First, Do No Harm: Responding to Texas Medical Board Investigations

by | Sep 2, 2020 | Government Investigations and Enforcement Actions

Each year, thousands of Texas physicians will receive that dreaded letter from the Texas Medical Board, advising them that a complaint has been made against them. Because the Texas Medical Board (the “Board”) has authority to impose a range of disciplinary actions—including revoking or suspending a physician’s medical license—it’s critical to take the initial complaint letter seriously and respond appropriately.

The initial complaint letter is an early stage in the Board’s investigation process to determine the merits of a complaint filed against you. The letter likely contains some vague statements alleging that you have violated the Texas Medical Practice Act, which is the statute that governs licensure, practice, and discipline of physicians in Texas. The letter will also request that you answer questions regarding those allegations within a certain time frame. While receiving a complaint letter can be stressful and frustrating, don’t shoot off an angry or off-the-cuff response. And don’t ignore the letter, either—it won’t just go away.

There are two things you should do immediately after receiving the initial complaint letter. First, contact your medical liability carrier. Many carriers offer coverage that will reimburse you for legal expenses, fines, and penalties associated with a Board disciplinary action. Second, contact an experienced attorney. The Board’s responsibility is to regulate the practice of medical and protect the public. The Board is not there to protect your rights. An attorney who is familiar with professional license defense can advocate for your best interests and will know how to navigate the complex Board rules and the Texas Medical Practice Act.

While each case is different, a Board investigation can involve several stages:

  • Preliminary Evaluation of a Complaint. The investigation begins with an initial complaint letter to the licensee stating that a complaint has been made and asking for a response by a specified date. If no response is submitted to the Board by the deadline, an investigation will likely be launched. If a response is submitted, the Board reviews the response and determines whether the Board has jurisdiction over the complaint and whether there is probable cause to justify further investigation. 22 Tex. Admin. Code § 178.5.
  • Official Investigation Phase. If an official investigation is opened, the licensee will be notified and asked to provide additional information. 22 Tex. Admin. Code § 178.6. Proceeding to the official investigation stage doesn’t mean a violation has occurred, and many official investigations result in dismissal of the complaint. But until the formal investigation stage, important tools (such as subpoenas for records) are not at the investigator’s disposal. Your counsel can advise you on how to comply with the Board’s requests without providing too much information.
  • Informal Settlement Conference. If there appears to be a violation of the Board rules or the Texas Medical Practice Act, then the licensee will be notified that the case is set for hearing, known as the Informal Settlement Conference (ISC). Generally, the ISC must be scheduled not later that the 180th day after the complaint has been filed. 22 Tex. Admin. Code § 178.7. The licensee will receive 45 days’ notice of the hearing date and be provided a statement of the allegations and a copy of all the information the Board intends to use at the ISC. 22 Tex. Admin. Code § 187.16. During the ISC, which the licensee and his or her counsel has a right to attend, the Board staff attorney will make a statement of the allegations against the licensee and the licensee will present a defense and answer questions from the ISC panel. The ISC will deliberate and then issue a recommendation:
    • dismiss the complaint or allegations;
    • if a violation has occurred, entry of an Agreed Order;
    • defer the ISC, pending further investigation;
    • direct that a formal Complaint be filed with the State Office of Administrative Hearings (SOAH);
    • recommendation to the President of the Board that a Disciplinary Panel be convened to consider the temporary suspension or restriction of the licensee’s license;
    • assess an administrative penalty; or
    • impose a remedial plan. 22 Tex. Admin. Code § 187.18.

  • Agreed Order Negotiations. If the ISC panel finds that the licensee has violated Board rules or the Medical Practice Act, they will recommend an Agreed Order, which is a disciplinary action. If the licensee agrees to the terms and conditions of the recommended Agreed Order, the case will be resolved. If the Agreed Order is not accepted, settlement negotiations with the Board staff attorney may continue to attempt to come up with terms the licensee will agree to. If an agreement cannot be reached, Board staff can then file a formal complaint at the SOAH and proceed to a formal contested hearing. 22 Tex. Admin. Code § 187.19.
  • SOAH Contested Case Hearing Process. A contested case hearing process is initiated when a Board attorney files a formal complaint at the SOAH that lays out the factual allegations and statutory violations that, if proven, constitute a violation of the Texas Medical Practice Act. SOAH is an independent state agency made up of administrative law judges (ALJ), whose sole job is to preside over contested case hearings for state agencies such as the Texas Medical Board. The case is heard by the ALJ, who subsequently will present a Proposal for Decision to the Board. The Board then issues an order that may include sanctions, or it may dismiss the case. Once the Board enters a final order, the licensee’s only recourse is an appeal to a Travis County District Court.

The Board investigation process is like a “big sieve,” with a majority of cases being dismissed. In 2007, according to the Texas Medical Association, the Board received about 6,800 complaints and completed around 2,400 investigations. Between 60-70% of those cases were dismissed. Around 500 cases went to informal settlement conferences, and the Board levied penalties in 300-350 of those cases. While a good outcome is possible, it is critical to engage counsel (and your insurer) early.

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