Do’s and Don’ts of the TMB Application Process: How to Handle a Past Indiscretion

Physicians or physician assistants applying for – or renewing – their Texas medical license must disclose pending investigations or disciplinary actions by any licensing agency or healthcare entity, as well as criminal conduct. It may be tempting to gloss over a past indiscretion, especially if you feel the matter was resolved and had no reflection on your professional career, but honesty remains the best policy.

There are, however, best practices to consider when presenting the indiscretion to better protect your license and livelihood.

Are you concerned about how past activity or investigations may impact your professional license? Our healthcare attorneys have extensive experience representing providers before medical boards. Contact us to discuss your situation as soon as possible.

Should You Report Criminal Offenses Such as a DWI to the Texas Medical Board?

If you are a physician or physician assistant with an arrest or other criminal conduct that should be disclosed during the TMB application process, omitting, or mishandling the way you present a criminal history can have severe consequences.

TMB applications require truthful answers to Arrest and Criminal History questions such as:

• Have you ever been arrested?
• Have you ever been charged with any violation of the law regardless of the outcome? (you may exclude traffic tickets and violations with fines of $250 or less UNLESS the offense involved alcohol or drugs)
• Are you currently the subject of a criminal or grand jury investigation?
• Have you ever been placed on probation?
• Have you ever been granted deferred adjudication or any other pretrial diversion?
• Have you been convicted of an offense or imprisoned?
• Do you have convictions for Medicare, Medicaid, or insurance fraud?
• Have you been convicted of, or received deferred adjudication for, a violation relating to Texas Controlled Substances Act or intoxication or alcoholic beverages offenses?
• Do you have convictions for sexual or assaultive offenses?
• Have you been convicted of tax fraud or evasion?

Full and honest disclosure of all relevant circumstances and charges or convictions is vital, and failure to do so can be grounds for disciplinary action or license denial. TMB will run a fingerprint inquiry to uncover any criminal history with both the Texas Department of Public Safety and the FBI.

Excuses such as “I didn’t think it was on my record any longer” or “my conduct had nothing to do with my ability to practice medicine” will not save you from disciplinary action over an omission.

If you do need to answer yes to any question, you will have the opportunity to submit documentation and a statement (using TMB Form R), and you may potentially be asked to answer further questions from the board.

Because there are right and wrong ways to present a past indiscretion, it’s important that you prepare your response with the help of an attorney before it is time to make one.

Should You Disclose Disciplinary Actions Such as an Adverse Peer Review to the Texas Medical Board?

Yes. Any false or misleading statements in a license application – regarding professional conduct, licensing actions by another state or licensing authority, or otherwise – will be uncovered and are grounds for denial of your application and disciplinary actions.

The application will ask you to truthfully disclose any unusual circumstances related to your employment history, such as:

• Have you ever been placed on performance or quality improvement plan of any type for any reason?
• Were you ever issued a formal or informal warning, censure, or reprimand?
• Were additional limitations or requirements placed on you for any reason?
• Were you ever placed on disciplinary probation?
• Were your privileges or duties ever reduced, suspended, revoked, or denied?
• Were you ever terminated, dismissed, or was your resignation requested?
• Did you ever voluntarily resign in lieu of further investigations or other action?
• Are you currently under investigation by any governmental agency, health care entity, or professional organization?
• Have you ever had a complaint, allegation, or investigation result in the nonrenewal of contract?

If the answer to any of the above questions is “yes”, you are required to submit records and a statement (using TMB Form S or Form U). An attorney experienced with TMB reviews and professional license representation can review your circumstances and advise you on the best way to prepare your statement.

The Texas Medical Practice Act requires that peer review committees and healthcare entities report the results and circumstances of any medical peer review that:

• Adversely affects the clinical privileges of a physician for a period longer than 30 days
• Accepts a physician's surrender of clinical privileges either: (a) while the physician is under an investigation by the medical peer review committee relating to possible incompetence or improper professional conduct; or (b) in return for not conducting an investigation or proceeding relating to possible incompetence or improper professional conduct
• Adversely affects the membership of a physician in a professional society or association, if the medical peer review is conducted by that society or association

If you've experienced a peer review that meets these criteria, there will be a record of it. Always answer truthfully on licensing applications, and advisedly under the advice of experienced counsel.

What to Avoid During the TMB Application Process

TMB applicants can take steps to manage a criminal history appropriately and minimize blowback on their medical license and career.

What NOT to do:

1. Go it alone. The TMB takes criminal incidents and other professionalism issues very seriously, and it is in your best interests to have an experienced lawyer first review your case before submitting an application or response. An attorney can help evaluate your available options, explain what’s required of you, and steer you toward a favorable resolution.
2. Answer questions haphazardly, defensively, or deceivingly. How you answer renewal and application questions matters. Providers with a criminal history may answer in ways that prompt the board to take action on the answer itself, in addition to the underlying issue. This may happen when the board feels providers fail to accept responsibility for what happened or when answers bring a provider’s judgment, professionalism, or ability to provide sound medical care into question.
3. Conceal information. Hiding information is a major mistake. For one, it can deprive you of an opportunity to tender a favorable resolution, as the TMB and other licensing boards may be willing to strike a compromise on disciplinary action for providers who fully disclose criminal histories or choose not to take action at all for minor criminal incidents. Concealing a criminal history also looks bad in the eyes of the board and may constitute fraud or a violation of ethical standards that warrants punitive action.

What to DO:

1. Consult legal counsel. A knowledgeable healthcare attorney with experience representing providers before medical licensing boards can assess your situation and help you structure the most appropriate strategy for a response. Given the gravity of potential license repercussions, avoid soliciting the advice of friends, family, or criminal defense attorneys. Work with a lawyer who practices in this area of administrative law and has represented providers like you before your licensing board.
2. Remember that arrests and deferred adjudication count. You’re required to disclose information about a criminal incident even if the matter was diverted, deferred, or pardoned. For offenses that have been sealed or expunged, you should be prepared to provide a copy of the expungement or non-disclosure order if requested.
3. Be honest. Being truthful and transparent speaks volumes about a provider’s professionalism and creates opportunities for understanding and compromise. A full and honest disclosure, though potentially troublesome, is also preferred to the consequences that accompany omissions and lies. Remember, the TMB screens provider fingerprints with the Texas Department of Safety and the FBI – and WILL find out if you failed to disclose an arrest, charge, or conviction for a misdemeanor or felony offense.

Attorneys for Medical License Renewals & Applications

Hendershot Cowart P.C. fields a deep bench of healthcare attorneys who are knowledgeable in guiding medical professionals through the intricacies of licensure issues with the Texas Medical Board, Texas Board of Nursing, Texas State Board of Pharmacy, and more. We’re passionate about helping clients protect their rights, interests, and professional futures.

If you are looking to renew or apply for a medical license and have concerns about a past indiscretion, we’re available to discuss your situation and how we may be able to help. To speak with a lawyer, call (713) 909-7323 or contact us online.