Facing a federal investigation or being placed under arrest can trigger disciplinary action by your state medical licensing board as a licensed medical professional. In most cases, a conviction is not required in order for a state licensing board to take disciplinary measures. While a conviction can also mean fines, prison time, Medicare and Medicaid exclusion, and other penalties, since disciplinary actions involve a lesser burden of proof than federal cases, doctors facing any type of allegation must take their circumstances extremely seriously.
Medical Board Rules and Standards versus Federal Criminal Statutes
Let’s compare some of the prescription-related provisions of the Texas Medical Board’s Rules with the relevant provisions of the Controlled Substances Act to illustrate some of the differences between medical license revocation proceedings and federal criminal prosecutions. Under the Section 829 of the Controlled Substances Act:
“Except when dispensed directly by a practitioner, other than a pharmacist, to an ultimate user, no controlled substance in schedule II[, III, or IV], which is a prescription drug as determined under the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 301 et seq.], may be dispensed without [a] prescription. . . [and]
“No controlled substance in schedule V which is a drug may be distributed or dispensed other than for a medical purpose.”
Distributing or dispensing a controlled substance medication without a valid prescription carries the potential for tens, if not hundreds, of thousands of dollars in fines and years of federal imprisonment under Section 842 of the Controlled Substances Act.
When comparing the provisions of the Texas Medical Board’s Rules relating to prescription practices in Rule 190.8, we see that the practices that can subject a licensed professional to discipline are far broader. Under Rule 190.8, “[f]ailure to practice in an acceptable professional manner consistent with public health and welfare within the meaning of the Act includes, but is not limited to:
“(A) failure to treat a patient according to the generally accepted standard of care;
“(B) negligence in performing medical services;
“(C) failure to use proper diligence in one’s professional practice;
“(D) failure to safeguard against potential complications; . . . [and]
“(L) prescription of any dangerous drug or controlled substance without first establishing a valid practitioner-patient relationship [subject to certain limited exceptions.”
Under Rule 190.14, “revocation should be considered” for prescription-related violations that involve certain delineated “aggravating factors.” These factors include:
“(1) harm to one or more patients; (2) the severity of patient harm; (3) one or more violations that involve more than one patient; (4) economic harm to any individual or entity and the severity of such harm; (5) increased potential for harm to the public; (6) attempted concealment of the act constituting a violation; (7) intentional, premeditated, knowing, or grossly negligent act constituting a violation; (8) prior similar violations; (9) previous disciplinary action by the board, any government agency, peer review organization, or health care entity; (10) violation of a board order; [and,] (11) other relevant circumstances increasing the seriousness of the misconduct.”
Although these provisions are quotations from Texas’ rules governing medical practice, the rules governing physicians and other licensed practitioners in other states are similar.
As we can see, in order to be subject to disciplinary action, it is not necessary to engage in activities that rise to the level of a criminal offense. Thus, if allegations stemming from a criminal investigation get reported to a physician’s state licensing authority, it is entirely plausible that the physician could face loss of their license even if the investigation does not result in criminal prosecution and a conviction at trial.To illustrate some of the differences between medical license revocation proceedings and federal criminal prosecutions, let’s compare some of the prescription-related provisions of the Texas Medical Board’s Rules with the relevant provisions of the Controlled Substances Act. Under the Section 829 of the Controlled Substances Act:
“Except when dispensed directly by a practitioner, other than a pharmacist, to an ultimate user, no controlled substance in schedule II[, III, or IV], which is a prescription drug as determined under the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 301 et seq.], may be dispensed without [a] prescription. . . [and]
“No controlled substance in schedule V which is a drug may be distributed or dispensed other than for a medical purpose.”
Under Section 842 of the Controlled Substances Act, distributing or dispensing a controlled substance medication without a valid prescription carries the potential for tens, if not hundreds, of thousands of dollars in fines and years of federal imprisonment.
Now, if we compare the provisions of the Texas Medical Board’s Rules relating to prescription practices in Rule 190.8, we see that the practices that can subject a licensed professional to discipline are far broader. Under Rule 190.8, “[f]ailure to practice in an acceptable professional manner consistent with public health and welfare within the meaning of the Act includes, but is not limited to:
“(A) failure to treat a patient according to the generally accepted standard of care;
“(B) negligence in performing medical services;
“(C) failure to use proper diligence in one’s professional practice;
“(D) failure to safeguard against potential complications; . . . [and]
“(L) prescription of any dangerous drug or controlled substance without first establishing a valid practitioner-patient relationship [subject to certain limited exceptions.”
Under Rule 190.14, “revocation should be considered” for prescription-related violations that involve certain delineated “aggravating factors.” These factors include:
“(1) harm to one or more patients; (2) the severity of patient harm; (3) one or more violations that involve more than one patient; (4) economic harm to any individual or entity and the severity of such harm; (5) increased potential for harm to the public; (6) attempted concealment of the act constituting a violation; (7) intentional, premeditated, knowing, or grossly negligent act constituting a violation; (8) prior similar violations; (9) previous disciplinary action by the board, any government agency, peer review organization, or health care entity; (10) violation of a board order; [and,] (11) other relevant circumstances increasing the seriousness of the misconduct.”
While these provisions are quoted from Texas’ rules governing medical practice, the rules governing physicians and other licensed practitioners in other states are similar.
As you can see, in order to be subject to disciplinary action, it is not necessary to engage in activities that rise to the level of a criminal offense. As a result, if allegations stemming from a criminal investigation get reported to a physician’s state licensing authority, it is entirely possible that the physician could face loss of his or her license even if the investigation does not lead to a criminal prosecution and a conviction at trial.
Common Allegations Resulting in State Board Disciplinary Action, Including License Revocation
With these considerations in mind, there are a number of accusations that are criminal in nature that can lead to licensing action even if they do not end up resulting in a conviction. Some of the most common charges against physicians and other licensed medical professionals include:
- Anti–Kickback Statute Violations Offering, paying, soliciting, or receiving illegal remuneration in connection with referrals for federally reimbursed health care services is a violation of the federal Anti-Kickback Statute that can lead to civil or criminal charges and medical board disciplinary action.
- Assault and Sexual Abuse Allegations of assault and sexual abuse are extremely serious. Even if they do not lead to a criminal conviction or license revocation, they can ruin a doctor’s professional reputation if not addressed appropriately.
- Driving under the Influence (DUI) Although driving under the influence is a state-level offense, it can have consequences for health care providers that are on par with those of various federal healthcare-related crimes. A doctor who chooses to drive drunk may be seen as unfit to make decisions about his patients’ health and safety. And as a result, may be at risk of losing his or her medical license.
- Physician Certification Fraud For physicians whose patients enter home health or hospice care, certification practice presents a number of risks for licensing action and federal prosecution. Doctors accused of improperly certifying patients can face steep penalties, including license revocation.
- Practicing While Alcohol or Drug Impaired Seeing patients while under the influence of alcohol, sleep medications, illegal drugs, or other impairing substances can lead to legal and disciplinary action as well.
- Prescription Drug Fraud Prescription drug fraud, including selling prescriptions, writing prescriptions without a doctor-patient relationship, and other forms of drug diversion, can lead to criminal prosecution and medical license revocation.
- Medicare, Medicaid, and Tricare Fraud Double-billing, phantom billing, upcoding, unbundling, and other forms of federal health care benefit program fraud are all common allegations against physicians, pharmacists, and other providers.
Are You at Risk of Losing Your Medical License? Our Goal is to Help
If you are concerned that you could be at risk of losing your medical license, it is important that you engage experienced legal counsel immediately. We focus our practice on representing licensed health care providers, and we have a significant track record of defending physicians and other practitioners in administrative proceedings and federal court. To discuss your situation with us in confidence, call The Criminal Defense Firm at (214) 251-4238 or request a free consultation online today.
Brian Kuester offers his extensive experience to counsel companies and individuals under civil or criminal government investigation. When resolution requires litigation, clients choose Mr. Kuester’s proven court and litigation experience.