses and advocate effectively on behalf of our client.  Our ability to refer this matter for independent review to our own network of trusted “reviewers” (i.e., our own experts and consultants), some who had served in an official capacity with the Board or who had served as “expert panelists,” also proved critical in the result that was attained.  Although this story had a happy ending, it was achieved after nearly two long, exhausting years.  This case, like other cases the firm has handled before the TSBDE, ultimately turned on our understanding of the TSBDE’s utilization of expert panelists and the ability to raise appropriate defenses in response.

Mar 27, 2013

When Dead is not Dead: One Nurse Who Dared to Challenge the Board's Position That Dead is Not Dead and Defended Herself as the Board Sought to Discipline Her Because She Determined That Initiating CPR on a Dead Patient was Futile.

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“Wrong does not cease to be wrong because the majority share in it.”

The above quote is from Leo Tolstoy, A Confession.  It epitomizes a recent case that the firm handled on behalf of a professional nurse who spent the better part of two years being doubted by her then employer, her then superiors and/or colleagues, other colleagues in the profession, previous legal counsel, and, more importantly, the Board.  At every turn she was reminded repeatedly that she was absolutely wrong regarding her decision to withhold cardiopulmonary resuscitation (CPR) when she responded to an unwitnessed arrest involving a patient who had hung himself and was found in rigor mortis.  My client, who responded and immediately performed a comprehensive assessment determined presumptive and multiple conclusive signs of death.  Based on this, she determined that it was futile to initiate any resuscitative measures (i.e., CPR).  She determined that CPR was not proper and elected to not initiate CPR. 

To my client, dead meant dead.  To the Board, despite its acknowledgement that the patient was found dead, dead is not dead and even if one were dead, a nurse’s duty to the deceased does not end.  This belief lead the Board for the better part of two years to unflinchingly pursue public and permanent disciplinary action against my client.  When my client held firm in her belief and refused to accept discipline, this matter was scheduled by the Board for a contested case hearing at the SOAH.  Recently, and upon our filing of a motion for summary disposition (a motion requesting the judge dismiss this case), the Board, in response, dismissed this matter without any discipline against my client.  This case, not unlike others that we have handled, saw the Board take some untenable positions during the course of its investigation and throughout, providing harsh and scathing criticism of my client for her decision to withhold CPR.  The Board’s conduct and tactics were ratcheted up tenfold after it filed charges with the SOAH with the judge commenting that this case was "contentious."

Factually, an LVN on the scene disagreed with my client's decision to withhold CPR and began to argue with my client that CPR must be initiated.  When rebuked, the LVN alerted the charge nurse, an RN, who was not immediately on scene.  Once alerted, the charge nurse ordered that CPR be initiated.  This case came to the Board’s attention when my client informed her then employer, well after the fact, that she would respond in the exact same manner should this situation occur again. 

The Board took the undeniable position that an RN, who responds to an unwitnessed arrest of a patient that does not have a valid do not resuscitate (“DNR”) order, may not exercise judgment and make a decision to withhold CPR despite clinical signs supporting inappropriateness or futile intervention.  In my client’s case, a determination of inappropriateness or futility was made based upon presumptive and conclusive signs of death that were present; the latter being livor mortis and rigor mortis.  

The Board’s unmistakable position in this matter was that regardless of whether a patient is or was beyond the need for emergency medical intervention (i.e., resuscitative efforts; here, CPR), the generally accepted standards require that a professional nurse initiate CPR intervention.  Obviously my client disagreed.  She and I were told repeatedly during the investigative stage, during settlement conference, and while preparing for a formal hearing that she was wrong, that case law supported the Board’s position (we note this to be untrue), and that the Board considered this a “willful” act and would seek to impose discipline against her.  For good measure, a documentation allegation was leveled against my client and made its appearance for the first time only a few months before the actual hearing at the SOAH.

Essentially, the Board alleged that my client failed to practice professional nursing in an acceptable professional manner consistent with public health and welfare and violated her standard of care by failing to initiate CPR.    The Board complained that my client "failed to care adequately for a patient or to conform to the minimum standards of acceptable nursing practice in a manner that, in the Board’s opinion, exposes a patient or other person unnecessarily to risk of harm,” and that she engaged in “unprofessional or dishonorable conduct that, in the board’s opinion, is likely to deceive, defraud, or injure a patient or the public.” 

The Board staff, although it has and will continue to deny same, dismissed this case because they ultimately recognized, perhaps reluctantly, that we would not give up the fight, but more importantly, that they would lose at the SOAH based on the law and then, even if the full Board decided to impose disciplinary action following the SOAH hearing, would lose on a collateral issue in District Court and, if necessary, the Supreme Court, given the constitutional issues that we raised in our defense of this matter.  Baffling in their approach, the Board, despite a specific written policy on point that justified my client's action, took the position that it was free to ignore such a policy or apply it unevenly, selectively or limitedly.  When done so, this leads to the absurd practice of allowing it to pick and choose which nurse or which setting its own written policy applies to.  Although the Board believes it can and attempted to do so before dismissal--treating "orange" nurses differently from "purple" nurses--the United States and Texas Constitution instructs otherwise.  

The problem with the Board’s substantive case, with respect to the law, was that it could not establish the elements requiring that my client’s action exposed the patient to unnecessary risk of harm or that her conduct injured a patient.  Simply put, if it is undisputed that one is dead, what actually is the exposure to risk of harm or injury to that patient?  If the Board staff asked itself this question, and one must presuppose that it did given that they are the authorities regulating this practice, it begs the question of why did staff aggressively pursue disciplinary action against an RN given these facts relative to the law?  Irrespective of whether or not staff did so, it appears that there is a larger issue and agenda in play that cannot be answered here in this pedestrian blog posting.  Ultimately, we surmise that the answer may be found in the Board's hubris and the pervasive belief that the Board alone believes that it is the only entity that can define what the standard of care is and only it can determine how its policies and/or rules are applied or interpreted.  This, even for the Board, is pretty brazen.

For purposes of argument, if the Board's logic is followed to its natural conclusion, an RN must initiate resuscitative efforts in situations involving decapitation, a patient found in a state of decomposition, a patient presenting with all of the following presumptive signs of death (e.g., (1) patient unresponsive; (2) no respirations; (3) no pulse; (4) pupils are fixed and dilated; (5) body temperature indicated hypothermia (i.e., cold to the touch relative to the baseline skin temperature); (6) generalized cyanosis), a patient presenting with other conclusive signs of death (e.g., livor mortis), and where the provider’s safety could be comprised if resuscitative efforts were initiated.  This, for anyone other than the Board, is mere folly; especially to the American Heart Association who is the leading authority on the standards for CPR and recognizes exceptions for withholding CPR; itself recognizing futility (incredibly, even the Board recognizes futility).

This case, overall, presented with many issues, and many messages from the Board; many of them chilling.  One of the most chilling is that the Board discounted information learned by an RN during a comprehensive nursing assessment and discounted other circumstances and assessments derived by that RN that could influence a decision on the part of the RN to not initiate CPR.

This case had a myriad of problematic issues for the Board and one must presuppose that the Board was cognizant of same, but was willing to suspend the application of its own policies (Board position statement 15.20), re-interpret its policies as it deemed fit, and ignore the the law and its own administrative rules in order to seek discipline against my client at all cost. 

In the end, this case was dismissed by the Board in response to our motion for summary disposition, but prior to a ruling by the SOAH ALJ on my client’s motion.  Had it not been dismissed we were confident the same result would have been achieved per the judge's ruling in favor of our motion.  The Board, as it may likely, can now choose to explain or spin this matter how it sees fit.  It's best tactic, however, is remaining silent on this issue as evidence by its dismissal prior to further judicial involvement or scrutinty.  Without a doubt, the groundwork that frames its belief that my client was wrong can still be employed in similar cases going forward.    

Finally, I add parenthetically that I am extremely proud of the expert we retained who was unequivocal in his opinion no matter how testy or agitated Board counsel became during his deposition.  Moreover, I am extremely proud of my client for the fortitude that she exhibited during this entire proceeding.  Nurses are trained to save lives and and often encounter many life or death situations.  When death occurs or has occurred that involves a nurse, this gives rise to a multitude of emotions, many of them raw.  These emotions were compounded negatively by the Board in seeking to impose discipline.  Regarding my client, a much lesser individual would have questioned themselves and likely succumbed to the Board’s tactics and doggedly, aggressive pursuits to initiate discipline against her.   Despite her triumph if it can even be considered as such, this entire process came at great costs to her professional reputation and emotional well-being.  In the end, she proved, without question, her conviction and belief that “wrong does not cease to be wrong because the majority share in it.”

Aug 31, 2012

It is Confidential Only When we Say it is Confidential - Troubling Practices of the LPC Board

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With the exception of a few differences here and there, as to be expected, most licensing boards operate fairly the same in the disciplinary context once a complaint has been filed and during the pendency of an investigation.  That is to say, complaints/allegations and ensuing investigations conducted by a licensing board remain confidential until either formal charges are signed and/or docketed with the State Office of Administrative Hearings (“SOAH”) or formal disciplinary action has been accepted and entered as a matter of record by way of a board order.  This is provided for in each board’s enabling statute and may further be reflected in that board’s administrative rules.  Because of the requirements imposed by statute, licensing boards do not have any discretion as to whether or not they will comply with this requirement.

Despite the clear language in the law, this has not been the practice involving the Texas State Board of Examiners of Professional Counselors, the entity who regulates licensed professional counselors ("LPC").  Generaly, during the investigation stage, LPCs are invited to appear before a panel of board members at a “Complaints Committee” meeting.  The purpose of the this hearing is to discuss the complaint against the licensee and to determine what disciplinary action, if any, should be recommended.  This hearing affords the licensee an opportunity to appear in-person, to respond, and provide explanation to the allegation(s).  Although couched in terms of an “invitation” meaning that a licensee could decline to attend, this does not mean that the Complaints Committee will not convene, hear evidence, or consider the case if the invitation is declined. The Committee will convene and take action irrespective of the licensee's attendance.   With or without the licensee, at this proceeding, the findings of the investigation, reduced to a written report by the investigator, are presented to a panel of board members.  At that time, the licensee, if present, is afforded the opportunity to provide his or her account, give explanation, and field questions from the panel members and staff.  Oftentimes, the complainant (the person who filed the complaint) is also present and is afforded the same opportunity to address the panel members.  As expected, this proceeding and the nature of the allegations lends itself to being emotionally charged and oftentimes, explosive.

Overall, this process is not unusual.   However, what I find unusual, concerning, and troubling is that these hearings are noticed and scheduled as public meetings and conducted as such.  This means that anyone and everyone can show up if they so choose.  These public meetings are generally held quarterly during the calendar year at various locales throughout the state and more often than not at colleges and universities.  This is done for the express purpose of allowing attendees to sit in, observe, and watch.   Oddly enough, and as an aside, the Board encourages attendance by giving continuing education units to attendees.  Conversely, licensees being investigated are not eligible for these units.  Although the practice is well-intentioned (to educate), the fact of the matter is that licensees’ identities and very damaging allegations are discussed in an “open” forum.  I believe this practice is blatantly in violation of the statute as the veil of confidentiality afforded by statute is lost.  Over the years, I have spoken with at least three different LPC Board in-house attorneys about this issue and although they acknowledge the mandates of confidentiality of the investigatory process by law, they cannot provide explanation as to why these proceedings are held in a public venue.  They cannot provide justification to reconcile their practice with the law.  Having represented numerous clients at these proceedings, it is apparent to anyone sitting in one of these hearings that one can easily learn the identity of each licensee (i.e., full names are frequently mentioned), the town in which they practice, how long they have been practicing, the damaging allegations discussed in full detail and at length, and the proposed discipline recommended by the panel. 

One can elect, as provided for under the rules, to bypass the complaints committee hearing altogether (i.e, decline to attend) and request a meeting at an Informal Settlement Conference (“ISC”).   As another aside, these ISCs are conducted between the board and the licensee and/or their attorneys and in observance of the confidentiality provision (i.e., no one else is allowed to attend).  However, the ISC is only held after the Complaints Committee meeting and if the case has not been dismissed, the licensee is now faced with trying to convince this same board that the recommendation for discipline entered by the complaints committee in his or her absence was in error.  The problem facing a licensee is compounded due to an inherent bias of some board members based on comments regarding the absence or failure of a licensee to attend the initial Complaints Committee meeting.  As one can see, this presents quite the conundrum with respect to whether to attend a complaints hearing which is public in nature or opt for an ISC knowing that a recommendation has already been made and the panel's proclivity to frown on nonattendance by a licensee.   

It does not appear that the LPC Board will change the way this practice is conducted.  If anything, this board appears to encourage, embrace, and welcome a myriad of attendees during these hearings, none of whom have any relationship to the complaint/investigation.  Sadly, the adage of "do as I say, not as I do" appears to be in the mode of operation here.  As with all things that are less than optimal, a firm understanding in the way this Board operates is key to determining the best approach and proper navigation through this process.

Jun 08, 2012

The Ends Do Not Justify the Means: A Closer Look at the Texas Board of Nursing’s Recent Disciplinary Pursuits Against Nurses Couched Under the Auspices of Protecting and Promoting the Welfare of the People of Texas.

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Although the firm handles disciplinary cases dealing with a wide range of professional licensees, we tend to do a significant number of cases involving vocational and professional nurses with the Texas Board of Nursing (BON).  We believe this is largely attributable to clients seeking us out because of our experience having served as an Assistant General Counsel with the BON and, while there, having been entrusted to advise the staff on enforcement issues and prosecuting enforcement cases.

Increase in Docketed SOAH Cases

If you’ve been reading about or following the BON, you know that there has been a recent surge in cases docketed for a contested case hearing before a judge (administrative law judge or ALJ) at the State Office of Administrative Hearings (SOAH).  This is directly related to the increase in the enforcement and legal staff at the Board.  Given the flush in resources, the BON has pursued more cases at SOAH.  Of particular interest, however, has been its posture in pursuing more aggressive positions regarding the interpretation of its statutes and rules.  This, in part, is designed to push nurses into settlement knowing that the BON has the luxury of resources that they do not.  However, such strategy, as reflected in some of the decisions written by SOAH ALJs, has not resulted in success for the BON relatively speaking.  Irrespective of the fact as to whether the BON has or has not prevailed in these SOAH cases, the concern arises in the hard line approach utilized by the BON.  This continues to raise alarms for practicing lawyers in this area and, more importantly, for all nurses practicing in the state whether or not they themselves are the subject of a complaint.

SOAH Cases Generally

Generally, going to a contested case hearing at SOAH is not a course of action that is the immediate goal of each case the firm handles although we recognize that a contested case hearing is necessary at times to protect our clients’ interests.  This usually occurs when efforts at settlement have failed or the clients do not want to accept a permanent disciplinary order being proposed by the BON.   

The BON's Broad Reading and Interpretation of its Statutes and Rules in Order to Justify Disciplinary Action.

The goal of the BON is to protect the the public safety.  A review of recent SOAH cases involving the BON shows that the BON, in its efforts to protect the public safety, continues to push the envelope in its interpretation and application of its statutes and rules.  The firm has seen how the BON staff can take unreasonable positions based on undeveloped cases or their insistence on application of the statutes and rules against nurses that are improper, misapplied, or inappropriate relative to the facts of the case.  In light of its unyielding and oftentimes, tunnel vision pursuit, the BON's interpretations and positions are beginning to be received with more guardedness by the SOAH ALJs.  In some instances, the BON’s interpretations and positions are being rejected by the ALJs altogether. 

Illustrative Case Demonstrating That the BON Blurs The Line Between Professional and Personal Conduct.

In a case that illustrates the unrestrained approach taken by the BON, the BON attempted to impose disciplinary action on a nurse who was approached by a stranger in the hospital parking lot as the nurse was leaving her vehicle on the way to begin a shift.  Unbeknownst to the nurse, the man was a process server.  The nurse, feeling frightened and believing that the man was going to harm her, took out her legally permitted firearm to protect herself.  Not a single shot was fired and no criminal charges were filed against the nurse.  Nevertheless, this did not dissuade the BON in bringing disciplinary action.  Essentially, the BON argued that this conduct was unprofessional since the nurse’s action “caused or permitted physical, emotional or verbal abuse or injury to the client or the public.”  Pulling a firearm, per the BON, was "permitting abuse." 

In essence, the BON argued that this nurse was acting "in the role as a nurse” and that the “workplace” extended beyond "the place where work is done.”  Here, a hospital parking lot.  Per the BON, "the act of driving into the parking lot with the intent of going to work constitutes the practice of nursing."

This position should send chills down the spine of each licensed nurse in Texas because if this position had been advanced successfully, a nurse would essentially always have to be concerned with whether they were acting in conformance to the BON’s rules even when they were not on shift or at the workplace.  Although the SOAH ALJ exercised a common sense approach in recommending that the matter be dismissed, this case underscores how the BON continues to take bold liberties and aggressive positions under the guise of protecting the public safety.

Although the above-referenced case occurred in a hospital parking lot and the nurse had not yet started her shift, the firm has represented clients where the time and place of the alleged misconduct was even more tenuous.  This is illustrated in a case we handled involving a nurse on the way to work wearing scrubs and being pulled over for alleged speeding by law enforcement.  In this situation the nurse disputed the officer’s account of speeding and let the officer know that fact.  The officer took exception that his authority had been questioned and proceeded to file a complaint with the BON.  In turn, the BON then began to pursue disciplinary action against the nurse upon similar grounds in the case above arguing that this was unprofessional conduct and that the nurse, because she was wearing scrubs, was acting "in the role of a nurse.” 

Conclusion.

These types of cases tells us that the BON will not flinch in pursuing action based upon the belief that a nurse is always acting "in the role of a nurse” even if he or she is involved in conduct away from the workplace setting that would not normally be under the jurisdiction of the BON to oversee or discipline.  If you are a nurse, think about this premise that the BON is trying to advance the next time you are with someone at a restaurant, at the store buying groceries, in a social setting, or at your home, and a casual disagreement ensues.  We think you might agree with us that although protecting the public safety is just,  the ends do not always justify the means.

May 13, 2012

Nothing Ventured Nothing Gained

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“Nothing Ventured, Nothing Gained.”   This proverb, dating back to Chaucer ( c. 1374), means that you cannot get anywhere unless you are willing to take a risk.  In my line of work defending professional licensees, this idiom holds true, excercising of course a great deal of measure, careful reflection, and purposeful scrutiny.  This proverb proved none more true than in relation to several such recent cases that we successfully defended before the Texas Board of Nursing.  Success in these cases is always measured by achieving the best possible outcome for the client.  

In one case, the client, a home health nurse, was found in an untenable situation dealing with a former home health agency that had employed this nurse and had operated, for some period of time, in a less than aboveboard manner.  The violations involved allegations that the client had failed to perform skilled nursing visits for several patients and that the client had submitted documentation of visits after another nurse had submitted documentation for the same visits.

Although the client and the firm raised valid explanation and points regarding the allegation of failure to perform skilled nursing visits which resulted in dismissal of these allegations, allegations remained that the client had submitted documentation after the fact that mirrored the nursing notes another nurse had already submitted.  Pursuant to the Board’s position, this was a willful “falsification” of documents.  In these types of cases, if a nurse’s truthfulness is in question, the nurse’s veracity, or lack thereof, is viewed rather skeptically by the Board. 

Because of the defenses raised, including a showing that the intent element in the falsification charge was absent, and mitigation shown, the Board proposed discipline short of revocation, but still proposed discipline restricting the client.  Because the client was a home health nurse, the Board’s standard protocol is to prohibit or ban a nurse from working as a home health nurse for a specified period of time.  Our attempts to persuade the Board staff during negotiations that this prohibition was not justified was met with little success largely because the Board staff generally operates as creatures of habit and would not relent from this stance.  Because the Board could, it chose to end negotiations and instead, filed public, formal charges in this matter, setting this for consideration before an administrative law judge at the State Office of Administrative Hearings ("SOAH").

The practice of limiting a nurse’s ability to perform home health is born out of the rationale that home health patients are the most vulnerable given the relatively structure free constraints of home health nursing and the complete reliance of patients upon the home health nurse.  Such rationale, which we do not disagree with, however, does not delineate between those violations involving home health nurses who either completely abandon and/or fail to visit patients from those violations involving home health nurses that may be in violation of lesser charges such documentation errors or other less serious concerns.

After weighing the risks, and after consultation with the firm, the client decided to reject the Board’s proposed disciplinary offer which included unworkable stipulations and restrictions, including the prohibition against home health.  The client, instead, elected to take this matter to a contested case hearing at the SOAH.  We recognized that a one size fits all stipulation that barred all home health nurses from practicing in the area of home health nurse if there were violations was not supportable based on the facts of our case, our interpretation of the Nursing Practice Act, and applicable Board rules, including mitigating factors.  The client accepted that fighting the Board would add costs, time, angst, and stress.  However, when measured against the prohibition against doing home health nursing, which would effectively end a career given the client’s age, tenure, and professional standing, the client agreed that this risk was worth the venture.  Not soon after engaging the Board in discovery, preparing witnesses, and preparing the matter for a contested hearing, we were able to resolve this matter without a hearing, but more importantly, with the client prevailing on central issues—the removal of several stipulations including being allowed to practice home health. 

Upon reflection, this case strikes at the very heart of the axiom that in order to gain something very important, one had to be willing to take a risk.  Not many clients would have been able to make the difficult decision to keep fighting for what was truly right.  At the time, taking the Board’s initial proposed disciplinary order may have been the easier choice.  However, in the end, rejecting that initial proposed order made all the difference.  Should you find yourself in a similar situation contemplating whether to accept a proposed Board disciplinary order, I would strongly urge you to contact counsel prior to deciding your next step.  At the very least, your visit with counsel will allow you to go over your options and determine whether there is a basis to reject the order or to negotiate more favorable terms.

Mar 28, 2012

Texas State Board of Dental Examiners Update - Executive Director Steps Down

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Having served previously as the General Counsel for the Texas State Board of Dental Examiners ("TSBDE"), I was not surprised to learn that there are many within the dental community who remain critical of the TSBDE, its enforcement practices, and its policies; many of which are highly controversial.   If one goes back and examines the history of the TSBDE, it is an agency that has been plagued by sharp criticism from the public, lawmakers, and those that it regulates.  It is an agency that has been shut down/closed for a period of time by the Texas Legislature for underperformance or, frankly, lack of performance.  As a side note, this occurred prior to my tenure as an in-house attorney at the TSBDE. 

Given the TSBDE’s history and its ongoing concerns, much of which I experience currently in private practice representing clients before the TSBDE, it appears that the TSBDE continues to repeat its past and it continues to live each day and each fiscal year similar to the film Groundhog Day; the premise has the film's star, Bill Murray, repeating the same day over and over again.  With this as the backdrop, it was not much of a surprise to learn that the TSBDE’s Executive Director, Ms. Sherri Meek (formerly Sherri Sanders) had resigned earlier this month.  Officially, Ms. Meek’s resignation takes effect on August 31, 2012.  The current acting E.D. is Glenn Parker, the former Executive Director of the Texas Board of Chiropractic Examiners.  Although the official reason provided by Ms. Meek was for “personal reasons,” the timing is curious given that on April 11, 2012, at 10:30 A.M., the TSBDE staff is scheduled to appear before lawmakers to address ongoing issues and concerns with the TSBDE.

It is expected that the hearing, which has been scheduled to illicit testimony about health registries maintained by the state, will also include a forum for legislators to address the concerns of the TSBDE and some of its practices and policies.  One of the most highly controversial issues, arising well after I left, allows Board members to act as expert witnesses in disciplinary cases involving dentists.  Because Board members ultimately have the final say in terms of discipline, there is no denying that this is highly prejudicial to dentists who face disciplinary action.  When questioned on this topic, the TSBDE’s current General Counsel, Joy Sparks, provides, “[n]o board member has ever asked for permission to serve as an expert.”  TSBDE counsel further explains that she “would have absolutely no problem” with an outright ban on this policy. 

It appears that the hearing may likely be contentious as TSBDE opponents and adversary groups plan on appearing and speaking out against the TSBDE.  Ms. Meek, however, is not expected to attend the hearing since she is no longer serving in an official capacity as the TSBDE’s Executive Director.  Anyone with an interest before the TSBDE and how it disciplines its licensees should make an effort to attend since the hearing is open to the public.  The notice for the hearing can be found here.

Mar 13, 2012

The Temporary License Suspension Hearing: A Review of the Practices of the Texas State Board of Pharmacy in Its Ongoing Effort to Eradicate the Prescription Abuse Problem.

Image1 The Prescription Drug Abuse Problem.

The reality of living in 2012 in the State of Texas for a health care professional with prescriptive authority is that our state is currently mired in a growing prescription drug abuse problem.  Because of this growing epidemic, law enforcement (both federal and state) and regulatory agencies have devoted significant time and resources in efforts to wage a full-out assault to curb this issue.  There are no shortage of news reports or newspaper articles on this growing epidemic.  As an example, the firm recently linked to a story appearing in the Austin-American Stateman via our twitter page, “Texas readies a new weapon against ‘doctor shopping’ for prescription drugs.”

Potential Issues Facing Texas Pharmacists.

If you are a pharmacist who owns and/or operates an independent pharmacy with a practice that has or currently dispenses any measurable quantities of alprazalom, hydrocodone, carisoprodol, and/or or other combinations of controlled substances for patients who have or claim to have been treated by pain management clinics and/or pain management specialists in Texas, chances remain high that you may be the current subject of an investigation by several different state and federal agencies.  The end result is an exposure to criminal charges, the possible loss of your DEA/DPS certificate, and/or ultimately, the temporary or permanent loss of your pharmacy/pharmacist license(s).  If you fit these criteria  and also reside and practice in the greater Houston area, your chances grow even more exponentially because of the increased activity from law enforcement and regulatory authorities in this particular geographical area.

The TSBP and its Authority to Temporarily Suspend a Pharmacist and/or Pharmacy's License(s).

Like most health licensing boards, the Texas State Board of Pharmacy (TSBP) is vested with the ultimate statutory tool to safeguard the public interest, the temporary suspension of one’s license.  This is an extraordinary measure and usually licensing boards reserve this remedy for the most egregious of matters.   However, the recent trend at the TSBP is to use this measure as an offensive mechanism, forcing the pharmacist and pharmacy in a defensive posture from the onset.  The TSBP, usually after a protracted investigation with other agencies, has been pursuing pharmacists and pharmacies using this measure as a means to eliminate the prescription abuse problem.  Although notice and hearing are not required under the statute, the TSBP usually provides notice and a hearing before a three member panel of their executive Board consisting of two pharmacists and a public member.  These Board members are usually flanked at the hearing by the Board's General Counsel, a litigation attorney, and any number of potential witnesses.  The ability for a licensee faced with a temporary suspension hearing and one's ability to prepare and prepare effectively is made considerably more difficult given that one only receives approximately two weeks or less from the date of notice to the actual hearing.  This problem is exacerbated because little, if anything at all, regarding the type of evidence that the TSBP is prepared to produce is known in advance.

The Temporary License Suspension Process at the TSBP.

 

By statute, the temporary suspension is to determine whether the pharmacist and/or pharmacy’s continuation in practice would constitute a continuing threat to the public welfare.  However, this is far from what occurs at these hearings as the TSBP staff generally focuses on the underlying allegations and attempts to make its case regarding the underlying alleged violations.   In its petition, the TSBP generally has alleged a laundry list of allegations based on violations of several federal and state statutes as well as the Board’s own rules.   In essence, the TSBP staff will allege that a pharmacist/pharmacy, as required, failed to exercise sound professional judgment that a prescription is valid.  By statute, a pharmacist may not dispense a controlled substance if he or she knows or should have known that the prescription was issued without a valid patient-practitioner relationship.  See Texas Controlled Substances Act, TEX. HEALTH & SAFETY CODE § 481.074(a)(2).   Moreover, he or she “may not dispense a prescription drug” if he or she “knows or should have known that the prescription was issued on the basis of an Internet-based or telephonic consultation without a valid patient-practitioner relationship.”  See 22 TEX. ADMIN. CODE § 291.29.  

 

The crux of the issues will likely turn on the allegation of unprofessional conduct.  The TSBP defines “unprofessional conduct” to include dispensing a prescription drug order that is not issued for a legitimate medical purpose or in the usual course of professional practice, and dispensing a prescription drug while not acting in the usual course of professional pharmacy practice.  See 22 TAC § 281.7(2)(A) and (20).  In determining whether a pharmacist dispensed a prescription that was not issued for a legitimate medical purpose or in the usual course of professional practice, the TSBP can consider whether the pharmacist knew or reasonably should have known that the controlled substance or dangerous drug was not necessary or required for the patient’s valid medical needs or for a valid therapeutic purpose.  See 22 TAC § 281.7(2)(A)(ii).

Considerations in Defending Against the Temporary License Suspension Action.

The defense in these proceedings requires a careful examination of the pharmacist/pharmacy’s action/conduct relative to these requirements.  A pharmacist, if he or she is to be successful,  must provide sufficient evidence to demonstrate that he or she  made every reasonable effort.   Although simplistic in nature, these proceedings are extremely difficult as a whole because of the difficult standards that appear to continually shift depending upon the panel and the TSBP's staff changing tactics.  Although the three member panel should be impartial, it is more often the case that they give deference to the positions advanced by the TSBP staff.  It appears that there is  a pervasive belief that the pharmacist/pharmacy is part of a larger problem  based on the quantity of controlled prescriptions dispensed and the pharmacist/pharmacy’s association (whether official or not) to pain management clinics/practitioners.  This, unfortunately, tends to cause an unintended consequence to the pharmacist/pharmacy in guilt by association effect. 

Conclusion.

In any well-crafted defense, careful attention must be paid to the reasonable efforts taken by the pharmacist/pharmacy to ensure that the prescriptions have been issued for a legitimate medical purpose.  Admittedly, and in other cases that I have handled, these cases are challenging because the TSBP staff’s sole motivation is to shut down the practice of the pharmacist and pharmacy and they have made very little effort to hide their disdain for these pharmacists/pharmacies because the TSBP staff believes that the pharmacist/pharmacy is contributing to the problem of the “pill mill” perpetuated by those pain management clinics and/or practitioners.  Finally, and although the statute does provide for a mechanism to have this matter heard before an independent forum to the extent that a temporary suspension order is entered—an administrative law judge at the State Office of Administrative Hearings and/or a state district judge in state district court—these avenues are usually pursued after the TSBP panel has entered an order temporarily suspending the licenses of the pharmacist/pharmacy and from a tactical vantage, tis puts the TSBP in a very advantageous position procedurally.

Feb 10, 2012

Fighting Fire With Fire – A Closer Look at Additional Remedies Available to Licensees in Enforcement Proceedings with a Focus on the Texas Department of Licensing and Regulation.

The Hard-Line Approach Advanced by the Texas Department of Licensing and Regulation.The Texas Department of Licensing and Regulation ("TDLR"), in the past few years and as an ongoing concern, continues to wage a very aggressive, hard line approach in its concerted efforts to curb and restrict various licensees/practice areas that it regulates.  Based on current cases on our courts' dockets and cases that our firm has handled, it appears that the TDLR has taken broad liberties in their reading and interpretation of statutory provisions and regulatory rules against licensees.  Hit hardest by this approach employed by the TDLR are those licensees in the so-called beauty industry; namely aestheticians, salon owners, cosmetologists, nail shop owners, and even cosmetology schools/colleges.  Currently, there are several pending matters between licensees and the TDLR in ongoing litigation in our courts.  A sample of the ongoing disputes in litigation includes whether eye brow threading/threaders are required to have a cosmetology license because this practice, according to the TDLR, is the practice of cosmetology.  In another example, the TDLR has taken the position that a stylist, who has been licensed as a cosmetologist, may not use a safety razor to remove hair from the face and/or neck of a client deeming this only within the purview of a barber.  What appears as novelty positions or attempts to further define a licensee’s practice are not so novel given the deleterious damage to reputation, loss of the ability to make a living, restrictions on one’s ability to practice, and even in certain cases, the ability to practice altogether.

The Declaratory Judgment Action.

Licensees  who believe that the TDLR has incorrectly misapplied the statute and/or rules that form the basis of disciplinary proceedings have additional remedies available to them.  These remedies, as with all other matters juxtaposed to the underlying disciplinary proceeding, must be explored carefully and thoughtfully as these remedies may not be appropriate in all cases.  These remedies come in the form of a declaratory judgment action based on two statutes that authorize such action:  (1) the Uniform Declaratory Judgment Act (“UDJA”); and (2) the Administrative Procedure Act ("APA").   

Under the UDJA, a Texas court “has the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.”  See TEX. CIV. PRAC. & REM CODE ANN. § 37.003(a) (Vernon 1997) (emphasis added).  The underlying effect of a declaratory judgment is the focus on the adjudication of disputed law and on telling the parties what their respective rights and duties are.  Under the Texas APA, a party is able to seek a declaratory judgment action concerning either or both the validity and /or the applicability of an administrative agency rule.  See  TEX. GOV’T CODE ANN § 2001.038 (Vernon 2000). 

The Firm's Recent Success in Defending a Cosmetology School Using This Remedy Against the TDLR.

The firm had occasion last year regarding a client it represented to file a declaratory judgment action based on both of these statutory provisions in state district court based on contemplated disciplinary action by the TDLR against the client.  The firm represented a cosmetology college/school who had received a Notice of Alleged Violation (“NOAV”) from the TDLR.  In essence the TDLR alleged that the firm’s client had improperly calculated tuition/fee reimbursement to students who had withdrawn from the college prior to completion of the scheduled courses.  Although the complaint was based on a single instance limited to one former student, the firm’s client had broad exposure as it, a college, routinely had/has numerous students withdrawing from school, and thus, is required to determine the correct tuition reimbursement to the extent applicable in each of these situations.  Given that the client had been in operation for several years, the exposure in terms of discipline faced by the client cannot be understated. 

The firm’s client, like most every other cosmetology school in the State of Texas, had based its refund calculation on its understanding and interpretation of the statute and applicable rules in effect for nearly twenty years.  Without reason or explanation to the client (or any other licensee), the TDLR determined that this method of determining  the tuition refund was improper and thus, grounds for disciplinary action that included a substantial monetary fine.  After consulting with the client, we determined that rather than accepting the proposed settlement (i.e., admission of wrongdoing through a public order and paying a monetary fine) as other similar colleges/licensees had done or going through the regular administrative route to the State Office of Adminstrative Hearings (“SOAH”), we chose to pursue a declaratory judgment action both under the UDJA and Texas APA in order to have the courts determine that the TDLR’s action and interpretation were improper and that several of its rules relating to tuition reimbursement were invalid on its face and thus, unenforceable.  As an additional consideration to protect our client, the firm also sought immediate injunctive relief to preserve the status quo of the parties and to prevent the TDLR from taking discipline against the client while the case was being considered in the court system. 

Shortly after we filed our declaratory judgment action with a request for injunctive relief, the Attorney General’s Office (who was representing the TDLR) responded to the suit and then proceeded to contact us and informed us that it was quietly dismissing all charges against the firm’s client and even agreed, in principal, to pay my client's attorneys fees which are authorized under the statue.  Although no official/unofficial explanation was provided, we believe that the TDLR was faced with the real possibility of having the courts strike down its position and invalidate some of its rules regarding tuition reimbursement that would not only affect cosmetology, but all other areas such as barbers, et al.  Perhaps the biggest conundrum the TDLR faced in light of our declaratory judgment action and the likely basis for their wanting to dismiss the case against the client would be what would happen to those licensees in which it had already entered disciplined on the grounds of statute ad/or rules that were later declared null and void.  These questions, for now, are academic in light of the dismissal of the underlying matter against the firm's client.

What Lessons Can be Learned.

The overall lesson here is that although atypical, time consuming (based on the tactics employed by the TDLR in filing jurisdictional pleas, and taking the matter on appeal to the Court of Appeals), and cost prohibitive in most cases, when the TDLR or any regulatory agency takes a heavy-handed approach in its interpretation of a statute and/or its rules and uses such interpretation to take disciplinary action, a declaratory judgment action may lie and be crucial in preserving the rights of licensees.  In other words, one must consider fighting fire (the TDLR’s action) with fire (a declaratory judgment action).

Note:  The author wishes to acknowledge that his use of the title was chosen with full acknowledgement and sensitivity to the fact that Texas is currently in the recesses of a record drought with 2011 seeing some devastating wildfires near our state’s capitol and throughout the reaches of our state.