Part I: What’s Going On? Handling Licensing Board Investigations from Complaint to SOAH Hearing

This is a four-part series on Handling Licensing Board Investigations from Complaint to SOAH Hearing. In preparation for this series, I talked to several of the staff attorneys and investigators for the Texas Medical Board, the Board of Nursing, and the Board of Chiropractic Examiners. I asked them what advice they would give lawyers practicing before their boards. Some of the suggestions throughout this series come from the staff attorneys and others come from trial and error on my part through years of representing clients before these boards.

The series will present issues associated with the phases of the investigation and resolution:

  1. Part I – What’s Going On?
  2. Part II – The Investigation
  3. Part III – The Informal Settlement Conference (ISC)
  4. Part IV – The SOAH Hearing

The purpose of this series is to give licensees and their attorneys a greater understanding of the complaint and investigation process. Of course, each board is different and each investigation is driven by the issues and personalities involved. Licensees and their attorneys are encouraged to understand the rules and processes applicable to the relevant board. Further materials about the complaint, investigation, and hearing process are available on board websites.

Part I of the series will help licensees and attorneys who are new to board investigations get their bearings and understand the rules and processes involved.

Phases of Licensing Board Complaints

Licensing board complaints and investigations usually follow two general phases. There’s the informal phase from the filing of the complaint to the informal settlement conference and agreed order. If a licensee chooses not to accept the board’s resolution, the practitioner can request a more formal hearing before the State Office of Administrative Hearings (SOAH).

The strategies of each phase are very different. In the informal phase, you deal with a panel of 3 members of the licensing board. There is no impartial third party like a judge. Licensing boards are not impartial. I’m not suggesting they are unfair, but they are not impartial. They have an obligation to police their licensees and hold them accountable. The panelists come into an Informal Settlement Conference (ISC) with the intent to serve that purpose. ISCs are much more like mediations where you have a dialogue with panelists and a staff attorney and try to convince them to dismiss the complaint or to minimize the scope and degree of the violation and penalty.

If you get to the more formal SOAH hearing, there will be an administrative law judge, but no jury. The judge is impartial, but depending on the board involved, has varying degrees of authority in the outcome of the matter. After the hearing (like a trial), the judge will make findings of fact and conclusions of law. Most boards do not have to accept those findings and conclusions. And all the boards have the flexibility to take disciplinary action despite the findings.

TMB Statistics

I’ll give you some context about the scope of licensing board complaints with a few statistics. These are statistics from the Texas Medical Board (TMB) only. I have not included other licensing boards.

There are roughly 9,000 complaints that are filed annually. If you do the math that translates to about 750 complaints per month, about 25 complaints each day. The TMB tells me that about 90% of these complaints are dismissed, either on jurisdictional issues or because they do not pass a preliminary evaluation. Roughly 10% of those complaints, or 900, continue beyond the preliminary evaluation phase and into a phase where the board is considering some type of sanction or penalty.

Those that continue are relatively significant matters. Many practitioners think that any complaint against them must be bogus and therefore all they need to do is tell the board their version of the events and it will all go away. I will no go away. The board has already determined that the allegation, if true, is significant enough for them to impose some kind of sanction. The complaint can still get dismissed, in this phase, but that is the exception rather than the rule.

Most of these 900 complaints are ultimately resolved by agreed order either before or after an informal settlement conference. The vast majority are resolved by agreed order. If they are not resolved by agreed order, then they proceed to the State Office of Administrative Hearings (SOAH) for trial.

Types of Violations

Before we dive into the different phases of a complaint, I want to give you an idea of the types of violations that the practitioners can find themselves facing.

It could be quality of care issues where the allegation is that the practitioner has violated the applicable standard of care. It could be impaired physician issues where the physician’s ability to practice is compromised by substance abuse.

The complaint could also allege business issues like over-billing, deceptive advertising, or breaches in confidentiality. Maybe they did not close the doors of their practice appropriately and face allegations of patient abandonment. Or perhaps the practitioner failed to provide required disclosures to their patients.

Licensing boards are seeing an increase in what’s called, "boundary cases.”These are situations in which the provider has crossed a professional line by attempting to engage in an inappropriate personal relationship with the patient. Pro-tip: Practitioners, do not friend your patients on Facebook. Nothing good will come of it.

Finally, in almost every case, there will be an allegation of unprofessional conduct, which is kind of a catch-all. It’s very broad and very common.

Disciplinary Actions and Outcomes

There is a slew of possible outcomes from a board investigation. The panel can recommend dismissal of the complaint at any stage. I have had complaints dismissed before and after Informal Settlement Conferences, but it is not common.

If disciplinary action is warranted, the board has several tools available. They can revoke or suspend a license. They can put the licensee on probation. They can impose monetary fines, continuing education, monitoring, and reporting. When an agreed order is proposed, the board will often recommend several of these options.

All agreed orders will impose continuing education which will include, at a minimum, a Texas jurisprudence course. Depending on the findings of the panel, they will also require topical subjects like medical decision-making, nursing judgment, documentation, supervision of mid-levels, or understanding board orders. These classes are available online and usually take 2-6 hours each to complete. The agreed order will give the licensee a time period to complete the courses, during which the licensee remains on probation. If continuing education is the only disciplinary action, then the probation ends when the courses are complete.

The agreed order might also require monitoring and reporting. The licensee is required to check in with a monitor at regular intervals. The monitor will then report to the board the status of the licensee’s progress. For example, for nurse practitioners under the supervision of a physician, the Board of Nursing may require the supervising physician to file certain quarterly performance assessments.

I’ll discuss the process of negotiating agreed orders in Part II – The Informal Process.

Once a panel makes its recommendation, the matter will be considered by the full board at its next quarterly meeting. Agreed orders are not final until approved by the entire board.

The licensing board will publish the outcome of the investigation in its quarterly newsletter and online. The disciplinary action will also be reported to the National Practitioner Data Bank.

Boards, Boards Everywhere

You might be surprised at the number of healthcare licensing boards in Texas. The boards everyone is familiar with are the Texas Medical Board (TMB), the Texas Board of Nursing (BON), the State Board of Dental Examiners (TSBDE), the Texas Board of Chiropractic Examiners (TBCE), the Texas Optometry Board (TOB) and the State Board of Pharmacy (TSBP). I find it interesting that each of these boards has a slightly different naming convention. I presume there are historical reasons for this. Each of these boards has a separate governing body and is granted rulemaking authority by the Texas legislature.

Some boards are grouped under executive councils. For example, the Executive Council of Physical and Occupational Therapy Examiners is made up of the Texas Board of Physical Therapy Examiners and the Texas Board of Occupational Therapy Examiners, each of which has its own governing board members. And there’s the Texas State Board of Professional Counselors, which is part of the Texas Behavioral Health Executive Council that regulates the behavioral health services and social work practice in Texas.

Last, but not least, there are additional boards that are subboards or advisory boards of the Texas Medical Board, like the Texas Physician Assistant Board, the Texas State Board of Acupuncture Examiners, and the Texas Board of Medical Radiologic Technology. These boards have a separate governing board, but they do not have independent rulemaking authority. Instead, they operate under the rules of the TMB.

As you can see, licensed healthcare providers are subject to the oversight of the board that issues their license. These boards have similar, but separate, rules for handling complaints and imposing disciplinary actions.

All of the board rules are published in Title 22 of the Texas Administrative Code, Examining Boards. Many of the rules also refer to the relevant statutory authority.

Texas Medical Board

Texas Nursing Board

Texas Board of Chiropractic Examiners

Texas State Board of Dental Examiners

Up Next: the Investigation

In Part II – The Investigation, I’ll review the board investigatory process and the discovery issues involved.