As a licensed physician in Texas, facing a Texas Medical Board (TMB) investigation can present significant risks. Depending on the allegations underlying the investigation, your medical license could be in jeopardy—and you could be at risk for other legal consequences as well.
Physicians targeted in TMB investigations must defend themselves by all means available. In doing so, they must focus not only on protecting their medical license (which is understandably a top priority), but also on avoiding miscues that could create problems in related medical malpractice litigation or enforcement proceedings. With the right approach, physicians can defend themselves effectively, but they must be prepared to work closely with their TMB investigation attorney through all stages of the process.
“The Texas Medical Board aggressively targets physicians who have been accused of failing to fulfill their professional and ethical responsibilities. To avoid unnecessary consequences, targeted physicians must take a strategic, proactive, and unrelenting approach to their defense.” – Dr. Nick Oberheiden, Founder and TMB Investigation Lawyer at Oberheiden P.C.
Too often, physicians who have been accused of malpractice or other forms of professional or ethical misconduct resign themselves to the Texas Medical Board’s authority. While the TMB does indeed have substantial authority to regulate the licensed practice of medicine in Texas, its authority is not absolute—and physicians can avoid unnecessary consequences by executing a strategic defense. With all that is at stake, physicians targeted in TMB investigations must not relent to the TMB’s investigative and disciplinary efforts, but instead take a proactive approach to protecting their ability to practice medicine in Texas.
What Texas Physicians Need to Know When Facing a TMB Investigation
When facing TMB investigations, Texas physicians need to make informed decisions based on the advice of counsel. Here are five more keys to executing an effective Texas Medical Board investigation defense:
1. Understanding Why the TMB Investigating
As soon as possible, licensed physicians targeted in TMB investigations should seek to discern why they are being targeted. This involves answering three distinct questions:
- What Triggered the TMB’s Investigation? A TMB investigation can have several possible triggers. These range from patient and family member complaints to allegations from Medicare auditors or private payors. Understanding what triggered the Texas Medical Board’s investigation is a critical first step toward building an effective defense.
- What are the Allegations at Issue? Determining what triggered the TMB’s investigation can also help with identifying the specific allegations at issue. Defending against medical malpractice allegations, billing fraud allegations, violations of the Texas physician health program, and the various other types of allegations that could potentially be at issue all require very different evidence and defense strategies.
- Are You Facing (or Could You Face) Other Legal Risks? If you are presently facing a medical malpractice lawsuit or a federal health care fraud investigation, this will likely (though not certainly) shed light on the reason for—and scope of—the TMB’s investigation. When facing a TMB investigation, it is vital to consider any other legal risks you are facing (or could be facing) as well. The statements you make and records you disclose during your TMB investigation could potentially come up in other proceedings, and it is important to make sure your TMB defense does not work against you in any other legal matters.
2. Understanding if You Are At Risk for Professional Discipline (Up To and Including License Revocation)
Once you know why you are under investigation, the next step is to assess your risk of facing professional discipline from the Texas Medical Board. In other words, you need to know if the TMB will be able to substantiate any allegations against you.
Numerous issues can lead to professional discipline under the Physicians Medical Practice Act. Some examples of issues frequently raised during TMB investigations and enforcement proceedings under the Medical Practice Act include:
- Billing and coding violations
- Criminal misconduct (including DUIs and other offenses unrelated to a physician’s medical practice)
- Discipline by another state medical licensing board
- Enforcement action by another state or federal authority
- Failure to meet continuing medical education (CME) requirements
- Failure to meet the requisite standard of care
- Improper (and unlawful) prescription practices
- Medical record-keeping violations
- Use of drugs or alcohol (or drug or alcohol impairment) while treating patients
- Sexual harassment, discrimination, and other forms of prohibited conduct
Again, these are just examples. When facing a theTMB investigations department, it is imperative not to make any assumptions about why your medical license may be in jeopardy. After discerning the scope of the TMB’s investigation, your next priority should be to review the relevant facts and all relevant documentation with your TMB investigation attorney to determine the strength of the TMB’s case.
3. Understanding What You Can Expect During the TMB’s Investigation
Texas Medical Board investigations typically follow a prescribed series of steps. Physicians have opportunities to defend themselves at each step; and, again, taking a proactive approach can significantly reduce the risk of facing license revocation (or other disciplinary action) as the result of a TMB inquiry. Generally, the major steps involved in a TMB investigation include:
- Initial Complaint Letter – The TMB typically informs physicians that they are under investigation by issuing an initial complaint letter. An effective response to this letter can potentially terminate the investigation before it begins in earnest, though physicians who receive these letters should generally expect to face further scrutiny.
- Formal Investigation – During its formal investigation, the TMB will seek to gather evidence through various means, including (but not limited to) reviewing the physician’s patient and billing records and seeking to interview the physician. This process can take up to 180 days in most cases. If it appears that the targeted physician’s continued practice could present a risk to public health, the TMB may also schedule a Temporary Suspension Hearing during this stage of the process.
- Informal Settlement Conference – After gathering as much evidence as possible, the TMB will typically schedule an informal settlement conference. This conference is similar to administrative hearings in that the TMB will present its allegations and then the physician will have the opportunity to present his or her arguments in defense. As the TMB explains, following the conference, “a case may be referred for dismissal to the board’s disciplinary process review committee (DPRC) or for further evaluation by a Quality Assurance (QA) Panel, consisting of up to five board representatives. Under certain conditions, a third option is to offer the licensee a remedial plan, such as participation in behavioral health programs, which is a corrective action taken by the board that is considered non-disciplinary.”
- Agreed Order or Formal Complaint – At this point, a TMB investigation can take one of two divergent paths: (i) the TMB and the physician can enter into negotiations regarding an Agreed Order that will resolve the physician’s investigation; or, (ii) the TMB can file a Formal Complaint with the State Office of Administrative Hearings (SOAH). The TMB may also attempt to negotiate an Agreed Order prior to filing with the SOAH.
- SOAH Mediation or Hearing – If the TMB files a Formal Complaint following a disciplinary investigation, the matter can either be scheduled for mediation or a hearing before the SOAH. Mediation is an informal procedure during which the TMB and the physician seek to work out an agreed resolution, while a SOAH hearing involves presenting evidence and arguments to an administrative law judge (ALJ) who will render a binding decision. Both options offer benefits and limitations, and targeted physicians will need to work closely with an experienced TMB investigation lawyer to choose the most advantageous path forward.
While these are the major steps in a TMB investigation, receiving an unfavorable decision from the SOAH is not necessarily the final stage in the process. Physicians have appeal rights under Texas law, and physicians can potentially appeal license suspensions and other disciplinary actions on several grounds.
4. Determining What Defenses You Can Use to Protect Your Medical License
Physicians targeted in Texas Medical Board investigations can assert defenses at each stage of the process; and, while it is possible (and sometimes necessary) to explore defense options as the TMB’s investigation progresses, it is generally advisable to formulate a cohesive defense strategy as soon as possible.
The specific defenses a physician can assert during a TMB investigation depend on both the relevant allegations and the relevant facts. For example, while physicians may be able to defend against allegations of improper billing by presenting medical records that demonstrate adequate medical necessity or justifiable coding decisions, defending against medical malpractice allegations requires a different approach entirely. The same is true when a physician is accused of practicing under the influence, with physical or mental impairment issues, or engaging in other forms of improper, illegal, or unethical conduct. To determine what defenses they can—and should—assert, targeted physicians will need to work closely with an experienced TMB investigation attorney.
5. Determining Your Next Steps
If you are facing a TMB investigation, the most pressing question you need to answer is, “What are your next steps?” The answer depends on the specific circumstances at hand; and, to ensure that you are making informed decisions with your long-term best interests in mind, you should make arrangements to speak with a TMB investigation lawyer as soon as possible. Depending on the circumstances at hand, necessary next steps may include (and may not be limited to):
Gathering Relevant Documentation
One of the first steps you will need to take is to gather relevant documentation. The documentation you will need to evaluate potential defenses and build your defense strategy depends on the nature of the allegations against you. Are you being accused of billing fraud? If so, your practice’s billing records and billing compliance program documentation will be key. Are you being accused of failing to meet the requisite standard of care? If so, then your decision-making support documentation for the patient interaction in question will be central to your defense.
Conducting a Further Investigation
In some cases, a further investigation will be necessary as well. For example, if a patient has filed a complaint alleging that your medical advice caused him or her harm, it may be worth hiring a private investigator to examine the patient’s activities. Is the patient accurately describing the effects of his or her condition? Or, are you the target of a medical malpractice fraud scam? Unfortunately, false accusations of malpractice are not uncommon; and, if you have been falsely accused, you need to make sure you have all of the evidence you need to avoid unwarranted consequences.
Preparing to Meet with Members of the TMB
As discussed above, a key step in many cases will be to meet with members of the Texas Medical Board—either in an informal settlement conference, in mediation, or both. If you will be meeting with members of the TMB as part of your case, it will be essential to ensure that you are thoroughly prepared.
Preparing for Your TMB Hearing
Thoroughly preparing for a TMB hearing is essential as well. This involves not only understanding what you can expect during the process, but ensuring that you are ready for whatever comes your way. To prepare for your hearing, you will need to work closely with your counsel to build your defense, anticipate potential questions, and formulate a comprehensive and cohesive strategy that is designed to protect your ability to practice medicine in Texas by all necessary and available means.
Contacting Your Medical Malpractice Insurer
If you are at risk of facing medical malpractice accusations in relation to your TMB case, you will want to get in touch with your medical malpractice insurer. You and your insurer will share a common interest in avoiding unnecessary liability, and your insurer’s agents and lawyers can work with your legal counsel on your defense as warranted.
Preparing to Defend Against Allegations Outside of Your TMB Hearing
From responding to civil allegations of medical malpractice to defending against allegations of Medicare fraud, Medicaid fraud, prescription drug fraud, and other federal crimes, physicians who are facing TMB hearings may need to protect themselves in various other legal proceedings as well. If you are facing legal risks outside of your TMB hearing, you will want to ensure that your defense counsel has the experience required to effectively defend you in these matters as well.
