BAD NEWS FOR F5 APPEALS IN TEXAS

Posted on February 19, 2021 by admin

I recently had a peace officer client who was fired after a couple of days on the job. His employer was a small town police department with few employees. The chief gave my client a “general” designation on his F5 report. As I started working on his appeal, I was surprised to learn that the city basically had no documents relating to an investigation of my client.

This appeared to be a clear violation of chapter 614 of the Texas Government Code. Under chapter 614, a licensed peace officer cannot be disciplined based on a “complaint” unless the complaint is in writing, signed by the complainant, and presented to the peace officer within a reasonable time, and termination may not be “based on the subject matter of the complaint” unless the complaint is investigated and there is evidence to prove the allegation of misconduct.

There was no complaint in writing; it had never been presented to my client; there was no evidence of any true investigation. You would think that all of these factors would lead to a simple conclusion – my client was improperly fired and therefore his F5 should be changed to “honorable.”

As I did more research, I learned that this same small town had given less-than-honorable discharges to several peace officers. The issue of the lack of proper documentation came up in at least one of those cases. I also learned that the town had won those cases! What was going on?

One of the lawyers in one of those cases pointed me to the reason – the State Office of Administrative Hearings (“SOAH”) administrative law judges (“ALJs”) had decided that a poorly documented discharge was not a barrier to sustaining a bad F5. The explanation? The F5 appeal statute focuses the judge’s attention on one question – did the alleged misconduct actually take place? If the misconduct occurred, then the F5 is sustained by the judge.

This interpretation of the law has been appealed. In one unreported decision issued in 2020, McCall v. Hays County Constable Precinct Three, the Texas Third Court of Appeals determined that the ALJ was not required to consider Chapter 614 or use it as a reason to exclude evidence against the peace officer in that case. The Third Court of Appeals found there was sufficient evidence to find that the peace officer had, in fact, not followed department guidelines.

The McCall case is a good example of “bad facts make bad law.” The officer was accused of allowing his underage girlfriend to drink alcohol. The officer had told another officer that his girlfriend was intoxicated and that statement started the discharge process. If the test is “does the predominance of the evidence show that the alleged misconduct occurred,” there was sufficient evidence against officer McCall.

The McCall case stands as a warning to officers that want to appeal an adverse F5 – don’t rely on the fact that your department did not follow proper procedure in discharging you. You have to be prepared to demonstrate that you did not commit the alleged misconduct. I would be willing to argue in the right case that the lack of documentation should go to the credibility of the decision to terminate – but I don’t know how an ALJ would rule in that kind of case.

My client had a lot happen in his life that had nothing to do with his F5 appeal. He decided to focus on the other challenges and not go forward with his F5 appeal. I understood his decision.

If you are a Texas peace officer with an adverse F5, please give me a call or drop me an email. I will provide you with a free evaluation of your case. If I think I can help you, I will fight with all of my skill and experience to get you a better F5. Please contact me quickly – there are some super-tight deadlines in F5 cases that you do NOT want to miss.

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EMERGENCY HELP FOR TEXAS NURSES

Posted on March 4, 2020 by admin

As I write this, we are in the early stages of what could be a major health crisis in Texas. Patients with the coronavirus have already been identified in Texas. This virus is capable of spreading quickly. The experts say that each infected person could infect two to three other persons. This virus is also deadly – somewhere between ten and thirty times more deadly than the flu. Previous flu seasons have killed between 12,000 and 61,000 people in the United States. Thus, coronavirus could kill between 120,000 (at the low end) and 1.8 million people (at the high end) in one year. So far, the deaths from the virus have occurred in the elderly and those with compromised immune systems. An effective vaccine may be a year away. With more people being tested, it is inevitable that more cases will be reported.

Nurses in Texas are the front-line warriors in the fight against this virus. As it is a new virus, no one has any immunity to it. It is safe to predict that nurses that work in emergency rooms and nursing homes will be infected. Once infected, they should self-quarantine. They should either not go to work at all or be admitted to isolation until they are no longer infectious.

The entire health delivery system is going to be impacted. Sick people and the “worried well” will flock to emergency rooms and their local doctor’s offices. Thus, we could have a perfect storm – a greatly increased need for nurses at the exact same time that we have fewer nurses available.

The Texas Board of Nursing should prepare now for the worst. Many nurses in Texas have Board orders that do not allow them to work except in very specific supervised situations. This means that those nurses are confined to the sidelines and may not be able to help. The Board should adopt an emergency rule that will allow all nurses that are currently under practice restrictions to go to work anywhere.
If the crisis gets worse, the Board should also seek out nurses that have retired or that never completed their training. We may need anyone who can wear a mask and perform injections before this crisis finally passes.

Even without this crisis, experts are predicting a dire shortage of nurses in Texas. We are going to need more home health aids. The virus has the potential to exacerbate the need for nurses to actually go door to door and provide assistance to people who are quarantined in their homes. The Board should allow – no, encourage – anyone with sufficient training to fill in if the day comes that they are needed.

It may well be that we will never need to have door-to-door care. However, it is prudent to plan now for such a day. The Board of Nursing should provide a set of emergency rules now.

If you are a nurse who is currently facing a Board restriction on your license or who already has a restricted license, please call me at (512) 689-7815 or email me at ed@popelawtx.com. Even if the Board does not provide for global help for nurses during this emergency, it may respond to case-by-case petitions. I will fight for Texas nurses and will fight for you.

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I FIGHT FOR TEXAS CHILD CARE CENTERS

Posted on February 14, 2020 by admin

I recently handled a case for a child care center against the Texas Department of Agriculture (“TDA”). At issue was the center’s handling of the Child and Adult Care Food Program (“CACFP”). It was an amazing case. The TDA wanted to place my clients on the National Disqualified List – which would have effectively closed their center and made it impossible for them to work in child care in the future. If you are the operator of a center who gets a notice from the TDA, you need to contact a lawyer immediately.

• TIGHT DEADLINES – Once the TDA sends you a notice, you have a very short period of time in which to respond and ask for a hearing. If you fail to meet those deadlines, the TDA will win by default and you will be placed on the National Disqualified List.

• LACK OF DISCOVERY – The TDA could give you some very generic reasons for seeking to place you on the List and they may not give you the details that back up their determination. For example, you could be told that you didn’t keep proper time records – but not be told which specific time records were not available. The rules require information to be “made available for inspection” – but you have an extremely short time to ask for and review those records. You need someone in the Austin area to assist you.

• NO CONTINUANCES – I was retained on a Friday for a hearing the next Wednesday. In most litigation, the lawyers extend professional courtesy of a continuance, especially in these circumstances. The TDA lawyer could not agree, so I filed a Motion for Continuance that same day. A couple of hours later, I got the order from the State Office of Administrative Hearings (“SOAH”)– my continuance request was denied. I had to begin preparation for a hearing with less than four days to prepare.

• SHORT DEADLINES FOR DECISION – One factor that was very important for the Administrative Law Judge (“ALJ”) was the fact that federal law requires the ALJ to issue a decision within 60 days after the school appeals the TDA’s notice. Once that clock starts ticking, there does not appear to be a way of stopping it. The TDA lawyer informed me that TDA has to explain to the federal government any time SOAH does not issue a decision in time.

  • COMPLEX RULES – The rules for a child care center providing subsidized meals to kids are extremely complex, with rules that say which kind of milk has to be served to which kind of child at what hour.  The school is reimbursed on one set of criteria, but then judged by the auditors on how the receipts are preserved and payments made to vendors. Most schools are small with limited staff.  I’m amazed that any of them can follow all of the rules.

• TDA ALWAYS WINS CONTESTED CASES – I researched ALJ decisions for the last three years in TDA cases. Not one school had won. In many of the cases, the school did not even show up. In most of the other cases, the school tried to fight without a lawyer. I did not see a full-blown case where the school had had a lawyer and expert witnesses. A younger lawyer might have advised the client to surrender. However, I knew that there is only one way to have a perfect record – settle cases that are not perfect before going to trial. I advised my client to keep fighting.

• TDA IS NOT PERFECT – The TDA auditor claimed my client had done several things wrong. However, as I explored the case, I determined that the auditor had not properly examined the facts. For example, my client had some bank overdraft fees. The auditor failed to notice that those fees were caused by a bank error that the bank later corrected. The auditor found that time cards had not been signed, without recognizing that the school used an electronic time card system that used electronic pass codes. I am confident that I could have developed other errors if the case had gone to hearing.

As it turned out, the TDA withdrew their initial notice and the case was dismissed. My client missed the bullet this time.

If you or your school receives a notice from the TDA – call a lawyer IMMEDIATELY. The earlier you get a lawyer involved, the quicker you can start putting together a case. It is possible to fight the TDA. I will fight for you. Call me at (512) 689-7815 or email me at ed@popelawtx.com

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OLDER AND BOLDER FIGHTER FOR MY CLIENTS

Posted on January 16, 2020 by admin

For most of my career, I have evaluated cases based on whether I thought my potential client had a good chance of winning. If I didn’t see a clear pathway to victory, I would decline the case. I’m now older and have changed my approach.

It started with a potential client who wanted me to represent him regarding a State Office of Administrative Hearings (“SOAH”) decision by an Administrative Law Judge (“ALJ”). I read the decision and saw that the ALJ had made a serious legal error. However, the time for appeal had long expired and his former lawyer had not taken the steps necessary for him to take the appeal. I reported my findings back to the potential client. He encouraged me to “treat this like a death penalty case.” In other words, he wanted me to raise every possible issue and think of creative approaches. I took the challenge and actually came up with a couple of innovative approaches. They were high risk, low probability approaches – but they gave the client a chance, which was more than he had before.

So I’ve started taking cases that looked impossible at first glance.  I see them as mystery stories (some details have been changed to protect confidences):

• THE MYSTERY OF THE MAN IN TWO PLACES – One case involved a man who was suing my client. He claimed to be out of town when a crucial transaction took place. He had plane tickets, a doctor’s note and credit card records that showed he was not in town. My client swore he was in town and had three witnesses who saw the man sign the crucial transaction. My initial reaction was that this was a very difficult case. As we went through discovery, it turned out that the man had scammed other people and had a pattern of conducting scams. He might have gotten away with this one but for the fact that he claimed that he was out of town for yet another transaction. On that transaction, we had signatures – signatures that matched signatures that he could not deny were his. In other words, we could prove he was lying. The case was dropped and my client won.

• THE MYSTERY OF THE SINGLE FINGERPRINT – My client was fired because her boss thought she had lied to the police. Once again, the case looked very bad for my client. At issue were letters, accusing her ex-husband of wrongdoing. She said she had nothing to do with it, but the cops did not believe her. My client had motive (a looming custody case) and opportunity (she was in the town where the letter was mailed). To top it off, there was a fingerprint on one of the letters – a big, clear fingerprint that matched my client. As any reader of mystery stories will know, all the evidence can appear to point one direction – but then someone else can be shown to be the true perpetrator. In this case, the fact that there was only one fingerprint turned out to be a key clue. None of the other letters had any fingerprints. Even the letter that did have a fingerprint only had a fingerprint on one side of the paper. Fingerprints cannot be dated. The letter could have been written on piece of paper that my client had touched many years before. Coincidentally, the letter that had the fingerprint went to one person who was out of town at the time. The person who got the letter was a co-worker of the ex-husband. So my theory of the case developed – the ex-husband and his new girlfriend worked up a way to harm my client. All they needed was one precious piece of paper – the one with the fingerprint. They sent it to the co-worker, knowing he would be out of town. They took the letter to the police. The letter used an address that was not public information. The girlfriend lived in the town where the letter had been mailed. In my theory, they used gloves or some other method to avoid leaving fingerprints on every other letter. The husband was not harmed by the letters, but my client was fired. The husband had motive – the same looming custody case. The husband and the girlfriend had opportunity – she lived in the town where the letters were mailed. In other words, I believe that there was a solid case to be made that my client had been framed. The case resolved before I got a chance to put all of this evidence on the record.

• THE MYSTERY OF THE REALLY BAD DAY – I was approached by a potential client who wanted me to represent him at SOAH. He already had filed an appeal at SOAH and was in the middle of his case, but finally realized he needed a lawyer to help him. I looked over his case and did not see a way for him to win. The record showed that he had had a really bad day at work one day and had done and said things that he should not have. His employer had clear records of his bad day, including videos that showed he was not at his post when he should have been. There was no way he was going to win at hearing. I declined the case. I then got a phone call from his Mother, begging me to take it. I explained to her that I did not see how I could help. She explained to me that the former employer didn’t want to fight her son. That was the clue I needed. I looked at the record again and saw that the former employer had never responded to any of the orders from SOAH. I contacted them and got confirmation – they were not going to fight. I anticipate resolving this case in my client’s favor early this year.

• THE CUSSING IN THE CLASSROOM MYSTERY – My client was a substitute teacher at a local high school. One day, he was telling “war stories” about his life as a cop and said some things that some parents found offensive. The school let him go for cussing in the classroom. His other employer was a police department. They heard about the stories and they let my client go. However, they filed a report that would have damaged my client’s career (called an “F5” report). As I worked on his case, I determined that the department had not followed the legal procedures for an investigation. As it turned out, they had filed the report based on a rumor – a rumor that was not true. I talked the department into a mediation. At the mediation, my client got a chance to tell his story directly to the people who had filed the report and explain to them how and why the rumor was false. We reached a settlement that relieved my client of the bad report.

I am representing other clients right now whose cases looked impossible. I am probably not going to win all of them. That doesn’t bother me. The other side is going to know they have been in a fight. I’m going to keep taking cases that I would have once turned down. If you’ve been turned down by other lawyers, please give me a call at (512) 689-7815. If you are a police officer, a nurse, a pharmacist or someone else whose livelihood is being threatened, give me a call. If you have a case at SOAH and need help, give me a call. If you want an older, bolder lawyer who is not afraid of a hard fight – give me a call today.

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PHARMACISTS – CALL YOUR LAWYER EARLY!

Posted on November 14, 2019 by admin

I was recently approached by a young pharmacist who had been investigated by the Texas Board of Pharmacy. He had been accused of not following several of the Board’s rules. He was at the stage where the Board’s staff had submitted an “Agreed Board Order.” If he signed the Order, he would be fined and required to engage in additional professional education. Most importantly, he would always have a record that will follow him all of his professional life. His main concern was to avoid the creation of that record.

After I talked to the pharmacist, I researched the material he submitted to me and the Board rules. It was my opinion that he had been over-charged under the rules and I was confident that I could negotiate a lesser sanction. However, I could not see any pathway that would avoid the entry of some kind of Board order. He was convinced that he had done nothing wrong. He was unhappy with my answer and declined to retain me.

In addition to fighting on behalf of pharmacists, I fight for Texas nurses. The Texas Nursing Board has a rule that allows the Executive Director the power to issue an “Agreed Corrective Action.” Such an “Action” allows the Nursing Board to impose discipline upon a nurse without issuing a formal disciplinary order. Thus, a nurse can be fined or required to have additional professional education without having an order that will follow that nurse’s professional life.

Unfortunately, the Pharmacy Board does not have a similar rule. I think it should. If it had such a rule, I might have been able to help the young pharmacist in a way that would have satisfied him.

This is a lesson to other pharmacists. If you are contacted by the Board, call your lawyer. If you don’t have a lawyer, get one! IF I had been consulted by the young pharmacist in time, I might have been able to convince the Board staff to not bring a disciplinary action against him. The staff has the discretion to not prosecute. The pharmacist had enough facts in his favor that the staff might have been willing to work with him. Once they opened the disciplinary process, however, there is no way that I know of to end the process without the entry of some order.

If you are a pharmacist and know that the Board is investigating you – please call me. You can reach me at (512) 689-7815 or email me at ed@popelawtx.com. I will offer you a free consultation. The earlier you call a lawyer, the more options you will have. I will fight for your license.

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INFORMAL CONFERENCE AT THE TEXAS BOARD OF PHARMACY

Posted on October 17, 2019 by admin

If you are a pharmacist or a pharmacy who has received a notice of an informal conference from the Texas Board of Pharmacy, (“the Board”) you may be wondering – what happens at one of these conferences? I represent pharmacists and pharmacies before the Board, and here is my take:

• Before the Conference – Parking is a mess in downtown Austin, so allow yourself extra time to find a parking spot. They are also expensive – the lot across the street recently charged me $18 for two hours! Once you arrive in the building where the Board is housed, you will check in with security. Be SURE to have your ID! Security will direct you to the proper floor. Follow the signs to the conference room. It is a small windowless room with a conference table and a few chairs. You will be asked to sign a form that explains the procedures. If you have a business card, you will be asked to attach that card.

• During the Conference – You will be called into a larger conference room which does have windows. There will be a table at the front of the room where the Board members and the Board Staff sits. There are usually two Board members in attendance. There are chairs that face their table where you and your lawyer can sit. The Board attorney will explain the case to the Board members. They have an electronic file which contains all of the materials from the Board Staff. After the presentation by the Board attorney, you will be given an opportunity to present facts in your favor. The Board members may ask you questions. After all the presentations, you are sent out of the room and back to the conference room across the hall.

• The Judgement – After a few minutes of deliberation, the Board calls you back into the room. The Board staff states the terms of the order that the Board proposes for your case. You may ask questions. As far as the Board is concerned, they are done.

• Do You Have to Agree to the Proposed Board Order? – The short answer is “no.” You can take your case to the State Office of Administrative Hearings (“SOAH”) and seek a better outcome. Whether or not you want to go that path requires evaluation of a lot of factors. You will want to consult with a lawyer before making this choice.

• Does Having a Lawyer Help? I have to believe the answer is “yes.” A lawyer can prepare a submission to the Board in advance of the conference. This submission can present all the facts in your favor. A lawyer can also prep you for the conference. In one recent case, all of the Board questions went to my client. He was prepared, as he and I had talked about what questions the Board was likely to ask. He was grateful after the meeting. A lawyer can also help you determine whether or not you want to appeal the proposed order to SOAH.

If you have a notice of a preliminary hearing from the Board, I strongly recommend that you call a lawyer who has Board experience immediately. The notice has some very important deadlines and there can be serious consequences for failing to meet those deadlines. Please give me a call at (512) 689-7815 or email me at ed@popelawtx.com. I will fight to protect your license from the Pharmacy Board!

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SHOULD A NURSE HAVE A LAWYER WHEN APPEARING BEFORE A PEER REVIEW COMMITTEE?

Posted on September 29, 2019 by admin

I recently had an opportunity to represent a nurse before her hospital’s peer review committee. I think most nurses try and “go it alone” before such a committee. I think this is a mistake. The nurse should consider:

• Your License Could Be On The Line – The peer review committee can refer a nurse to the State Board of Nursing. Once such a referral is made, it is difficult for even the committee that issues the referral to take it back. Once a committee report is sent to the Board, it is difficult to predict how the Board will react to it. I have seen cases where I thought the nurse had excellent arguments, but still got some pretty severe sanctions. If the nurse had been represented by a lawyer before the committee, some cases might not have gone to the Board at all.

• The Committee Must Follow Board Rules – The Board has rules on how a committee is to be composed and how it is to review a nurse’s actions. Most importantly, the rules say the nurse can be represented by a lawyer. You must have the opportunity to review the evidence against you. The committee should follow a decision matrix to determine whether your case requires referral to the Board. A lawyer can use those rules and argue that they should be applied in your favor.

• The Committee Might Have A Lawyer Of Its Own – If there is a hospital lawyer working with the committee, that lawyer’s primary interest is protecting the hospital. In the case I handled, there were several shortcomings by the hospital that were not reflected in the initial committee report. A wise lawyer once told me that going up against a lawyer without having one of your own was like trying to fight a grizzly bear with only a small switch. His point was that a layman is completely outmatched by a prepared lawyer. You don’t know the rules of evidence – but the lawyer does. You don’t know how to ask leading questions – but the lawyer does. You may not even know how to ask trick questions – but the lawyer knows how to trip you up!

• A Lawyer Can Tell Your Story Better Than You Can – Your training is in taking care of sick people. If threatened, you will defend yourself the best you can. However, you should realize that you are not trained to present your case in an optimum manner. A lawyer can organize the facts so that the committee understands what you did and why you did it.

• A Lawyer Can Hold Your Hand – Being examined by a peer review committee is nerve-wracking. It is a type of stress that you have (hopefully) never experienced before. I have had many a client come to me in absolute stress and be much calmer after talking to me. You don’t have to go through this alone. You can have an experienced fighter at your side.

• Lawyers Are Not As Expensive As You Might Think – I know that nurses don’t make a lot of money. I take that into account when setting my fees. I think if you look around, I’m one of the most reasonable lawyers available. You should ask – how much would it cost me if I totally lost my license or had a lot of restrictions on my license. I am a LOT less expensive than an adverse Board order on your record!

If you are a nurse facing an upcoming peer review committee, I encourage you to call me. I will give you a free initial case evaluation. I don’t take cases if I don’t think I can help or if I think the potential client can handle the situation on their own. Just talking to me might clarify your situation and the story you want to tell. Please email me at ed@popelawtx.com or call me at (512) 689-7815.

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MISTAKES IN F5 APPEALS

Posted on August 26, 2019 by admin

I represent peace officers who appeal discharges by their former employers, usually police departments or sheriff’s offices. Those discharges are accompanied by a form known as a “F5.” An adverse F5 can cripple or end an officer’s career. Because of that, such officers can appeal that decision to the State Office of Administrative Hearings (“SOAH”).
From time to time, I am approached by potential clients who want me to fix mistakes that have happened to them in their appeal. Now, I’ve made my share of mistakes. However, these calls reveal some mistakes that just amaze me. These were committed by lawyers who should have known better.

• Introducing Evidence Against the Client – In most F5s, the parties are the peace officer and the department that discharged the officer. The department has the burden of proof, which should mean that if the department does not put on any evidence, the officer wins. In one case I reviewed, however, the lawyer for the officer put on evidence even though the department did not show up. The Administrative Law Judge (“ALJ”) reviewed that evidence and determined that the F5 should be sustained. In other words, the lawyer essentially lost what should have been a default judgment.

• Failing to Move For a Rehearing – In the case I just mentioned, the ALJ issued a Proposal for Decision (“PFD”) that explained why he had ruled against the officer. He described the decision to put on evidence as inexplicable. The cover letter notified the attorney that he could file for rehearing. He should have moved for rehearing and moved to withdraw the damaging evidence. He did not do either.

• Failing to Appeal to District Court – If an officer gets an adverse decision by the ALJ, the case is not over. The officer can appeal to district court in Travis County. However, I have been approached in a couple of cases where the lawyer for the officer did not take the proper appeal. If no appeal is taken, the order becomes final. I’m not sure my potential clients were even told of the opportunity to appeal.

• Filing an Appeal in the Wrong Place – One lawyer got an adverse decision for her client and filed an appeal. That would have been the proper move. However, she filed the appeal to the Texas Commission on Law Enforcement (“TCOLE”). TCOLE does not have any power to change an ALJ’s decision. By the time the lawyer learned that fact, her client had run out of time to appeal to the district court.

In another case, the client hired a new lawyer after losing at SOAH. Once again, that lawyer did not file an appeal with district court. That lawyer filed an “appeal” with the city that had discharged the officer. Now, there might have been a way to sue that particular city for what it did to the officer. However, the way the case was presented to the City, it was framed as an appeal of the F5 decision. Once again, the city had no power to overturn the F5.

In my opinion, the lawyers in these cases either committed malpractice or came perilously close. Their clients suffered. By the time the clients came to me, there was little I could do. These cases illustrate the importance of hiring an experienced lawyer for a F5 appeal. If you are a peace office with an adverse F5, I urge you to contact me. I will use my experience to fight for you. Call me at (512) 689-7815 or email me at ed@popelawtx.com.

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CHANGE IS COMING TO THE REGULATION OF TEXAS PSYCHOLOGISTS, MARRIAGE AND FAMILY THERAPISTS, PROFESSIONAL COUNSELORS AND SOCIAL WORKERS

Posted on June 13, 2019 by admin

The Texas Legislature in 2019 adopted a law that will greatly change the regulatory structure that governs several mental health professionals. The law will affect:
• Texas Psychologists
• Marriage and Family Therapists
• Professional Counselors
• Social Workers

WHAT IS GOING TO HAPPEN?

These professions are currently regulated by separate boards. The new legislation will create a “Texas Behavioral Health Executive Council” to regulate all of these mental health professionals under one governing body. The new Council will be comprised of nine members. Each current board will nominate one professional member and one public member to the Council and the Governor will appoint one public member.

WHAT POWERS WILL THE COUNCIL HAVE?

The Council will have the power to set the rules for practitioners, including disciplinary rules. It will have the power to revoke a license or fail to renew a license. It can handle complaints relating to the professionals. It can also impose administrative penalties. Disciplinary cases can be handled by informal conferences or by formal referral to the State Office of Administrative Hearings. (“SOAH”)

WHY DID THE LEGISLATURE CHANGE THE CURRENT STRUCTURE?

The House Research Organization prepared a bill summary that explains:

The boards that regulate marriage and family therapists, counselors, and social workers currently are not effectively regulated, putting vulnerable Texans at risk. The administrative attachment of these boards to the Health and Human Services Commission (HHSC) impairs their ability to function efficiently, and the boards are mired in unreasonable bureaucracy. Consolidating these boards with the board of psychologists, a well-run independent agency, would improve regulation and increase operational efficiencies by allowing for a greater alignment in functions and processes, economies of scale, and better resource management.

Creating an executive council to more efficiently regulate these professions also would lead to greater responsiveness of the boards and council to license applicants and licensed professionals. Complaint processes at the boards can take years to resolve under the current system, frustrating professionals and endangering the public. Merging the boards into the BHEC would improve services for professionals and behavioral health care consumers while better protecting Texans from potentially harmful practitioners.

WHEN WILL THIS ACT TAKE EFFECT?

The act becomes effective on September 1, 2019. The law creates a transition team designed to merge the current separate board operations so that the new Council will be fully operating by September 1, 2020.

WHAT EFFECT WILL THIS HAVE ON PRACTITIONERS?

Based on my experience representing other professionals before state boards and agencies, I can say that most practitioners will not see any significant impact from the creation of this Council. However, any professional that is currently being investigated by their board or that gets in trouble with their current board before the Council is up and running may face challenges navigating the transition. If you get a notice from the Texas State Board of Examiners of Marriage and Family Therapists, Texas State Board of Examiners of Professional Counselors, Texas State Board of Examiners of Psychologists, or Texas State Board of Social Worker Examiners, I strongly urge you to contact an experienced attorney. I would be honored to represent you if you are under such investigation. Please contact me by emailing me at ed@popelawtx.com or call me at (512) 689-7815 today.

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HELP FOR TROUBLED NURSES IN TEXAS

Posted on May 2, 2019 by admin

I recently settled a case for a nurse with the Texas Board of Nursing (“the BON”). In the course of handling the case, I learned more about options that may be available to nurses who may have disciplinary cases before the BON. If you have received a letter from the BON regarding something that they think you have done wrong, you may want to consider these options.

• The Standard Procedures – If the BON has sent you a letter, you need to treat it very seriously. You should ALWAYS respond to the letter. Failure to do so could result in a default order that will impact your license the rest of your life. Of course, I recommend that you hire a lawyer as soon as you get the letter. Depending on the severity of the alleged infraction, you may be able to negotiate a resolution with the Board staff. It is possible to convince the Staff that no additional actions need to be taken by the BON. In most cases, however, the Staff will move forward. They will usually send you a Proposed Agreed Order. That Order will have some sanctions on your license. The sanctions range from remedial education up to fines and significant restrictions on your future employment. You may also be given the option to have an “Informal Conference.” There is nothing “informal” about these conferences. You go before a panel that contains at least one Board member. The Staff presents its case against you and you are given an opportunity to respond. The panel then makes an offer of an Agreed Board Order. All of my clients who have been offered such an Order have agreed to the terms of that Order. That Order becomes part of your permanent record and is available on-line for anyone to review. It is also sent to the national database.

Because a Board order can have such a major impact on your license, you should explore alternatives to such an order. You may want to consider:

• TPAPN – TPAPN stands for “Texas Peer Assistance Program for Nurses.” You can learn more about the program at https://www.texasnurses.org/page/TPAPN. If you are a nurse who has a substance abuse or mental health problem, TPAPN may be able to help. It is especially helpful to nurses who may be in trouble with the BON. If you get help from TPAPN early in the process, you may be able to avoid a public order from the BON. Nurses should not see TPAPN as a “get out of jail free” card. It is a rigorous program that may involve drug testing, meetings and as many restrictions on employment as a Board Order. However, it can be a very effective program. In my experience, the TPAPN staff is empathetic to their fellow nurses and will work with a nurse to help restore good practices for the nurse. The program can literally be a life saver for some nurses. If you are a nurse who qualifies for the program, you should at least explore what TPAPN has to offer.

• KSTAR – KSTAR stands for “Knowledge, Skills, Training, Assessment and Research.” It is a program run by the Texas A&M Health Science Center (“TAMHSC”) A&M Rural and Community Health Institute (“ARCHI”). You can learn more about KSTAR here: https://architexas.org/kstar-nursing/faq.html. The BON allows some nurses who have nursing practice violations to go through the KSTAR program. It is not cheap – the quote I obtained for one client was $2750. That must be paid up front. In addition, the nurse has to go to Bryan/College Station at least twice. The KSTAR program involves courses and evaluations of the nurse. There may be a precepted clinical experience. The nurse still gets an order from the BON, but the orders I have seen have many fewer details about the infraction by the nurse and do not contain other restrictions on the nurse’s practice.

If you have received a letter from the BON, I strongly encourage you to call a lawyer. Dealing with the BON can be tricky and you may not know all of your options. If you are a nurse who needs help with the BON, please call me at (512) 689-7815 or email me at ed@popelawtx.com. I would be honored to represent you.

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