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Oct 23, 2017

Important Information Regarding Senate Bill 202 and the Texas Medical Board’s Recent Fingerprint Background Check of its Licensees.

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In the fall of 2015, Senate Bill 202 transferred certain licensing programs that were formerly administered by the Texas Department of State Health Services (DSHS) to the Texas Medical Board (TMB).  These programs included:  respiratory care practitioners, medical radiologic technologists, medical physicists, and perfusionists.   As to be expected, there was a transition period involved with this transfer, including development of new rules for each of these programs by the TMB.  Due to this transition, not all of the requirements under the bill were realized promptly.  One of those requirements was a fingerprint background check of these licensees by the TMB.  Beginning in January 2016, however, the TMB began scheduling and processing the registration/renewal of existing licenses/permits and started to perform a fingerprint background check; a check that was required to be completed prior to registration/renewal.   As a result, many licensees under these respective programs who had been practicing for a significant period of time while under the auspices of the DSHS, and who possessed criminal histories, but had never before been alerted to that fact by the predecessor agency (TDHS), began receiving disciplinary action notices from the TMB alerting them that the TMB had initiated a complaint and investigation against them in regard to their criminal histories.  To many, including the firm’s clients, this was unsettling.  Thus, many of these licensees who had been practicing and who had long forgotten their criminal histories were now forced to revisit events in their past with the serious realization that it could impact their ability to practice.  

Because these cases oftentimes deal with the application of new licensing rules, some of which have only been recently promulgated by the TMB as it relates to these license programs, a careful review of these rules must be analyzed to determine applicability (or, as the case may be, the potential for retroactive application or lack thereof) and the strength or weakness of the TMB’s complaint if pursued based on a licensee's criminal history.  Setting aside the legal arguments that may exist, which is important, licensees should realize that the lapsed time period from the criminal event to today may play a significant role in determining outcomes in a Board complaint and that this important consideration and the factors that may be present in that licensees case would need to be carefully reviewed and, where possible, highlighted in a manner that would best advance the licensee’s position and case in the TMB investigation, especially in an Informal Settlement Conference setting.  One such case handled by the firm for an affected licensee saw that the TMB had opened up a complaint and investigation for criminal conduct that occurred over two decades ago, a time period that predated this individual’s obtainment of a license.  These cases, like many that the firm has seen, are not atypical and they are reflective of the current attempt by the TMB to ensure that those it licenses can viably remain licensed.  When a situation like this occurs, it is best to contact experienced counsel for assistance.

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