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Texas Physician Assistant Board Disciplinary Process

As physician assistants (PAs) continue to take pressure off of an overstressed healthcare system, they will undoubtedly face stricter regulation and more attentive governmental oversight. This oversight will continue to be the primary responsibility of the Texas Physician Assistant Board (TPAB or the PA Board). Understandably, due to the close practice relationship between doctors and physician assistants, the PA Board is co-located with and shares the staff and resources of the Texas Medical Board (TMB) headquartered in Austin. The legislative and societal compromises to address tort reform in Texas have led to tougher regulation of healthcare professions including PAs. With the TMB taking an increasingly hard line approach to physician regulation, PAs can expect to be dealing with the PA Board on disciplinary matters much more often as well. PAs need to be prepared for the possibility of a complaint, an investigation, and enforcement proceedings.

Where do complaints about PAs come from? As with physicians and other health care providers, complaints come from all over. Complaints can be made anonymously and are certainly pursued if there is enough information in the complaint submitted. Other sources of complaints include competitors, colleagues, other health care providers, disgruntled employees, former employees, insurance companies, law enforcement agencies, other state agencies, ex-spouses, and of course patients and family members of patients. It is important to note that complainants’ names are kept confidential from the subject PAs unless the complainant waives this confidentiality or chooses to show up at certain proceedings. This confidentiality is not unique in the acupuncture regulatory arena, but is true for many other professions including physicians and physician assistants.

As with the Texas State Board of Acupuncture Examiners which is also under the TMB umbrella, the procedures and governing law for handling PA complaints and enforcing the law are patterned after those of the Texas Medical Board. Below is a synopsis of the process. It should be taken into consideration that there are quite a few variations and hybrids that can occur. What follows are general summaries of the stages of the disciplinary process. There are many aspects of a case that depend on specific details and many more aspects involved in the legal process that can’t be easily included here. Most PAs will need or want to seek experienced and specialized legal counsel to get a better understanding of the process and to get the best possible outcome. Even so, hopefully these summaries will help put PA disciplinary proceedings into an understandable context.

Inquiry/Preliminary Investigation:

The disciplinary process typically starts out with a very basic letter to the licensee generally stating that an allegation has been made and that there is a possible violation of the Physician Assistant Licensing Act or agency rule. This letter is a “preliminary” investigation letter, and usually comes from the Director of Enforcement of the Medical Board who functions in the same role for the PA Board. This correspondence is sometimes referred to as an “inquiry letter” and it indicates that a complaint has been made and demands response within 14 days. The letter will state the specific date the response is due. If the date falls on a weekend or state holiday, the deadline becomes the following regular business day. No extensions of this deadline are granted. Regardless of the response, an official full-blown investigation is likely to be opened. If no response is provided, opening of a formal investigation can be expected. Responding is important to show respect for the process and to get the other side of the matter set out for the regulators. Besides the short deadline, another problem is that the preliminary investigation letter is usually extremely vague making a specific response difficult if not impossible. An experienced attorney can sometimes work through agency staff to a more detailed explanation, but many times a response must be made with very little to go on.

Investigation:

After the licensee has responded to or ignored the preliminary investigation letter (which is a bad idea), an official investigation is initiated. The licensee (and their attorney if one has been hired for the preliminary response) will receive a notice of investigation with the name and contact information of the assigned field investigator who could be physically located anywhere in the state. Most of these investigators have nursing or other health care backgrounds. This letter asks for a narrative explanation to allegations that are still very general. A narrative is requested even if one was provided in response to the initial correspondence. A second narrative is not required, but can sometimes be useful if more information has been obtained to help in the response. The official investigation notice letter also contains a two-page practice questionnaire for completion and return. A blank records affidavit is provided for completion and attaching to any pertinent medical records that the licensee chooses to provide. A PA can expect that they have two to three weeks to get this information in. The deadline is specified in the investigation letter, but can be extended if steps to do so are taken without delay. The field investigator can exercise some independent authority to grant an extension. It is probably best advised to have a lawyer arrange for the extension rather than talking to the investigator personally. While the investigator can provide you more detail and grant an extension, some people have a tendency to say too much. Anything you say can be used against you. The investigator has the primary responsibility of gathering information in an effort to protect the public. The licensee’s needs and concerns are a secondary concern, but do not outweigh the investigator’s primary duty.

A licensee may sometime receive correspondence from the Director of Enforcement and the field investigator asking for the same information, issuing a subpoena, and setting inconsistent response deadlines. This is a result of “form practice” where the agency personnel are not able to track what the other staff member is doing. A call to the investigator can usually clear this up and consolidate the requests and the deadline.

Responding to a preliminary investigation letter and the official investigation letter should not be done casually or in haste. Once sent, the responses cannot be taken back. If a licensee writes an angry response, says something that is ill-advised, misstates facts, or admits to misconduct, this paperwork is likely to come back to cause problems. Letting the correspondence sit at the bottom of your inbox is not a good idea, but rushing out a poorly thought out response can be just as big a mistake. Common advice is to get to experienced counsel as quickly as possible. A PA should check to see if the investigation has triggered mandatory reporting to malpractice carriers or anyone else with whom they do business. Great care should be taken in filling out paperwork that might ask about an investigation and its status. Inaccurate answers can lead to allegations of fraud, unprofessional conduct, and, in some instances, perjury.

Informal Settlement/Show Compliance Conference

Once the first few sets of documents have been exchanged, the investigation could become dormant for quite some time. It may be weeks or months before there is further activity. Licensees under investigation and complainants are periodically notified by form letters that the investigation is ongoing. Sometimes they are contacted for additional information or asked to respond in writing to expert reports obtained by the agency.

If during the course of the investigation a determination is made that no violation has occurred, the agency staff can route the matter for dismissal. If dismissed by the PA Board, the licensee will be notified by mail. If there appears to be a violation, the licensee will eventually be notified in writing that in approximately 30 days an informal settlement/show compliance conference (ISC) will be taking place. Sometimes a short letter is received giving more advanced notice and sometimes that letter contains an expert report and another opportunity to respond. At a minimum, a PA under investigation will at some point get a notice letter that confirms the time and date, specifies the allegations, explains the process, and contains a computer disk with most of the relevant documents on it. If a change of the date is needed due to a conflict, the licensee must act within 5 days to have the best chance of complying with internal agency requirements for rescheduling. Also, there are strict time lines for submitting written materials for consideration at this meeting.

Most often, the licensee will have to travel to Austin to meet with Board representatives on a two to three person panel which will always include a public member and a PA from the PA Board. At times, a physician may serve on the panel. The panel members should have reviewed the materials well in advance. These representatives have an advising attorney to help guide them, and an agency staff attorney is also on hand to present the allegations. The licensee and any accompanying lawyer have a chance to address the allegations in what can be a collegial discussion or a rather intimidating interrogation. Much depends on the allegations and the personalities of those involved. These meetings are confidential, but the complainant can show up to give a statement and then leave the room. The complainant can also just submit a written statement and waive their right to remain unknown.

These meetings usually run about an hour long. They involve an exchange of information, questions, answers, and discussions about the details of the case. After this discussion, the licensee and counsel are excused from the room while the panel members deliberate. After deliberation, the panel calls everyone back into the room and a recommendation is announced. The recommendation can be to dismiss. If so, the file goes through additional internal review before the dismissal is finalized. The panel could also decide to defer action to get more information. If they have ongoing concerns about patient safety, they can refer the matter to a temporary suspension hearing. If they don’t think it’s urgent, but don’t know how to resolve the case, they can refer it to SOAH for a contested hearing. The most common result is recommendation of entry into an agreed order of discipline. Most cases are resolved either by an agreed order or dismissal. The basic terms of the disciplinary action are announced and the staff attorney corresponds later with a written document for consideration and execution. An experienced attorney can frequently negotiate the best possible language. Disciplinary action can range from a fine to revocation of license and everything in between and in multiple combinations (i.e., fine and a reprimand, continuing education, Chart monitoring, drug testing, inpatient treatment, practice restrictions, etc.)

If dismissal is finally approved, the licensee will receive a notice letter which can be shown to others to prove the case was dismissed. If dismissal is rejected, another ISC may be held or staff may be directed to make an offer for an agreed order. If action is deferred, more information is gathered and a recommendation is rendered after it has been considered. If an agreed order is recommended, findings of fact and conclusions of law are worked out in writing along with the terms of discipline. The PA is required to sign and have the order notarized and returned to staff. The full Board considers and approves such orders at its next meeting. Sometimes orders are rejected and other terms offered or another ISC is required. If the ISC panel can’t figure the case out or the licensee rejects any proposed agreed order, the case is referred to SOAH for a full contested hearing. If the ISC panel believes that the licensee is a danger to patients, a temporary suspension hearing may be convened.

Temporary Suspension Hearings

Although it happens rarely, if a PA is thought to pose a “continuing threat to the public welfare,” they can be subject to an expedited process that may result in a temporary suspension of their license. The process can vary and the temporary action can be imposed without notice or hearing if the case is serious enough. Thereafter, the PA must fight an uphill battle through the agency and SOAH to have the matter litigated to conclusion while suspended and without practice income. Usually, a PA is given advance notice and is permitted to come alone or with counsel to a temporary suspension hearing before a panel of three Acupuncture Board members. Rules of evidence are relaxed and while it is a formal hearing following the expected format of most trials or hearings, the panel has some latitude in how to best proceed. If not suspended, the case goes through the regular investigation channels and possible scenarios for resolution. If suspended, an agreement can sometimes be worked out, and if not, the licensee must litigate at SOAH or seek appropriate relief from the Travis County District Court. Oftentimes, the only option is a contested SOAH hearing while remaining suspended until another more final decision is reached.

Contested Hearings

If in any case an ISC does not lead to a satisfactory conclusion or a licensee is temporarily suspended with no chance of an agreed resolution, the case goes to the State Office of Administrative Hearings (SOAH). A formal public complaint is filed with detailed allegations and legal citations. The licensee has a short time to answer or risk a default judgment. Discovery is initiated much like in a malpractice suit or other civil litigation to include depositions, interrogatories, requests for production of documents, etc. While there is the possibility of being fined and assessed hearing costs, the case is really about whether 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 (ALJ) is assigned to the case and the proceeding is like a judge-alone trial without a jury. Witnesses are called to testify, records are put into evidence, and legal argument entertained. A transcript or recording is made. After the hearing, the ALJ may take weeks or months to issue a Proposal for Decision (PFD) analyzing the evidence and recommending a decision to the TMB. The doctor’s attorney and the agency staff attorney exchange exceptions and replies about the PFD – essentially objections and argument either for or against the PFD.

The full 9 member Board will eventually hold a hearing on the PFD in which the ALJ presents the PFD and counsel for both sides argue their positions. The Board may ask questions, review the pleadings and the record, and deliberate at length. When all is said and done, the Board either votes to adopt the PFD, adopt something different than the PFD, or dismiss the case even if the PFD recommends action. Dismissal at this stage is rare. The licensee usually becomes subject to unilateral disciplinary action, but does have a chance to meet some very short deadlines to ask for a rehearing, and if that is denied, to appeal the case in Travis County District Court. It is important to act quickly and follow the law carefully to preserve the right to appeal. Usually, all administrative remedies must be exhausted before the case goes to court. Appeals can go all the way to the Texas Supreme Court and conceivably through the federal court system depending on the issues. It is important to keep in mind that courts will typically not change an agency’s decision, but usually defer to the presumed expertise of the agency. If the courts disagree with the agency, they send the case back for reconsideration by the agency (reverse and remand) rather than make their own decision (reverse and render).

It should be noted that at just about any stage of the SOAH contested process, although usually very early on, the parties can agree to take the case off the contested docket to try to resolve it through mediation. This process is usually a day-long event with ALJs functioning as mediators in an effort to help the parties reach an agreement. If no agreement is reached, the case goes back on the contested docket and continues down the road to hearing.

Compliance

Once under an order of any kind from the PA Board, the licensee must cooperate with the agency’s Compliance Department. This department has compliance officers who function much like probation officers to check up on licensees to make sure they are living up to the terms of the order (i.e., drug screens, record keeping, chaperones, prescribing limitations, etc.). Probation appearances are called for and the licensee can also ask for modifications and early termination of the order. These proceedings are run very much like the ISC. Apparent violations of an order result in an ISC or a temporary suspension hearing and can also lead to SOAH hearings as well. Sometimes the order itself provides for additional disciplinary action if it is violated.

Reporting

Most disciplinary actions, with very limited exceptions, are reported to the public through the website and Texas Medical Board newsletter, other PA licensing boards, and the media at large through press releases.