Recent DOJ enforcement action a reminder about practicing medicine

Every state has its own requirements for physicians and other medical professionals such as nurse practitioners, physician assistants, and respiratory therapists – just to name a few. Three issues that are particularly germane to all types of medical professionals are as follows: (1) practicing within the scope of the license held by the individual; (2) if a non-physician, the ability to practice independently of a physician license; and (3) continuing to practice once a license is suspended.

Let’s focus on the State of Texas to address each of these issues.

Specific licensing boards in Texas define the scope of practice for different medical professionals. For example, the Texas Board of Nursing provides that for an advanced practice registered nurse (APRN), the scope of practice includes three main facets:

1. Advanced practice education in a role and specialty;
2. Legal implications (e.g. compliance with the Nursing Practice Act and Board Rules); and
3. Scope of practice statements as published by national professional and advanced practicing nursing organizations.

A couple of items that every individual practitioner should be aware of are that the scope of practice is finite and that expansion of the scope may only be achieved by meeting all of the legal requirements, which vary with an individual’s particular license. In Texas, all APRNs are first licensed as RNs and they are required to maintain an RN license. The converse, that all RNs are APRNs is false. As it relates to the scope of practice, if an APRN is working in an RN role, then the scope of practice is limited to the RN license.

With respect to a non-physician practicing independently of a physician, this is a state-by-state inquiry. The Texas Board of Nursing still requires a delegating physician; however Texas HB 278 (2019) removed the “face to face meeting requirement between physicians and APRNs, so long as a new agreement is signed.

This means that APRNs who enter into a prescriptive authority agreement on/after September 1, 2019 must have monthly meetings for the duration of the prescriptive authority agreement, and the meetings may take place via other means, such as via telecommunication. If an APRN chooses not to sign a new agreement, the law in effect on the date the agreement was entered into applies, and the face to face in person meetings are required. APRNs who provide care in Texas may wish to sign a new prescriptive authority agreement beginning September 1, 2019 in order to take advantage of the changes to Texas law.

A recent U.S. Department of Justice enforcement action, which was brought by the U.S. Attorney’s Office for the Southern District of Texas highlights the third issue – continuing to practice on a suspended license. On September 6th, a physician assistant who had his license suspended continued providing care in order to defraud Medicaid. Some key portions of the DOJ’s press release follow:

On July 20, 2021, the Texas Medical Board allegedly ordered the immediate suspension of Mendez’s physician assistant license, deeming him to be a “continuing threat to public welfare.” He was then prohibited from practicing medicine, according to the charges.

However, Mendez allegedly continued to evaluate and treat patients at mental health clinics in Brownsville, Harlingen and Pharr and billed Medicaid for services he rendered during his suspension.

The indictment further alleges Mendez attempted to conceal his continued practice of medicine by using identities of other physicians and medical personnel. Specifically, Mendez allegedly created medical records under the identities of other physicians while they were traveling outside of the United States. The charges also allege Mendez submitted false statements to the Texas Medical Board in an effort to conceal his improper practice of medicine.

Mendez is charged with seven counts of health care fraud for which he faces up to 10 years in federal prison. If convicted of any of the four aggravated identity theft charges, he faces another two years which must be served consecutively to any other prison term imposed. All counts also carry as possible fine of up to $250,000.

In sum, these areas should be on every practitioner’s radar in order to remain legally compliant, continue to have the ability to work within the scope of the license, and avoid potentially criminal consequences.

Rachel V. Rose, JD, MBA, advises clients on compliance, transactions, government administrative actions, and litigation involving healthcare, cybersecurity, corporate and securities law, as well as False Claims Act and Dodd-Frank whistleblower cases. She also teaches bioethics at Baylor College of Medicine in Houston. Rachel can be reached through her website, www.rvrose.com.