The Texas Medical Board (“Medical Board”) regulates surgical assistant practice in Texas. Chapter 206 of the Texas Occupations Code sets out the Medical Board’s general powers to regulate the practice of surgical assistants. The Medical Board is tasked with establishing surgical assistant practice qualifications, examination procedures, minimum training and education, and continuing education. While the Texas Occupations Code provides for the creation of an advisory committee made up of practicing surgical assistants, physicians, and one perioperative nurse, that committee is informal and does not have any independent rule-making authority.
Complaints and Investigation
Complaints regarding surgical assistants are filed with the Medical Board. A complaint may be filed by phon, in writing, or through the Medical Board’s website. The Medical Board maintains a file on each written complaint that is filed. This file includes the name of the complaining party (the “complainant”), the date the complaint is received, the subject matter of the complaint, the name of each person contacted in relation to the complaint and an explanation of why the file was closed (in the event that no further action was taken). The Medical Board is required to give regular updates (at least quarterly) on the status of a complaint until the complaint is disposed. However, the Medical Board is not required to provide these updates if such an update would jeopardize an investigation.
The Medical Board is required to conduct a preliminary investigations on complaints within 30 days of receipt. It first determines whether a surgical assistant’s conduct constitutes a continuing threat to public welfare. After that determination, the Medical Board determines whether or not to officially proceed on the complaint. The Medical Board’s failure to complete the preliminary investigation within the 30 day statutory timeline does not result in dismissal of the investigation. Instead, if no action is taken in the 30 day window, the Medical Board’s formal investigation is considered to commence on that date.
Disciplinary Actions by the Texas Medical Board
The Medical Board has broad authority to impose penalties and sanctions against surgical assistants, including the power to require a surgical assistant to submit to care, counseling, or treatment. Any licensee that violates a licensing statute or rule is subject to discipline by the Medical Board. Disciplinary action by the Medical Board can include:
- denial of a license application
- revocation of an existing license
- probated enforcement
- mandatory additional training
- suspension or limitation of a surgical assistant’s license
- requiring periodic review of a licensee
- administrative penalties (which can be up to $5,000 per day that a violation continues or occurs)
- ordering public service
- a public reprimand
Additionally, the Texas Occupations Code identifies three specific areas of conduct that can result in license action. These include conduct related to fraud or misrepresentation, conduct related to violation of law; and conduct indicating a “lack of fitness.” Conduct defined by law to constitute fraud or misrepresentation include:
- fraudulently or deceptively obtaining a license;
- fraudulently or deceptively attempting to obtain a license;
- using a license in a fraudulent or deceptive manner;
- falsely representing that a person i s a physician;
- dishonorable or unprofessional acts that are likely to deceive, defraud, or injure the public;
- fraudulent alteration of a diploma, certificate, or license;
- using a surgical assistant license, certificate, or diploma that has been fraudulently purchased, obtained, issued, counterfeited, or materially altered; and
- advertising in a false, misleading, or deceptive manner.
Violation of the law can also result in Medical Board action. A violation of law includes (i) violation of Chapter 206 of the Texas Occupations Code or a Medical Board rule adopted thereunder; (ii) being convicted, placed on deferred adjudication for, or placed in a pretrial diversion program for a felony; and (iii) violation of any Texas law in connection with a person’s practice as a surgical assistant.
Texas law also sets forth certain minimum standards of conduct applicable to surgical assistants. These Medical Board may take action against a surgical assistant who:
- habitually uses drugs or intoxicating liquors to the extent that the Medical Board believes the person cannot safely perform as a surgical assistant;
- has been adjudicated mentally incompetent;
- has a mental or physical condition that renders the person unable to safely perform as a surgical assistant;
- has committed an act of moral turpitude;
- has failed to practice in an acceptable manner consistent with public health and welfare;
- has had the person’s license revoked, suspended, or restricted;
- has had other disciplinary action taken by another state or authority;
- is removed, suspended, or has disciplinary action taken by the person’s peers in a professional association or society, or is being disciplined by a licensed hospital or medical staff of a hospital;
- has repeated or recurring meritorious health care liability claims; or
- sexually abuses or exploits another person during the license holder’s practice as a surgical assistant.
In addition to the above, the Medical Board is required to suspend the license of a surgical assistant serving a prison term in a state or federal penitentiary during the term of the incarceration.
Surgical Assistant Access to Complaint Information; Restrictions and Exclusions
Surgical assistants who are the subject of a complaint are entitled to all information in the Medical Board’s possession that is intended ot be offered into evidence in a contested case. While this sounds at first like open access to information, there are a number of restrictions that apply. For example, the Texas Occupations Code specifically excludes licensee access to (i) Medical Board investigative reports; (ii) investigative memoranda; (iii) the identity of a non-testifying complainant; (iv) attorney-client communications; (v) attorney work product; and (vi) other materials covered by a privilege under the Texas Rules of Civil Procedure or the Texas Rules of Evidence. Accordingly, while a licensee may believe he or she has access to a great deal of information, the law allows the Medical Board to refuse to disclose quite a bit of information in its possession.
Health Care Entity Request for Information
A health care entity may send a written request to the Medical Board for information about a complaint filed against a license holder under certain circumstances. The information must be provided to that health care entity if the investigation was resolved by either a disciplinary of the Medical Board or an agreed settlement. The health care entity is also entitled to the basis and current status of any complaint that is under active investigation or that has been referred to the executive director for legal action.
Permitted Disclosures of Investigative Information (licensing authorities, peer review committees, and law enforcement)
The Texas Occupations Code allows the Medical Board to disclose investigative information on a license holder to certain persons. Specifically, it may disclose investigative information to a licensing authority in another jurisdiction and peer review committees. Disclosure to peer review committees is only permitted, however, when that peer review committee is reviewing an application for privileges or the qualifications of the license holder with respect to retaining privileges. The Medical Board is also allowed to disclose investigative information that indicates a crime may have been committed to a proper law enforcement agency.
Surgical Assistant License Eligibility – Character, Education, Criminal Convictions, Training, and Examination
An applicant for licensure as a surgical assistant must meet certain conduct standards. These include (i) being of “good moral character;” (ii) not having been convicted of a felony or a crime involving moral turpitude; (iii) not using drugs or alcohol to the extent that it affects the applicant’s professional competency; (iv) having no previous license or certification revoked; and (v) not having engaged in fraud or deceit in applying for licensure. An applicant must meet the minimum education level, meaning that he or she holds at least an associate’s degree equivalent to the education required for a registered nurse or physician assistant who specializes in surgical assisting. The applicant must demonstrate completion of supervised full-time work experience under the direct supervision of a physician consisting of not less than 2,000 hours performing as an assistant in surgical procedures. The 2,000 hour requirement must also be completed within the 3 years preceding the applicant’s application. The applicant must possess current certification by a national certifying body approved by the Medical Board. Finally, the applicant must pass the surgical assistant examination.
Summary and Conclusion
If the Medical Board is taking action against your license – DO NOT WAIT. You should immediately retain an experienced professional license defense attorney to protect your license and respond to allegations. You may think that just discussing the matter will bring it to a resolution, but through that discussion you may dig yourself into an even deeper hole. Just as your attorney is ill-equipped to come in and perform surgical assistant services, you cannot possibly prepare to properly defend your license against an experienced Medical Board prosecutor.