TMB or BON Complaint Filed Against You? Avoid These Two Risky Responses

If you are a medical professional who has received notice from the Texas Medical Board, Texas Board of Nursing (BON), or another health care licensing body, how you respond can have a dramatic impact on your ability to manage risk and avoid adverse outcomes.

The Texas Medical Board (TMB) has broad authority to regulate the practice of medicine in Texas and to govern its own proceedings. It also has the ability to impose sanctions against a provider’s license (including revocation) and refer cases to other agencies for further investigation.

Have you been contacted by the Texas BON or Texas Medical Board? Speak to a healthcare attorney immediately. Call (713) 909-7323 or contact us online.

While TMB and BON complaints demand that providers step up and seek legal counsel as soon as they’re notified, avoiding these two common mistakes can also make a difference:

#1 Don’t Respond in Anger

In professional administrative matters, the tone of your response matters. Remember:

• Respect the process. Licensing laws and disciplinary proceedings are designed to protect public safety, which is why there is a low threshold for complaints – does the allegation, if true, constitute a violation of the Medical Practice Act? TMB investigators and staff are fulfilling their duties to the public in their work and they resolve a number of complaints without disciplinary action every year. Respect them and the process in your response.

• Stick to the facts. If there are discrepancies or inaccuracies in a complainant’s version of events, they should be plainly refuted with facts and evidence and be absent of any bias, malice, or speculation. A provider’s factual statements and corroborating records are an effective counter regardless if complaints contain mistakes, severe distortions of truth, or lies. Well-maintained medical records will ensure you have the evidence to support your reply.
• Remain professional. Strong emotions and anger can impair our judgement and reflect poorly in professional settings. Not only can seeing red occlude one’s ability to identify workable solutions, it can also lead to actions or statements that reflect poorly on respondents – even to the point of eliciting harsher penalties.
• Don’t attack complainants. Expressing anger or attacking complainants, whether their identity is known or suspected, is unprofessional. Complainants have a legal right to submit complaints about the conduct of medical professionals, and respondents who interfere with or denigrate that right only hurt themselves.

Receiving a TMB complaint notice is bound to elicit an emotional response – you work hard to serve your patients and we live in a litigious society – but remember, your interests are best served by checking your emotions at the door. Zoom out, approach the situation with reason, and be willing to objectively examine your conduct.

With the early involvement of legal counsel, physicians, nurses, and other licensed providers can take matters step by step and explore options for favorable outcomes, such as non-disciplinary actions, informal agreements, or participation in programs for substance abuse or physical or mental impairment.

#2 Don’t Ignore It

Physicians, RNs, LVNs, and other licensed professionals who take a dismissive tone in response to board complaints don’t do themselves any favors. Just as with many medical ailments, ignoring complaints can allow problems to become worse or metastasize to other agencies and state or federal health care fraud investigations.

Some things to keep in mind:

• Deadlines. TMB proceedings have deadlines by which responses must be filed (typically 28 days for complaints). Ignoring a complaint for too long and missing deadlines could cause a provider to give up important procedural rights or have their case proceed to revocation by default.

• No defense. Respondents who ignore complaints miss opportunities to resolve them early and will be woefully unprepared should the TMB or other agencies decide to move forward. Without looking into allegations, it’s difficult to defend against them. Physicians should therefore take a front-footed approach: sometimes a simple factual explanation and documentation is all that’s required to resolve the matter or prevent escalation.
• Medical boards don’t like being ignored. Ignoring a TMB notice is unprofessional, counterproductive to garnering an early and favorable resolution, and may result in revocation by default. The Board may also interpret your lack of response as unwillingness to engage in productive dialogue or learn from mistakes, which may result in harsher penalties.

• Hinder options for diversionary programs. Providers who do nothing in response to a complaint may miss out on beneficial processes. This could be a non-disciplinary corrective action or a program that helps providers with substance abuse, mental health, or physical issues.
• Consulting an attorney too late. Perhaps the biggest problem with ignoring complaints would be that it prevents physicians from getting counsel early in the game, and it limits your options when you do get an attorney involved. Consulting an attorney upon notice of a complaint will position you to avoid mistakes, pursue best possible avenues for early resolution, and formulate an effective response.

The TMB Complaint Process: Steps to Take

Your response after receiving notice of a TMB complaint speaks volumes. A qualified attorney with experience in medical license defense can help, as can taking a few important steps:

• If you receive notice of a TMB complaint, take it seriously.
• Contact a law firm with proven health care and medical license defense experience. Our attorneys will notify and work with your malpractice insurer to coordinate your defense.
• Respond timely. The TMB deadline for a complaint response is 28 days.
• Provide documentation – the initial letter may request specific documents.

TMB complaint proceedings vary depending on the circumstances and allegations, but all physicians should know what to expect.

Generally, here are the steps in the TMB complaint process:

1. Complaint is evaluated. TMB reviews the complaint to determine: (1) if the complaint is jurisdictional (i.e., is the complaint against someone TMB licenses?); and (2) if there is enough information to indicate a potential violation of the Medical Practice Act. Providers may be contacted at this point to gather more information and have 28 days to make a response. Complaints that do not meet these two criteria are often dismissed without being formally filed.
2. Complaint is filed. Providers are notified by letter and the complaint is assigned to an investigator. If the complaint is strictly administrative and not related to standard of care, the licensee can opt out at this point by signing a non-disciplinary remedial plan (typically some form of continuing education).
3. Investigation is opened. The investigator sends another letter to the licensee; this time to request specific information. At this point, cases may be referred for dismissal or to a Quality Assurance (QA) panel, or the board may offer a non-disciplinary remedial plan.
4. Informal Settlement Conference. If the investigator believes a violation occurred, and the QA panel believes a restriction on the license may be warranted, the matter is referred to TMB’s legal division and an Informal Settlement Conference (ISC) is scheduled. The licensee is provided all the evidence the board will use at the informal hearing and given the opportunity to provide more information. At the hearing, the licensee may bring an attorney and present witnesses.
5. Negotiations for Agreed Order. At the conclusion of the ISC, the panel may recommend dismissal, a non-disciplinary remedial plan, or an Agreed Order that sets out sanctions and terms against the licensee. These orders range from restricting the licensee from performing certain procedures and rehabilitation programs to fines and even public reprimand. Licensees may negotiate or accept agreed orders. If an agreement can be reached, the matter is generally concluded.
6. State Office of Administrative Hearings (SOAH). If an agreed order cannot be reached, the matter is elevated to SOAH. This is the first public action in the case. The case is first mediated and, if the board and licensee still cannot agree on a resolution, a full trial is held, and a final order issued.
7. SOAH re-hearing and appeals. At this stage, the licensee can appeal to the board for a new hearing. Beyond this, appeals are handled within the state’s district court system.

Texas Board of Nursing Complaint Process: How To Respond

The Texas Board of Nursing fields over 16,000 complaints each year. Many are dismissed for insufficient information, jurisdictional issues, or because allegations, if true, don’t constitute a violation of the Nursing Practice Act (NPA).

When the Texas Board of Nursing decides to move forward with complaints, it provides due process by notifying nurses of the investigation and allegation, unless doing so jeopardizes an investigation. General steps in the BON complaint process include:

• Due Process. Nurses are notified of complaint and given an opportunity to respond and show compliance. The board obtains relevant evidence, usually by mail and phone.
• Investigations Team reviews the evidence, which may close a case, and either expunge all evidence immediately or after it is retained for a period of time per the Board’s policies. Closed cases may be reopened if additional evidence is received before the file is expunged.
• Order of the Board is issued. In cases where the board believes a sanction is needed to protect the public, board staff will issue an Order of the Board with requirements placed on nurses and imposed sanctions, such as warnings, fines, remedial education, suspension, probation, or revocation. Most Orders of the Board are public information.
• Negotiations for an Agreed Order. If nurses do not agree with the order, they may negotiate revisions and, if accepted, the revised order is approved.
• Informal Settlement Conference. In some cases, nurses may be invited to appear before an informal panel to review the evidence and discuss an acceptable resolution.
• Administrative Law Judge (ALJ) hearing. When cases do not reach a settlement through the informal process or nurses can’t be located, formal charges are filed, and written answers will be required. Nurses who don’t respond may have their license revoked by default. Nurses who do respond may continue to work toward settlements or proceed with disciplinary hearings before an Administrative Law Judge. An ALJ will submit a proposal for decision (PFD) to the Nursing Board, which may choose to close the case or impose penalties.

As with TMB complaints, Texas Board of Nursing complaints need to be handled properly. From the time nurses are notified, steps should be taken to avoid missteps and missed deadlines, and to prioritize engaged and professional participation in resolving the matter.

Consulting counsel as soon as you receive a complaint letter from Texas Board of Nursing can help you devise a tailored response strategy.

Experienced Texas Medical & Nursing License Defense Attorneys

Complaints to the Texas Medical Board, Texas Board of Nursing, or other professional licensing board are not to be taken lightly. These are serious matters with high stakes and demand a carefully prepared response.

Hendershot Cowart P.C. is a Houston-based health, administrative, and regulatory law practice with decades of experience counseling medical professionals in proceedings ranging from fraud investigations to medical license defense. Our attorneys are available to discuss your case and how we can help during a consultation.