8/11/18 · 8/11/18 3 rocky the medical assistant •rocky has a history of a deferred cocaine...

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THE OPIOID CRISIS: APRN’S COLLABORATIVE DAMAGE

JOE A. FLORES RN,MSN,JDLAW OFFICES OF JOE FLORES

[email protected]

Joe A. Flores RN,MSN,JD• Joe Flores is a practicing APRN and TRIAL

ATTORNEY WHO DEFENDS NURSES AND OTHER HEALTH CARE PROFESSIONALS.

• UNSUSPECTING APRN’S (ESPECIALLY NEW GRADS) are hired by pain management and regular clinics who handle opiates

• These APRN’s can easily become targets of civil and criminal investigations and face civil, administrative and criminal charges.

• JOE HAS WORKED ALONGSIDE DEA, HHS, ICE, AND OTHER STATE AND FEDERAL AGENCIES ON THE OPIOID CRISIS AND HAS HELPED SHAPE POLICY

JOIN THE CONVERSATION: CALL JOE ANY TIME AT 361-

887-8670 OR e-mail his assistant [email protected].

NOTICE• The following educational opportunity does not constitute legal

advice nor does it constitute solicitation for legal business. For specific legal questions the learner should refer to lawyers in their jurisdiction or by contacting their state bar association.

-Joe Flores JD, APRN, FNP-BC, CCRN



GOALS AND OBJECTIVESIn This Teaching Session The Learner Will:

Gain Knowledge on the NPA and Board Rules And Regulations Including the Disciplinary Process

• Gain Increased Knowledge Regarding the Criminal Justice System and the Roles of Key Individuals in the Justice System

• Review Due Process and Constitutional Rights• Learn Strategies That Accused Nurses Use To Protect

Themselves During Licensure Disciplinary Investigations• Increase Knowledge Regarding Due Process and

Constitutional Rights During a Criminal Investigation• Determine how trouble with the law can affect a nurse’s

professional license, subject them to civil and criminal prosecution separately and simultaneously

• Learn About the “Anatomy of a Civil Lawsuit” and a case involving Nursing Negligence



BASED ON A REAL LIFE SCENARIO• Pat is an NP. For the last 12 years Pat has been working

in pain management and hospice. Pat is a respected part of the healthcare team.

• After October 2014 Lortab/Norco became a Schedule II drug. Before then Pat could call in scripts by phone.

• Additionally, programs to monitor scripts have been implemented to monitor scripts by DEA and DPS which are not merging into one: DEA.



PAT IS NOT WHO WE THINK SHE IS• One afternoon DEA agents along with BON

investigators raid the pain management clinic PAT is employed and is part owner.

• They seize cell phones, laptops, and begin packing up all hard copies of records and present a subpoena duces tecum for all documents and a warrant to seize all devices signed by a federal magistrate



mailto:[email protected]

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Dr. Smith her collaborating physician• Dr. Smith has been her collaborating M.D. for

years• Unbeknownst to Pat, the pain clinic has been

under investigation for two years for providing over 7,000 “Houston Cocktails” of Lortab, Soma and Xanax

• The medical records reflect a pattern of providing the same script to many patients



Facts• Pat had reported her DPS number being used or misappropriated 3

years before at least twice (should have called DEA)• Local police had made a report but no one was ever apprehended• Unfortunately, she did not perform continued verification of her

DPS/DEA number fraud or request another DEA number• She did not inform Dr. Smith of the incident• PAT SHOULD HAVE PARTICIPATED IN PRESCRIPTION

MONITORING PROGRAM PMP(AWARxE clearinghouse) to know if patients are not filling same script with multiple providers and that the APRN actually prescribed all the CS’s the PMP is attributing to the APRN



MEANWHILE BACK AT THE CLINIC…• SPECIAL AGENT STARLING IS

QUESTIONING DR. SMITH IN ONE ROOM• ROCKY THE MEDICAL ASSISTANT IS IN

ANOTHER• PATIENT’S HAVE BEEN ASKED TO COME

ANOTHER DAY• PAT IS IN THE FINAL EXAM ROOM



THE INTERROGATION BEGINS

• PAT ASKS IF SHE NEEDS A LAWYER• DEA AGENTS SAY THIS WILL HAVE TO “GO

ANOTHER WAY” IF PAT CHOOSES THAT ROUTE• She is told she is free to leave is she desires at

any time• NO MIRANDA WARNINGS ARE READ• PAT VOLUNTARILY INFORMS THEM OF THE

PRESCRIPTION THEFT YEARS AGOJOIN THE CONVERSATION: CALL JOE ANY TIME AT 361-


THE DOCUMENTS

• PAT IS SHOWN A LAPTOP FULL OF SCRIPTS OVER 3 YEARS, MANY OF THEM WITH MATCHING PATIENT NAMES FROM THE “FEELING GOOD PAIN MANAGEMENT CLINIC” WHERE SHE IS EMPLOYED

• SHE DENIES GIVING 90 PERCENT OF THE SCRIPTS, AND EMPHATICALLY TELLS THEM SHE GAVE NO REFILLS, AND NO NORCO AFTER OCTOBER 6, 2014.

• DEA AND BON INVESTIGATORS TELL PAT THAT THIS DOES NOT ADD UP



DR. SMITH’S INTERROGATION• DR. SMITH IS 78• HE IS A SEMI RETIRED ANESTHESIOLOGIST WHO RARELY DOES

ANYTHING BUT BLOCKS AND PRESCRIBES MEDICATION• HE HAS BEEN DISCIPLINED IN 2010 FOR FAILURE TO MAINTAIN PROPER

DOCUMENTATION AND FAILURE TO MONITOR PATIENTS RECEIVING PAIN MEDICATION WITH A WARNING AND REMEDIAL DOCUMENTATION, JURISPRUDENCE AND CHART MONITORING

• HE TELLS AGENTS HE DOESN’T FEEL WELL AND WANTS NO TROUBLE. HE INDICATES THAT PAT SAW THE PATIENTS, SUGGESTED THE SCRIPTS, PRE-WROTE THE MEDICATIONS AND DR. SMITH WOULD SIGN THEM

• HE BECOMES EMOTIONAL AND TELLS AGENTS “PLEASE, I DON’T WANT TO DIE IN PRISON, I HAVE CANCER.” AGENTS TELL HIM TO REVEAL ALL HE KNOWS ABOUT PAT AND HE WILL NOT BE CHARGED.



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ROCKY THE MEDICAL ASSISTANT• ROCKY HAS A HISTORY OF A DEFERRED COCAINE POSSESSION AND A

MARIJUANA CHARGE WITH TWO DRIVING WHILE INTOXICATED ARRESTS• BECAUSE HIS ATTORNEY OBTAINED DEFERRED ADJUDICATION ON THE

DRUGS, ROCKY HAD EXPUNGEMENTS ON THE DRUG CHARGES THAT DID NOT SHOW UP ON A BACKGROUND CHECK. HE ALSO HAD ONE OF THE TWO DWI’S DISMISSED. THIS MADE HIM HIREABLE.

• HOWEVER, ROCKY HAS HAD A TASTE OF COUNTY JAIL AND IS TERRIFIED OF GOING TO PRISON

• AGENTS TELL HIM HE HAS HIT THE BIG TIME NOW BEING A PART OF CONSPIRACY TO RUN A PILL MILL AND COULD DO FEDERAL TIME



ROCKY TELLS ALL

• ROCKY, FILLED WITH TERROR, TELLS OF DRUG PRESCRIPTIONS FLOWING LIKE WATER AND THAT PATIENTS ALL SEEMED TO HAVE CHRONIC PAIN AND WANTED “THE GOOD STUFF”. THEY WOULD DRIVE IN MILES TO SEE “DR. PAT” AND GRANDFATHERLY “DR. SMITH”

• He swears he just did their bidding, prepared the scripts by writing in Soma, Lortab and Xanax at the same doses for everyone

• Agents tell Rocky to close down the clinic, bring Dr. Smith in the room and tell him he is to go home.

• Both are wet with relief and leave with dire warnings for them to not leave the county



THINGS JUST GOT WORSE

• A HAND DELIVERED LETTER AWAITS HER WITH THE STATE BOARD OF NURSING LETTERHEAD WHICH SAYS THAT SHE IS IMMEDIATELY SUSPENDED FROM THE PRACTICE OF NURSING BECAUSE OF HER BEING A “PRACTITIONER THAT CAN CAUSE IMMINENT HARM TO THE PUBLIC” AND FACES OTHER GRAVE ALLEGATIONS



THE PLOT THICKENS

• SHE IS TO SURRENDER HER LICENSE AND MAY HAVE A HEARING ON THE SURRENDER. SHE IS STUNNED. NOT ONLY IS SHE FACING FEDERAL DRUG TRAFFICKING CHARGES BUT THE BON HAS JUST TAKEN AWAY HER LIVING. ALL IN LESS THAN 48 HOURS. THEY ALSO HAVE SEIZED HER PHONE, LAPTOPS AND HAVE ALREADY SEARCHED HER HOME AND EVEN TOOK HER CHILD’S LAPTOP FOR SCHOOL WITHOUT HER KNOWLEDGE.



The Civil Lawsuit

• The Civil Suit is from Smingleberry and Smingleberrywho are well-known to her from commercials every 10 minutes on television.

• The lawsuit alleges negligent medical and nursing practice by she and Dr. Smith. Both are being sued and alleges among other things that she purposely gave narcotic and sedative medication without individualizing treatment. Further that the firm represents dozens of people who are addicted, overdosed and one who is in critical condition due to an overdose on drugs prescribed by she and Dr. Smith.JOIN THE CONVERSATION:

CALL JOE ANY TIME AT 361-887-8670 OR e-mail his assistant

[email protected].

WE THINK OF THE OPIOID CRISIS IN TERMS OF THE PATIENT BUT WE MUST ALSO THINK ABOUT OUR PRACTICE

• YOU WILL LEARN ABOUT THE ENTIRE JUSTICE SYSTEM INCLUDING:

• CRIMINAL JUSTICE• CIVIL PROCEEDINGS ON A MEDICAL

MALPRACTICE AND PERSONAL INJURY CASE• THE BOARD AND HOW A HARD-WON LICENSE

AND NP CERTIFICATION CAN BE QUICKLY LOST OR RETAINED



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CRIMINAL AND CIVIL LAW

• CRIMINAL AND CIVIL ACTIONS: FUNDAMENTALS FOR THE APRN

• THE TEXAS NURSING AND MEDICAL BOARD AND THE NPDB



THE NURSE BEING CHARGED WITH A CRIMINAL OFFENSE• Do Not Say Anything Without a Lawyer• Better to be in a cold cell for a few hours than for 30

years• DEA AND OTHER AGENCIES ARE SEEING PEOPLE WHO

PRESCRIBE AS POTENTIAL DEALERS OF NARCOTICS AND WHO DISTRIBUTE THESE MEDICATIONS WITHOUT THERAPEUTIC VALUE

• RED FLAGS: CASH CLINIC, COMBINING BENZOS WITH LORTAB AND SOMA

• PRE-SIGNED SCRIPTS• EVEN IF YOU DO NOT PRESCRIBE YOUR

DOCUMENTATION MAY SAY IT ALLJOIN THE CONVERSATION: CALL JOE ANY TIME AT 361-


EXERCISE IN THE LAW

• LET’S DO AN EXERCISE IN THE REAL PRACTICE OF LAW USING OUR CIVIL AND CRIMINAL EXAMPLES

• WE NEED SOME OF THE AUDIENCE TO HELP US OUT.

• WE NEED A JUDGE, JURY AND ATTORNEYS



WHAT ABOUT CIVIL LITIGATION?THE ANATOMY OF A LAWSUIT• BEING NAMED IN A LAWSUIT AND BEING SUED

IN CIVIL COURT CAN BE DEVASTATING TO A NURSE’S PSYCHE AND CAREER

• APN’s and CNS’s ARE INCREASINGLY BEING GIVEN MORE RESPONSIBILITY AND THEREFORE FACING MORE EXPOSURE OF BEING SUED AND HELD INDIVIDUALLY RESPONSIBLE FOR NEGATIVE PATIENT OUTCOMES

• THE DAYS OF NOT CARRYING YOUR OWN MALPRACTICE INSURANCE ARE OVER



THE ANATOMY OF A CIVIL LAWSUIT

• PRE-SUIT NOTICE• THE LAWSUIT • THE TRIAL



PRE-SUIT NOTICEREMEMBER OUR APRN?• IF SUED SHE WOULD RECEIVE NOTICE BY SERVICE.

UNDOUBTEDLY SHE IS FIRED OR OUT OF BUSINESS AND HER LICENSE IS SUSPENDED

• SHE SHOULD NOTIFY HER INSURANCE CARRIER• THE APRN SHOULD AT LEAST GO SEE AN EXPERIENCED

MED MAL DEFENSE ATTORNEY FOR A CONSULT• SHE ALSO NEEDS INSURANCE FOR THE REPORT TO

THE BON AND NEEDS TO NOTIFY THE INSURANCE IMMEDIATELY



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SHOULD OUR APRN HAVE INSURANCE? • YES• YES• AND YES!• WHY? YOU HAVE YOUR OWN ATTORNEY. MOST

POLICIES COVER COST OF DEPOSITIONS AND PAY FOR YOUR ATTORNEY ON CASES OF ALLEGED NEGLIGENCE

• INCREASINGLY THE INSTITUTION LIKE A HOSPITAL AND A NURSE MAY END UP ON OPPOSITE POINTS OF VIEW AND THE NURSE IS SEEN AS AN AGENT OF THE INSTITUTION BY THE HOSPITAL LAWYER

• THE INSTITUTION’S INSURANCE POLICY PAYS THE LAWYER, NOT THE NURSE

• DOCTORS AND CLINICS ARE WATCHING OUT FOR NO.1JOIN THE CONVERSATION: CALL JOE ANY TIME AT 361-


DISCUSSIONS ABOUT THE LAWSUIT• THE APRN WOULD BE ADVISED BY A LAWYER

NOT TO DISCUSS THE CASE WITH ANYONE. • THE APRN IS A PERCEIVED THREAT TO THE

PRACTICE AND THE COLLABORATING AND AGING M.D. IS IN DAMAGE CONTROL MODE AND LISTENING TO HIS ATTORNEY AND HAS HIS OWN PROBLEMS.

• AND THE EX EMPLOYEE MEDICAL ASSISTANT IS SEEN AS A LOOSE CANNON



MEDIATION AND ALTERNATIVE DISPUTE RESOLUTION• Typically, at some point during the discovery process

and before a trial takes place, the court may order the case to mediation in an effort to settle the case.

• Mediation is a nonbinding process in which an independent third party, the mediator, acts to facilitate settlement of the lawsuit.

• Typically, mediation may take a half to a full day and requires the attendance of all parties and lawyers, the mediator, and any insurance representative having authority to settle.

• ARBITRATION is a binding process that can be in the form of a mini-trial or a type of binding resolution. Frequently health care institutions are enforcing binding arbitration in many jurisdictionsJOIN THE CONVERSATION:


[email protected].

REMEMBER: GOING TO TRIAL IS

RISKY

• THE TRIAL • Trial of a lawsuit is an extremely demanding

undertaking, not only on the part of the lawyer, but also on the part of the nurse.

• It can be emotionally, physically, and psychologically exhausting, often requiring the nurse's complete and undivided attention to the exclusion of all else.

• The trial phase of the litigation process may take several years after a lawsuit is filed before it is begun.

• Preparing for trial can be a time consuming process because a trial date often cannot be firmly established.

• Nonetheless, when trial on a given date is possible but uncertain, both the nurse and the lawyer must adequately prepare



APPELLATE REMEDIES

• EVEN IF ONE SIDE WINS AT TRIAL THE OTHER SIDE MAY APPEAL

• POST-JUDGMENT SETTLEMENTS CAN BE REACHED

• YEARS MAY GO BY…THEREFORE, MOST CASES SETTLE BEFORE TRIAL BECAUSE OF THE UNCERTAINTY OF WHAT TWELVE PEOPLE IN A BOX WILL DO



SUMMARY OF CIVIL LITIGATION

• NO ONE KNOWS WHAT 12 PEOPLE IN A JURY BOX ARE GOING TO DO

• TWISTS AND TURNS OF CIVIL LITIGATION ARE MANY

• NO MATTER HOW IRONCLAD A CASE YOU THINK YOU HAVE, A SMART LAWYER CAN WATER YOUR CASE DOWN

• THE MEDIA HAS BRAINWASHED THE PUBLICJOIN THE CONVERSATION: CALL JOE ANY TIME AT 361-


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WHAT IF AN APRN IS REPORTED TO THE BOARD

• LET’S USE OUR APRN EXAMPLE• LET’S USE A REAL LIFE SCENARIO SIMILAR TO

OURS THAT IS NOW A MATTER OF PUBLIC RECORD

• ALTHOUGH THIS EXAMPLE MAY SOUND EXTREME YOU MAY BE SURPRISED TO KNOW THAT PAIN MANAGEMENT IS ONLY ONE OF THE PRIME AREAS FOR THE BON



THE BON:FIRST THINGS FIRST:

SAFEGUARD YOUR PRACTICE

BON MISSION:To Protect and Promote the

welfare of the people of Texas by ensuring that each nurse licensed

in Texas practices safely

WHO IS THE BON?

• 13 members• Representing LVN’s and RN’s• 300,000 plus nurses in Texas• BON meets quarterly and Meetings are

open to the public• Hobby Building in Austin• 95 staff members



IMPORTANT AUTHORITY

• NPA is the law that regulates nursing and it defines the duties of LVN’s and RN’s

• Gives the BON Authority• Texas Occupations Code Chapter 301(NPA), 303 (Nurse

Peer Review), 304 Nurse Licensure Compact, 305 APN Compact

• Texas Administrative Code (TAC) Title 22 Chapter 211 Licensing/Practice/Admin Law



CRITICAL RULES• LVN SCOPE OF PRACTICE 217.11(A)• RN SCOPE OF PRACTICE 217.11(3)• APRN SCOPE OF PRACTICE 217.11(4)• Supervision and Delegation 217.11(1)(U) and (S)• “Owning Your Practice” 217.11(1)(T) Safe Harbor and

Accepting Assignments• Clarify Orders 217.11(1)(N)• Mandatory Reporting 271.11(1)(K)• The Most Trusted Profession 217.11(1)(J)• Document: Remember to Write it Down 217.11(1)(D)• Know and Follow the Laws that apply to your practice 217.11(A)(1)



ETHICS FOR NURSES: TRUST

• Nurses 81%• Pharmacists 71%• Physicians 66%• Police Officers 57%• Bankers 23%• Lawyers 17%• Congress 9%



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NURSES (APRN’S) HAVE POWER

• Access to Personal Info• People at their Most Vulnerable put their trust in

Nurses• Diagnose, Prescribe and Treat• Good Professional Character Rule 213.27• Professional Boundaries: Finances, Sexual

Misconduct, Social Media, Physical, Emotional or Verbal Abuse



Violations of Nursing Ethics including Lying/Cheating and Stealing

• Rule 217.2• Unprofessional Conduct and Sanctions• Unsafe Practice• Misconduct• Unlawful Practice• Drug related actions or conduct



BON NURSE DECISION MAKING MODEL (source Texas Board of Nursing: Protecting Your Patients and Your Practice

• Question 1: Is the activity consistent with NPA, Rules and Regs and Board Position Statements?

• Question 2: Is the activity appropriately authorized by valid order and in accordance with established policies and procedures?

• Question 3: Is the act supported by either research reported in nursing and health-related literature or in scope of practice statements?

• Question 4: Do YOU personally possess current clinical competence to perform the task safely

• Question 5: Would a reasonable and prudent nurse perform this activity in this setting?

• Question 6: Are you prepared to assume accountability for the provision of safe care and the outcome of the care rendered?JOIN THE CONVERSATION:


[email protected].

RELEVANT REGULATIONS OF NURSING TO REMEMBER• License Requirements: Subchapter F Sec 301.251-262• License Renewal: Subchapter G, Sec. 301.301-306• Practice by License Holder: Subchapter H, Sec. 301.351-356• Reporting Violations: Subchapter I, Sec 301.401-419• Prohibited Practices and Disciplinary Actions: Subchapter J, Sec.

301.451-471• Corrective Action Proceeding: Subchapter N, Sec. 301.651-657• Nursing Peer Review: Chapter 303.001-011



Most Common Types of Charges Nurses Face• Healthcare Fraud • Medicare/Medicaid/ Federal Health Care Reimbursement • Insurance Fraud • Theft & Embezzlement • Drug Diversion • Drug Possession, Manufacturing & Delivery • Obtaining a Controlled Substance by Fraud and Deceit • Driving While Intoxicated • Intoxication Assault • Intoxication Manslaughter • Assault to a Patient• Homicide (serial killer nurses)

JOIN THE CONVERSATION:

CALL JOE ANY TIME AT 361-

887-8670 OR e-mail his assistant

[email protected].

BON LICENSE HEARING: APRN RISK MANAGEMENT EDUCATION

• WHAT IF YOU ARE REPORTED TO THE BON?



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WHAT IS A BON COMPLAINT AND A SOAH HEARING• You can ask for a hearing to fight for your

suspended license but it’s tough• Informal Conference? There is nothing

informal about it• What is SOAH• What if our APRN says she’s innocent and

will not take a 5 year revocation?JOIN THE CONVERSATION: CALL JOE ANY TIME AT 361-


ENTER SOAH

SOAH DOCKET NO 16-55555

BON ( STATE OFFICE PETITIONER ( OF VS ( ADMINISTRATIVEIMA GOOD, APRN ( HEARINGSTHE RESPONDENT (



SAMPLE PROPOSAL FOR DECISION IF OUR

APRN GETS HAMMERED

• PROPOSAL FOR DECISION

• The staff (Staff) of the Texas Board of Nursing (Board) seeks to revoke the

nursing

• licenses] of (Respondent) because she allegedly violated the standards of

• nursing practice by continually prescribing controlled substances in a non-

therapeutic manner.

• After considering the evidence and the applicable law, the Administrative

Law Judge (ALl)

• concludes that Staff met its burden of proof by a preponderance of the

evidence. Accordingly,

• the ALJ recommends that the Board revoke Respondent's licenses and that

Staff be awarded

• costs of the contested case proceeding, as requested.



ALLEGATIONS• Staffs Forma1 Charge document identifies only a single charge, asserting that between• December 16, 2013, and February 5, 2015, while practicing as a nurse practitioner and owner of• The NP Care Clinic (the Clinic) in Anywhere, Texas, Respondent's practice fell below the• minimum standards of practice because she repeatedly prescribed dangerous cocktails of drugs

to• patients without regard to therapeutic benefit, without an individual assessment of each patient,• and without developing an appropriate treatment plan for each patient.4 More specifically,• Respondent a11egedly wrote 9,309 prescriptions for the "cocktail" drugs of hydrocodone, Soma,• and/or aprazolam, often in the maximum strength and quantity available• Respondent was able• to do this because she operated a pain management clinic and had prescriptive authority in her• role as a licensed nurse, specifically an advanced practice registered nurse (APRN). The

collaborating physician signed the Lortab portion of the cocktail on a separate triplicate prescription pad.



The BON Language that is a challenge to fight• Staff asserts that Respondent should be disciplined for violating numerous provisions

of• the Board's rules, specifically 22 Texas Administrative Code §§ 217.11 (1 )(A), (B),

(C), and (4);• 217.12(1)(A) and (B), and (4); 221.13 (a); and 222.8(a) and (b)(2)-(3). • Under the Nursing Practice Act,6 the Board is authorized to take disciplinary action

against a nurse for numerous reasons, including that the nurse: • (l) committed a violation of the applicable statutes, rules, or a• past order of the Board;• (2) has engaged in "unprofessional or dishonorable conduct that, in the• [B]oard's opinion, is likely to deceive, defraud, or injure a patient or the public, or • (3) failed to "care adequately for a patient or to conform to the minimum standards

of acceptable nursing practice in a manner that, in the [B]oard's opinion, exposes a patient or other person

• unnecessarily to risk of harm.JOIN THE CONVERSATION: CALL JOE ANY TIME AT 361-


Sample Nurse Practice Act and Occupational Code Violations• Tex. Occupations Code § 301.001 et seq• Tex. Occupations Code § 301.452(b)(l).• Tex. Code § 301.452(b)(10).• Tex. Occupations Code § 301.4S2(b)(13).• 22 Tex. Admin. Code § 217.l1(l)(A).• 22 Tex. Admin. Code § 217.11(1)(8).• 22 Tex. Admin. Code § 217.11(l)(C).



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Dr. Jay Zee the BON’s expert weighs in…• Testimony of Dr. Jay Zee• Dr. Jay Zee testified only at the hearing on the merits. • Dr. Zee is licensed as a registered nurse (RN) and an APRN, and has earned a Ph.D.

in public policy and administration.• He has been licensed as a nurse in Texas for 16 years. Dr. Zee testified in two parts

during the• hearing. • First, He offered testimony that identified the applicable rules defining the scope and

standards of practice for RNs and APRNs, and discussed how they limited and defined a licensee's practice.

• Second, Dr. Jay Zee testified as to the nature of Respondent's alleged violations and the sanction that Staff determined was appropriate for Respondent's conduct. I

• In particular, Dr. Zee testified to the following opinions……



Dr. Jay Zee tears into the APRN

• Respondent violated Rule 222.8(b)(2) by failing to properly demonstrate that she consulted with a delegating physician before writing prescriptions for controlled substances beyond 90 days;

• Respondent is subject to discipline by the Board under Rule 222.10(a)(3) for• failing to properly assess patients and document the assessments prior to prescribing controlled

substances for those patients;• Respondent violated Rule 221.13 (the Core Standards for APRNs) by failing to know and conform

to the Rule 222 standards for prescriptive authority of APRNs, including a failure to be aware of and follow the requirement for physician consultation for prescriptions beyond 90 days and a failure to work collaboratively with her delegating physician and other pain experts;

• Respondent violated Rule 217.11 (1 )(A)-(C) and• by failing to know and conform to the nursing practice standards, • by failing to promote a safe environment for clients (by putting them at risk through her

continued prescription of controlled substances without adequate assessments and efforts toward more conservative care),

• and by prescribing medications without due regard for their effects on the patients, among other things;



Dr. Jay Zee, the BON nursing expert continues…• Dr. Jay Zee also pointed out that: • Respondent violated Rule 217.12(1 )(A) and (B) by carelessly failing, repeatedly failing, or

exhibiting an inability to perform her nursing duties in conformity with the minimum acceptable level of nursing practice set out in Rule 217.11

• and by carelessly or repeatedly failing to conform to generally accepted nursing standards in applicable practice settings (by prescribing medications without therapeutic benefit, without the necessary evaluation, and without due regard for their effects on the patients).

• Respondent violated Texas Occupations Code § 301.4S2(b), by failing to care adequately for a patient or to conform to the minimum standards of acceptable nursing practice in a manner that, in the board's opinion, exposes a patient or other person unnecessarily to risk of harm (by prescribing medications without therapeutic benefit, without the necessary evaluation, without proper documentation,

• and without due regard for their effects on the patients, among other things).• Respondent violated Texas Occupations Code § 301.4S2(b) by committing unprofessional or

dishonorable conduct that, in the Board's opinion, was likely to deceive, defraud, or injure a patient or the public (for the conduct described above);2J and, finally

• Respondent violated Texas Occupations Code § 301.4S2(b) by committing the• violations listed above. JOIN THE CONVERSATION:


[email protected].

The Plot thickens…• During testimony by BON expert Dr. Jay Zee it is revealed that at

least two prescriptions that were made out by the pain clinic got into the wrong hands and at least one led to a child overdosing and having an anoxic event leading to a vegetative state. The family has lawyered up and the media are having a feeding frenzy.

• It’s election season and the D.A. is under pressure to prosecute the first case of an overdose caused directly or indirectly by a prescription.

• The APRN is already being accused or running a pill mill and the DEA is contemplating criminal charges if they can improve intentional prescriptions being written for pure profit and not therapeutic value.

• Counsel for the APRN objects and is overruled!JOIN THE CONVERSATION: CALL JOE ANY TIME AT 361-


Dr. Jay Zee concludes…

• For these violations, Dr. Jay Z applied the Board's disciplinary matrix found in Rule 213.

• In summary, Dr. Jay Z concluded that Respondent's actions were either second-tier or third-tier offenses (the most serious) presenting a serious risk of harm or death.

• He acknowledged that there was no showing of actual harm on two of the cases , so not all classifications were based solely on the risk of harm but actual harm. He analyzed the sanction levels and the mitigating and aggravating factors and concluded that revocation of Respondent's licenses was the appropriate sanction .



The BON is just getting warmed up! Enter Dr. Drey…• Dr. Drey is board-certified in anesthesiology and has, in the past,

operated an interdisciplinary pain management clinic. • He testified as an expert on the standard of care in pain

management, which is based upon what a reasonable and prudent medical professional would do in the same or similar circumstances, based on the evolving body of literature in the field.

• Although Respondent is a nurse, Dr. Drey testified that the standard of care applicable to Respondent is no different than would apply to a doctor or other professional prescribing medications for pain and anxiety



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Dr. Drey’s Written Opinion…

• Dr. Drey reviewed ten of Respondent's patient files in preparation for testifying. • He testified that Respondent violated the standard of care in regard to all ten patients. • In essence, he had the same concerns with each patient's file:• Respondent failed to conduct adequate patient examinations and do proper drug or other

screening to ensure the patients were not simply engaged in drug-seeking behavior and did not have drug issues;

• Respondent failed to develop individualized treatment goals for each patient;• Respondent failed to properly assess the patients fully to ensure that more conservative care was

attempted before simply resorting to medication;• Respondent wrote the maximum prescriptive dosages of pain medications for the patients;• Respondent failed to obtain full prior medical records before prescribing pain medications for the

patients; and,• Respondent failed to properly monitor the patients after they were placed on pain medications, to

measure the efficacy of such treatment



Dr. Drey, the BON’s Expert Anesthesiologist Concludes…• In Dr. Drey's opinion, each of the items above reflects a violation of

the standard of care. Based on his review of the prescription data report generated and his review of the patient files,

• Dr. Drey testified that Respondent's practice at the Clinic was consistent with features of a pill mill.

• The vast majority of the prescriptions written by Respondent were for combinations of hydrocodone and Soma, and sometimes other drugs, which Dr. Drey referred to as the POWERFUL “Houston cocktail drug mixture” of Soma, Xanax and Lortab.

• The mixture of the drugs is widely known to cause a feeling of euphoria and a “high” much like Heroin.



Based on All of This What Would You Do to Defend This APRN from Revocation and Jail? Lawsuits?

• Much tougher cases are fought against the BON

• Your Job as an attorney is a sworn oath to advocate zealously for your client within ethical bounds

• The situation may seem hopeless but it is your job to find the chink in the armor



First things first..

• Although the licenses and certifications are important the freedom of the APRN is most important

• No APRN will ever be able to practice with felony drug trafficking charges

• A good advocate reaches out to federal agents and extends an olive branch or at least find out where they are heading…JOIN THE CONVERSATION:


[email protected].

A good lawyer for an APRN…

• A good lawyer asks for all of the records, asks for more time or a continuance,

• Retains experts to refute the expert opinions of the BON”s experts and hits them hard for being bought and paid for “hired guns” who do nothing but testify for the BON

• A good lawyer investigates the RX fraud claims and reports made by the NP to offer mitigating evidence that there was prescription theft and that the thousands of scripts were not given by the APRN or Dr. Smith



An Example of Testimony in Real Life• Testimony of Agent Beyonce (Probable Cause Hearing Only)• Cathy Beyonce testified at the probable cause hearing. • Ms. Beyonce is a Case Support Specialist for the Texas Department of Public Safety (DPS). Ms.

Beyonce testified to the volume of prescriptions written using Respondent's unique license number.

• Ms. Beyonce admitted that she had no way of knowing if Respondent actually wrote the prescriptions or if they were fraudulently written by others. She simply knew the number of prescriptions reflected in the DPS database as having been written using Respondent's unique license number.

• In total, there were 9,309 prescriptions of pain medications between December 2013 and February 2015 written using Respondent's license number.

• Specialist for DPS Beyonce indicated that any nurse practitioner or medical doctor can review their prescriptive license report at any time on line to see who is writing scripts. She also testified that with the opioid epidemic in America that a reasonable, ordinary, prudent nurse practitioner would ascertain if there was abuse or misappropriation of the prescriptive authority and follow up on each criminal report.



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A good attorney for the APRN hammers away…• A good attorney keeps on the attack while

looking for a reasonable offer short of revocation• What does the LVN and RN license have to do

with the alleged scripts? Nothing.• What trouble did the APRN’s license for LVN or

RN ever have? Nothing? Why should those licenses be suspended or revoked?



Furthermore, the lawyer for the

APRN should…

• Advocate zealously by not only destroying

the credibility of the BON’s experts but

• Also delve into all of the prescriptions and

attack the fact that out of thousands of

charts only 10 were reviewed by Dr. Drey

• Dr. Drey is not qualified to judge an APRN

because he is an anesthesiologist



Realistic Resolution• The APRN must at some point admit that the responsibility of

watching out for prescription fraud is hers as well as DPS/DEA or CMS or other agencies

• An APRN owns their practice• Offer Mitigating Evidence and Voluntarily surrender for one year on

the APRN if cornered but ask to work as an RN/LVN under conditions in order to safeguard the public while not throwing out the baby with the bath water

• Argue that “pill mills” and “opioid epidemic” terminology and media and political frenzy is relatively new and that for 2 decades this was a common practice. Once Lortab became schedule II, our APRN stopped prescribing it.



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8/11/18 · 8/11/18 3 rocky the medical assistant •rocky has a history of a deferred cocaine...

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