Organization of the Texas Physician Assistant Board
The Texas Physician Assistant Board (“Board”) is an advisory board to the Texas State Board of Medical Examiners. The Board has 13 members who are appointed by the governor. It is made up of seven practicing physician assistants with at least five years of clinical experience, three physician members who supervise physician assistants, and three unlicensed (non-physician / non-physician assistant) public members. Members are appointed for staggered six-year terms. The Physician Assistant Licensing Act (Chapter 204, Tex. Occ. Code) prohibits any member from serving more than two consecutive full terms on the Board. One physician assistant licensee member is appointed by the governor as the presiding officer of the Board.
General Qualification and Disciplinary Powers of the Texas Physician Assistant Board
The Texas legislature has empowered the Board adopt rules to establishing licensing standards, licensing fees, license renewal dates, and to take disciplinary action. The Board also has the power to review and approve or reject each application for the issuance or renewal of a physician assistant license. In the disciplinary context, this means that the Board is responsible for revoking, denying, or suspending licenses and for disciplining licensed physician assistants.
Complaints Against Licensees and Investigative Powers
The Board maintains records regarding every complaint filed against its licensees. If a written complaint is filed against a licensee, the Board is required to notify the complainant and the licensee of the status on a regular basis until the complaint is resolved (unless such notification would jeopardize an investigation). A licensee can obtain information from the Board that the Board intends to offer into evidence in a contested hearing. However, this right is limited by a number of factors. For example, a licensee is not entitled to receive any information that is protected by privilege or restrictions based on a rule, statute, or legal precedent. Additionally, a licensee may not obtain (i) investigative reports; (ii) investigative memoranda; (iii) the identity of a complaining witness who will not be called to testify; (iv) attorney-client communications; (v) attorney work product, and other protected from disclosure under the Texas Rules of Civil Procedure or the Texas Rules of Evidence.
Disclosure / Protection of Complaint Information – Prospective Employers
The Physician Assistant Practice Act provides that health care entities may obtain information regarding complaints filed against a license holder that were resolved via agreed settlement or a disciplinary order of the Board. They are also entitled to request the current status and basis of any complaint that is under active investigation. Accordingly, licensees need to be cautious both when entering either an agreed order and when deciding to fight a case to conclusion. Investigative information may also be disclosed to licensing authorities in other states (if a licensee has applied for licensure in such state). Peer review committees may similarly obtain information if a licensee is applying for privileges or the committee is reviewing the qualifications of the license holder with respect to retaining privileges.
Broad Disciplinary Power of the Texas Board of Physician Assistants
If the Board determines that an applicant or license holder engaged in fraud, misrepresentation, a violation of certain laws, or in conduct that indicates a lack of fitness, it can take action against that person’s physician assistant license. These penalties and sanctions include administering a public reprimand on the “light” end of the spectrum to denying a renewal or revoking a current licensee’s license for more serious infractions. The Physician Assistant Licensing Act gives the Board broad power to impose penalties and sanctions, and the Board may order a licensee to submit to counseling or treatment, suspend, limit, or restrict a license (such as excluding a practice area), require periodic Board review of a license, assess administrative penalties (money penalties), and order public service.
Primary Areas of Concern under the Physician Assistant Practice Act
When the legislature drafted the Physician Assistant Practice Act, it specifically addressed three categories of licensee conduct as problematic. These areas include (i) fraud and misrepresentation; (ii) conduct related to a violation of the law; and (iii) conduct indicating a lack of fitness to practice. Any practitioner should be both cautious and aware of these areas. Any situation where the legislature specifically addresses prohibited conduct will be an area of concern likely to catch the attention of a Board prosecutor.
Fraud and Misrepresentation
A licensee violates the Physician Assistant Licensing Act if he or she attempts to obtain a license through misrepresentation, deceptively uses a license, falsely reports that he or she is a physician, acts in a “dishonorable manner that is likely to deceive” the public, fraudulently alters a license, aids or abets a person in the unlicensed practice of a physician assistant, or advertises in a false or misleading manner. The Physician Assistant Licensing Act is quite broad in what it considers fraud and misrepresentation, and it is easier than it would initially appear to end up triggering liability under this provision. For example, the simple act of incorrectly answering a criminal history question on an application can result in action against a physician assistant’s license.
Felonies, Misdemeanors, and Violations of Other Laws
A licensee who violates a number of Texas laws can find himself or herself being disciplined by the Board. While some of these laws are obvious (such as violation of the Physician Assistant Licensing Act and the Board’s rules), some are not. The conviction of any felony will trigger administrative penalties and sanctions. However a licensee who receives deferred adjudication or who enters into a pretrial diversion program (which happens in many plea agreements) on a felony charge can be disciplined as well. Further, any violation of Texas law that “is connected with the practice as a physician assistant” (meaning any misdemeanor or a felony) can result in disciplinary action. Disciplinary action can also result from less than diligent record-keeping, such as failing to keep complete and accurate records of the purchase and disposal of drugs.
Conduct Indicating Lack of Fitness
Conduct indicating a lack of fitness to practice as a physician assistant frequently results in Board action against a person’s license. Drug or alcohol abuse, acts of “moral turpitude,” sexual abuse or exploitation of another through practice as a physician assistant, writing fraudulent prescriptions, and multiple “meritorious” liability claims all fall within this category. At the same time, a “lack of fitness” can also include being adjudged incompetent or having a physical or mental condition that prohibits safe practice in the judgment of the Board. Peer reviews that result in disciplinary action (such as removal, suspension, or limitation of privileges) is also considered conduct indicating a lack of fitness. A lack of fitness is a broad brush for a prosecutor, and the Board’s ability to take action against a physician assistant’s license in this category is initially limited only by the discretion of the prosecutor.
Criminal Convictions and Consequences to Licensees
Like other licensing bodies, the Texas Physician Assistant Board adopts rules and guidelines regarding criminal convictions for licensees and prospective licensees. Prospective licensees are required to submit fingerprints that are run through both a Department of Public Safety and Federal Bureau of Investigations criminal history background check. Past criminal convictions, even those that occurred long ago, can have a significant effect on the ability of a person to become licensed as a physician assistant.
Unsurprisingly, a licensee who becomes incarcerated, regardless of the offense, will have his or her license suspended for the term of the incarceration. While this suspension is automatic and is not a revocation, incarceration will typically accompany charges that will result in further Board action against a physician assistant’s license. Accordingly, an incarceration-based suspension should never be viewed as the only action that will be taken against that licensee.
Temporary Suspension Proceedings.
The Board may temporarily suspend a licensee’s license under certain circumstances. In order to temporarily suspend a license, the presiding officer may appoint a three-member disciplinary panel of Board members. The disciplinary panel determines whether a physician assistant’s license to practice should be temporarily suspended. The only issue in a temporary suspension hearing is whether or not the evidence presented to the disciplinary panel is sufficient to demonstrate that the physician assistant’s continued practice would constitute a continuing threat to public welfare. Unlike other disciplinary action, a temporary suspension may take place without notice or hearing.
Informal Settlement Proceedings
Certain complaints against physician assistants may be resolve through informal settlement. While less formal than hearing at the State Office of Administrative Hearings, informal settlement proceedings are subject to specific timelines and rules under the Physician Assistant Licensing Act. In these proceedings, a meeting typically occurs within 180 days after a complaint is filed. At the meeting, both the complainant and the physician assistant are entitled to speak and present. Both the Board’s legal counsel and the physician assistant’s legal counsel may be present at the meeting. A member of the Texas Medical Board’s staff may also appear and present to the Board facts it intends to prove at a formal hearing. A licensee is entitled to reply to the staff’s presentation and present facts it believes it could prove by competent evidence at a formal hearing. After the meeting, a Board representative may either (i) recommend the investigation be closed; or (ii) attempt to mediate disputed matters and make a recommendation regarding the disposition of the case.
At the end of a meeting, the panel may either recommend dismissal of the complaint or, if the panel determines that a violation has occurred, recommend Board action and the terms of an informal settlement. These recommendations must be made in the form of a written order, which is then delivered to the licensee’s authorized representative. The licensee may accept the proposed settlement (within the applicable timeframe) or reject it. If the licensee rejects the proposed settlement or fails to act within the required time, the matter proceeds to a formal hearing before the State Office of Administrative Hearings.
If a you receive notice of potential action against your license, the best thing you can do next is retain an experienced attorney. Time is one of the most valuable assets in any legal proceeding. Thus, if the Texas Physician Assistant Board is threatening your license, you need to contact experienced attorneys immediately. Do not waste time thinking you can handle it yourself. As experienced and skilled as you may be as a physician assistant, you have neither the time nor the training to defend your license against an experienced prosecutor. At The Walters Firm, we have spent over a decade honing our legal skills to protect licensees. Let us show you what we can do for you – (512) 236-1114.