Disciplinary Actions against
Andrew Campbell, M.D.

Stephen Barrett, M.D.


Andrew W. Campbell, M.D., medical director of the Medical Center for Immune &Toxic Disorders in Spring, Texas, was prone to conclude that patients who consult him are suffering from allergic disorders related to "toxic mold" exposure. In 2001, at a hearing held by the Texas Department of Insurance, he testified that his center was seeing 50 such patients per week. As a result, he has been disciplined once and is now facing more charges.

The Texas Medical began investigating Campbell in 2001 and began charging him with wrongdoing in 2004. The first amended complaint, shown below, accused him of (a) performing inadequate history and physical examinations, (b) ordering excessive and unnecessary laboratory tests, (c) failing to maintain records that were adequate to justify what he did, and (d) submitting insurance claims forms that were misleading and/or fraudulent.

In 2006, the Texas Board filed a second amended complaint that provided more details about his care of the patients listed below. The amended complaint stated that in each of these cases, he had "relied on junk science," ordered inappropriate tests, and improperly diagnosed "toxigenic mold exposure." The Administrative Law Judge's report provides additional details.

Additional information about Campbell's practices and fees were revealed in two reports by a Vaccine Court special master who denied petitions former patients who sought compensation for an alleged vaccine injury. One report indicated that Campbell charged $12,123 for the first visit and about $47,000 more for about 16 more visits plus intravenous treatments between 1999 and 2002. The other report did not state the cost of visits in 1997 and 1998 but describes fees totaling more than $30,000 between 1999 and 2002.

In June 2007, the Texas Board upheld the second amended complaint and issued an order. Campbell then appealed to the local district court, which ordered the Board to lessen its penalties. In response, in November 2009, the Board entered a Final Order reprimanding Campbell and suspending his medical license for eight months, after which his practice must be monitored for five years. It also ordered him to (a) take 25 hours of continuing medical education in the legal obligations that accompany the physician/patient relationship, (b) take 25 hours of CME in the standard of care on the use of new techniques or medications and/or the new uses of existing techniques or medications, and (c) pay an administrative penalty of $64,000 plus $8,396.50 for transcription costs. While the appeal was taking place, the Board filed another complaint that accused Campbell of misdiagnosing and mistreating seven more patients.

In August 2011, Campbell was charged with inappropriate treatment of eight more patients whom he had treated for chronic pain. In November 2011, the pending complaints were resolved by voluntary surrender of his medical license. The surrender order states that he can apply for reinstatement one a year. If he does, however, I doubt that he will succeed.


HEARING CONDUCTED BY THE
TEXAS STATE OFFICE OF ADMINISTRATIVE HEARINGS
SOAH DOCKET NO. 503-04-5717
LICENSE NO. G-7790

IN THE MATTER OF THE

COMPLAINT AGAINST:

ANDREW WILLIAM CAMPBELL, M.D.

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BEFORE THE

TEXAS STATE BOARD OF

MEDICAL EXAMINERS

FIRST AMENDED COMPLAINT TO THE HONORABLE TEXAS STATE BOARD OF MEDICAL EXAMINERS AND THE HONORABLE ADMINISTRATIVE LAW JUDGE TO BE ASSIGNED:

COMES NOW, the Staff of the Texas State Board of Medical Examiners (“the Board"), and files this First Amended Complaint against Andrew William Campbell; M.D., (“Respondent"), based on Respondent's alleged violations of the Medical Practice Act ”the Act"), TEX. OCC. CODE ANN., Title 3, Subtitle B, Chapters 151–165 (Vernon's 2004), and would show the following:

I. Introduction

The filing of this Complaint and the relief requested are necessary to protect the health and public interest of the citizens of the State of Texas, as provided in Section 151.003 of the Act.

II. Legal Authority and Jurisdiction

Respondent is a Texas Physician and holds Texas Medical License Number 0-7790, issued by the Board on June 9, 1985, which was in full force and effect at all times material and relevant to this Complaint. All jurisdictional requirements have been satisfied.

III. Procedural Background

1. The Board received information that, Respondent' may have violated the Act. and, based on that information, conducted an investigation. The investigation compiled evidence that support allegations of a violation.

2. Respondent was invited to attend an Informal Show Compliance Proceeding and Settlement Conference ("ISC"), held on September 16, 2002, which was conducted in accordance with §2001.054(c), GOV'T CODE and §164.004 of the Act. The Board representatives reviewed and considered evidence from the investigation, as well as any information presented by Respondent. They determined that Respondent had not shown compliance with all requirements of the Act.

3. In an attempt to resolve this matter informally, the Panel offered Respondent a proposed Agreed Order, setting forth certain terms and conditions. Respondent failed and/or refused to agree to the proposed settlement offer and no agreement to settle this matter has been reached by the parties.

IV. Factual Allegations

Board Staff has received information and on that information believes that Respondent has violated the Act. Based on such information and belief, Board Staff alleges:

Allegation #1–Patient G.F.

1. On October 25, 1993, Respondent treated Patient G. F. Patient G.F. for exposure to paint fumes while removing epoxy paint with a grinder. G.F. also reported previous exposure to asbestos and that he had worked at a nuclear power plant.

2. . Due to G.F.'s history of exposure, Respondent ordered and performed an extensive battery of tests. Respondent diagnosed G.F. with polyneuropathy, chemical exposure, and Raynaud's Syndrome.

3. On July 21, 2000, G.F. returned to see Respondent complaining of blackouts, increased fatigue, lack of energy, low back pain and bilateral elbow discomfort, diarrhea, shortness of breath, dry eyes, ringing of the ears, headaches, occasional heart palpations and chest pain. Respondent diagnosed chemical exposure, fatigue, shortness of breath (SOB), cough, severe muscular weakness, and abnormal reflexes.

4. Respondent performed numerous tests, including Sensory Nerve Conduction Study, Flow Cytometry, Fluorescent Antibody Titer, and Lymphocyte Transformation, Mitogen or Antigen induced blastogenesis. Respondent ordered this excessive diagnostic testing on July 21, 2000 without adequate medical justification. This testing was excessive and not within the standard of care.

5. Respondent's billing for the excessive diagnostic tests was improper, unreasonable, for services not medically or clinically necessary, and a violation of Section 311.0025 of the Texas Health and Safety Code, which provides that a health care professional may not submit to a patient or a third party payor a bill for a treatment that professional knows was not provided or knows was improper, unreasonable, or medically or clinically unnecessary.

6. Respondent failed to maintain adequate medical records to justify the necessity of the above listed evaluations, testing, referrals, treatment, and/or billing.

7. This practice of ordering excessive and marginal tests without. medical support is inconsistent with public health and welfare, represents non-therapeutic prescribing, and flagrant or persistent over-treating and over-charging, which is unprofessional. This is also below the standard of care.

Allegation #2–Patient T.A.

1. On January 3, 2001, Respondent evaluated Patient T.A., a minor. T.A. had a significant medical history of sinus problems, nosebleeds, reactive airway disease, headaches, cough, colds, vomiting, difficulty recalling simple things, hard time sleeping, fatigue, SOB, temper, and asthma, and mold allergy. Respondent ordered extensive testing.

2. In February 2001, Respondent ordered another series of extensive testing for T.A. This testing includes neurophysiological testing by Brain Stem Auditory Evoked Response (BAER) and Visual Evoked Potential (VER), serum protein electrophoresis, an MRI of the brain, and IVIG. In February 2001 Respondent diagnosed immune mechanism disorder, mycosis, and polyneuropathy-nonspecific.

3. On March 6, 2001, the patient underwent an MRI, which was interpreted as normal.

4. On May 29, 2001, Respondent examined the patient again. The diagnoses were cough, fatigue, headaches, memory loss, sleep disturbance, blurred vision, and abnormal BAER. Respondent ordered an EEG, BAER, NK cell activity, T&B cell function and T-helper/suppressor ratio.

5. Respondent failed to perform simple diagnostic testing prior to ordering extensive and inappropriate testing. The tests that were performed were improper and not indicated based on medical history or physical exam. The billing for medical services from January 3, 2001 to May, 2001 is excessive. This was not within the standard of care.

6. Respondent's billings for the excessive evaluations, excessive diagnostic tests, and consultations were improper, unreasonable, and/or for services not medically or clinically necessary, and a violation of Section 311.0025 of the Texas Health and Safety Code, which provides that a health care professional may not submit to a patient or a third party payor a bill for a treatment that professional knows was not provided or knows was improper, unreasonable, or medically or clinically unnecessary .

7. The bills submitted by Respondent were unbundled. "Unbundling" is a well-recognized method of filing for reimbursement and an unlawful practice in which separate charges are submitted for multiple procedures, which are normally performed together and billed as a single procedure.

8. Respondent improperly used Current Procedure Terminology (CPT) codes for services rendered by using incorrect or improper codes based on level of service rendered or performed.

9. Ordering excessive and marginal tests without medical support is inconsistent with public health and welfare, and represents non-therapeutic prescribing, treatment and flagrant or persistent over treating and overcharging, which is unprofessional. This is also below the standard of care.

Allegation #3–Patient K.A.

1. Respondent examined Patient K.A. on January 25, 2001. A 21-page Immune Dysfunction Questionnaire was completed on December 26, 2000.

2. K.A.'s medical history included nosebleeds, sinus problems, severe headaches, and neck pain since 1994. A neurology consult in 1994 included an MRI of the brain and CT scan, which were negative. K.A. complained of fatigue, memory problems, headaches, hair loss, depression, anxiety/mood swings, sharp pain in upper right quadrant, and chest tightness.

3. Respondent's performed a battery of tests that were not indicated for the patient's symptoms. The testing and the symptoms are insufficient to support a diagnosis.

4. Respondent failed to appropriately perform physical testing, did excessive testing, failed to use properly calibrated equipment, had conflicts of interests when ordering tests, did unscientifically reliable or recognized tests, and unnecessary tests.

5. Respondent sees K.A. on a number of other occasions that are recorded as follow-up visits. Respondent billed these billed as consultations, which is a higher level of service than a follow-up visit. The use of a higher level of service is inconsistent with proper CPT coding practices. The practice of billing a service using a higher CPT code to increase reimbursement is term upcoding and not within standard of care.

6. Respondent's billings for the excessive evaluations, excessive diagnostic tests, . and consultations were improper, unreasonable, and/or for services not medically or clinically necessary, and a violation of Section 311.0025 of the Texas Health and Safety Code, which provides that a health care professional may not submit to a patient or a third party payor a bill for a treatment that professional knows was not provided or knows was improper, unreasonable, or medically or clinically unnecessary.

7. The bills submitted by Respondent were unbundled. "Unbundling" is a well-recognized method of filing for reimbursement, and an unlawful practice in which separate charges are submitted for multiple procedures, which are normally performed together and billed as a single procedure.

8. This practice of ordering excessive and marginal tests without medical support is inconsistent with public health and welfare, and represents non-therapeutic, prescribing, treatment and flagrant or persistent over treating and overcharging, which is unprofessional. This is also below the standard of care.

Allegation #4–Patient J.S.

1. Respondent examined Patient J.S. on December 13, 2000. J.S. completed a 23-page Immune Dysfunction Questionnaire on December 5, 2000.

2. J.S. had a significant medical history of explosive diarrhea, cramping, fever, night sweats, 65-pound weight loss in an 8-month period, loss, of appetite, and smoking.

3. Respondent's diagnosis was drawn largely from the patient's Immune Dysfunction Questionnaire, without performing appropriate testing and evaluations. Respondent ordered extensive testing, despite not having a history or physical examination. This is not within the standard of care.

4. J.S. had his primary care physician and a neurologist review Respondent's diagnoses and treatment plan. Both of these physicians disagreed with Respondent's treatment plan and diagnoses.

5. Respondent's billings for the excessive evaluations, excessive diagnostic tests, and consultations were improper, unreasonable, and/or for services not medically or clinically necessary, and a violation of Section 311.0025 of the Texas Health and Safety Code, which provides that a health care professional may not submit to a patient or a. third party payor a bill for a treatment that professional knows was not provided or knows was improper, unreasonable, or medically or clinically unnecessary.

6. The bills submitted by Respondent were unbundled. "Unbundling" is a well-recognized method of filing for reimbursement, and an unlawful practice in which separate charges are submitted for multiple procedures, which are normally performed together and billed as a single procedure.

7. Respondent improperly used CPT codes for services rendered by using incorrect 'or improper codes based on level of service rendered or performed.

8. On a number of occasions Respondent recorded visits as consultations, when there was no referral. Respondent billed these as consultations, which requires a referral and is a higher level of service than a follow-up visit. The use of a higher level of service is inconsistent with proper CPT coding practices. The practice of billing a service using a higher CPT code to increase reimbursement is term upcoding and not within standard of care.

9. This practice of ordering excessive and marginal tests without medical support is inconsistent with public health and welfare, and represents non-therapeutic prescribing, treatment and flagrant or persistent over treating and overcharging, which is unprofessional. This is also below the standard of care.

Allegation #5–Patient M.S.

1. Respondent evaluated Patient M.S. on June 26, 2001 for possible mold exposure. M.S. had a significant medical history that included an evaluation by 2 ENT specialists for cough symptoms of 2 years duration. M.S. had prior diagnostic testing including chest x-ray, pulmonary function tests, barium swallow, and allergy testing. The diagnosis in October of 2000 was cough secondary to allergic rhinitis.

2. On June 26, 200,1 Respondent saw and diagnosed M.S. with “exposure to molds, cough-chronic, headaches, abnormal neurological exam, allergies, and blurred vision." Respondent had M.S. undergo extensive testing. This testing was excessive in regard to history and complaint.

3. Respondent's ordering of excessive diagnostic testing without adequate medical justification is improper and is below the standard of care.

4. Respondent's billings for the excessive diagnostic tests, and consultations were improper, unreasonable, and/or for services not medically or clinically necessary, and a violation of Section 311.0025 of the Texas Health and Safety Code, which provides that a health care professional may not submit to a patient or a third party payor a bill for a treatment that professional knows was not provided or knows was improper, unreasonable, or medically or clinically unnecessary.

5. The bills submitted by Respondent were unbundled. “Unbundling" is a well-recognized method of filing for reimbursement, and an unlawful practice in which separate charges are submitted for multiple procedures, which are normally performed together and billed as a single procedure.

6. On a number' of occasions Respondent recorded visits as consultations, when there was no referral. Respondent billed these as consultations,. which. requires a referral and is a higher level of service than a follow-up visit. The use of a higher level of service is inconsistent with proper CPT coding practices. The practice of billing a service using a higher CPT code to increase reimbursement is term upcoding and not within standard of care.

7. This practice of ordering excessive and marginal tests without medical support is inconsistent with public health and welfare, and represents non-therapeutic prescribing, treatment and flagrant or persistent over treating and overcharging, which is unprofessional. This is also below the standard of care.

Allegation #6–Patient A.T.

1. On February 8, 2002, Respondent examined Patient M.T. for symptoms related to toxic mold exposure. M.T.'s medical history was significant for fatigue, memory disturbances, depression, anxiety, personality changes, mood swings, headaches, sleep disturbances, visual changes, muscle aches/weakness, flu like illnesses, nose bleeds, shortness of breath, numbness and tingling to back of head which radiates to shoulder.

2. Many of M.T.'s symptoms and complaints were not addressed in the history and physical. Respondent did not explore or perform any testing to address these symptoms. Respondent failed to rule out any other potential diagnoses. Respondent ordered extensive testing that is not related to the patient's complaints or symptoms. These tests were excessive, there is no documentation as to why the tests were ordered or medically necessary. The tests ordered had limited medical value and need.

3. Respondent's finding of toxic mold exposure is found despite a "Mold Contamination & Assessment Report" that indicates air samples in the home, "identified that total fungal spore concentrations were within the range of values typically measured in residences and .lower than the equivalent outdoor counts." These records, this report, along with some past medical records were made available to the Respondent review on the day of the exam.

4. Respondent ordered excessive diagnostic testing without adequate medical justification. This practice fell below the standard of care.

5. Respondent's billings for the excessive evaluations, excessive diagnostic tests, and consultations were improper, unreasonable, and/or for services not medically or clinically necessary; and a violation of Section 311.0025 of the Texas Health and Safety Code, which provides that a health care professional may not submit to a patient or a third party payor a bill for a treatment that professional knows was not provided or knows was improper, unreasonable, or medically or clinically unnecessary.

6. Respondent failed to maintain adequate medical records to justify the necessity of the above listed evaluations, testing, referrals, treatment, and billing.

7. On, a number of occasions Respondent recorded visits as consultations, when there was no referral. Respondent billed these as consultations, which requires a referral and is a higher level of service than a follow-up visit. The use of a higher level of service is. inconsistent with proper CPT coding practices. The practice of billing a service. using a higher CPT code to increase reimbursement is term upcoding and not within standard of care.

8. This practice of ordering excessive and marginal tests without medical support is inconsistent with public health and welfare, and represent non-therapeutic prescribing, and flagrant or persistent over-treating and over-charging, which is unprofessional. This is also below the standard of care.

9. The bills submitted by Respondent were unbundled. "Unbundling" is a well recognized method of filing for reimbursement, and an unlawful practice in which separate charges are submitted for multiple procedures, which are normally performed together and billed as a single procedure

Allegation #7–Patient MT2

1. On February 8, 2002 Respondent examined Patient M.T.2, the daughter of Patient M.T., for symptoms related to toxic mold exposure. M.T.2's medical history was significant for fatigue, memory disturbances, depression, anxiety, personality changes, mood swings, headaches, sleep disturbances, visual changes, muscle aches/weakness, flu like illnesses, nose bleeds, shortness of breath, numbness and tingling to back of head which radiates to shoulder.

2. Many of the patient's symptoms and complaint are not addressed in the history and physical. Respondent does explore or perform any testing to address these symptoms. Respondent's fails to rule out any other potential diagnoses. Respondent's orders extensive that is not related to the patient's complaints or symptoms. Theses tests are excessive, there is no documentation as to why the tests are ordered or medically necessary. The tests ordered have limited medical. value and need.

3. Respondent finding of toxic mold exposure is found despite a "Mold Contamination & Assessment Report" indicates air samples in the home, "identified that total fungal spore concentrations were within the range of values typically measured in residences and lower than the. equivalent outdoor counts." These records, this report, along with some past medical records were made available to the Respondent review or the day of the exam.

4. Respondent ordered excessive diagnostic testing without adequate medical justification. This practice fell below the standard of care.

5. Respondent's billings for the excessive evaluations, excessive diagnostic tests, and consultations were improper, unreasonable, and/or for services not medically or clinically necessary, and a violation of Section 311.0025 of the Texas Health and Safety Code.

6. Respondent failed to maintain adequate medical records to justify the necessity of the above listed evaluations, testing, referrals, treatment, and billing.

7. The bills for the. provided by Respondent indicate multiple procedures with multiple codes that represent unbundling is a violation of Section 311.0025, Texas Health and Safety Code, which provides that a health care professional may not submit to a patient or a third party payor a bill for a treatment that professional knows was not provided or knows was improper, unreasonable, or medically or clinically unnecessary.

8. On a number of occasions, Respondent recorded visits as consultations, when there was no referral. Respondent billed these as consultations, which requires a referral and is a higher level of service, than a follow-up visit. The use of a higher level of service is inconsistent with proper CPT coding practices. The practice of billing a service using a higher CPT code to increase reimbursement is term upcoding and not within standard of care.

9. This practice of ordering excessive and marginal tests without medical support is inconsistent with public health and welfare, and represent non-therapeutic prescribing, and flagrant or persistent over-treating and over-charging, which is unprofessional. This is also below the standard of care.

10. The bills submitted by Respondent were unbundled. "Unbundling" is a well-recognized method of filing for reimbursement and an unlawful practice in which separate charges are submitted for multiple procedures, which are normally performed together and billed as a single procedure.

Allegation #7–Patient A.T.

1. On February 8, 2002 Respondent examined Patient A.T., daughter of patient M.T., for symptoms related to toxic mold exposure. A.T.'s medical history was significant for fatigue, memory disturbances, depression, anxiety, personality changes, mood swings, headaches, sleep disturbances, visual changes, muscle aches/weakness, flu like illnesses, nose bleeds, shortness of breath, numbness and tingling to back of head which radiates to shoulder.

2. Many of the patient's symptoms and complaint are not addressed in the history and physical. Respondent does explore or perform any testing to address these symptoms. Respondent's fails to rule out any other potential diagnoses. Respondent’s orders extensive that is not related to the patient's complaints or symptoms. Theses tests are excessive, there is no documentation as to why the tests are ordered or medically necessary. The tests ordered have limited medical value and need.

3. Respondent finding of toxic mold exposure is found despite a "Mold Contamination & Assessment Report" indicates air samples in the home, "identified that total fungal spore concentrations were within the range of values "typically measured in residences and lower than the equivalent outdoor counts." These records, this report, along with some past medical records were made available to the Respondent review on the day of the exam.

4. Respondent's ordering of excessive diagnostic testing without adequate medical justification. This practice fell below, the standard of care.

5. Respondent's billings for the excessive evaluations, excessive diagnostic tests, and consultations were improper, unreasonable, and/or for services not medically or clinically necessary, and a violation of Section 311.0025 of the Texas Health and Safety Code, which provides that a health care professional may not submit to a patient or a third party payor for a treatment that professional knows was not provided or knows was improper, unreasonable, or medically or clinically unnecessary.

6. Respondent. failed to maintain adequate. medical records -to justify the necessity of the above listed evaluations, testing, referrals, treatment, and  billing.

7. The bills submitted by Respondent were unbundled. "Unbundling" is a well-recognized method of filing for reimbursement and an unlawful practice. in which separate charges are submitted for multiple procedures, which are normally performed together and billed as a single procedure.

8. On a number of occasions -Respondent recorded visits as consultations, when there was no referral. Respondent billed these as consultations, which requires a referral and is a higher level of service, than a follow-up visit. The use of a higher level of service is inconsistent with proper CPT coding practices. The practice of billing a service using a higher CPT code to increase reimbursement is term upcoding and not within standard of care.

9. This practice of ordering excessive and marginal tests without medical support is inconsistent with public health and welfare, and represent non-therapeutic prescribing, and flagrant or persistent over-treating and over-charging, which is unprofessional. This is also below the standard of care.

Allegation #8–Patient C.B.

1. Respondent treated Patient C.B. for multiple complex symptoms related probable immune dysfunction from November 1995 through April 2003. C.B.'s medical history was significant for fatigue, angina, allergic, rhino sinusitis, anxiety/depression, muscle weakness and other various conditions. In response to this. Respondent throughout his treatment of C.B. ordered extensive and costly medical testing.

2. Many of the patient's symptoms, and complaint are not addressed in the history and physical. Respondent orders extensive testing that is not related to the patient's complaints or symptoms. These tests are excessive, there is no documentation as  to why the tests are ordered or medically necessary. The tests ordered have limited medical value and need.

3. Respondent repeatedly failed to establish medical necessity for multiple complex fungal testing, immune complex testing, and oxidant function testing. The  Respondent frequently utilized complex  evaluation and management CPT codes that were not fully substantiated by the patient’s combined history, physical examination, and therapeutic approaches.

4. Respondent's billings for the excessive evaluations, excessive diagnostic tests, and consultations were improper, unreasonable, and/or for services not medically or clinically necessary, and a violation of Section 311.0025 of the Texas Health and Safety Code, which provides that a health care professional may not submit to a patient or a third party payor for a treatment that professional knows was not provided or knows was improper, unreasonable, or medically or clinically unnecessary. Respondent's ordering of extensive diagnostic teasing without adequate medical justification. This practice fell below the standard of care.

5. Respondent. failed to maintain adequate. medical records -to justify the necessity of the above listed evaluations, testing, referrals, treatment, and  billing.

6. On a number of occasions, Respondent recorded visits as consultations, when there was no referral. Respondent billed these as consultations, which requires a referral and is a higher level of service, than a follow-up visit. The use of a higher level of service is inconsistent with proper CPT coding practices. The practice of billing a service using a higher CPT code to increase reimbursement is term upcoding and not within standard of care.

Respondent's treatment and testing of these patients demonstrates a pattern of inadequate medical history and examination to substantiate the diagnoses listed. The testing ordered and conducted is excessive and medically unrelated to the patient’s chief complaints. The interpretation of many tests are not supported by data and history in the patient’s records.

Many of the charges are excessive. Documentation guidelines regarding level of service were not met to support the billing or the coding of bills. Respondent upcoded charges by charging more for the level of services indicated in the medical records. Respondent misuses CPT codes. Consultations were billed fraudulently in all cases.

This practice demonstrated a potential for patient harm, economic harm to the patients or entity, increased potential to harm the public through this continuing  pattern of practice, attempted concealment of the conduct, the conduct was premeditated, intentional conduct, and was motivated for enrichment of Respondent with a disregard for patient well-being, this pattern shows likelihood of similar future conduct, all of which increases the potential harm and seriousness of the violation.

V. Applicable Statutes, Rules, and Agency Policy

Respondent's conduct, as described above, constitutes grounds for the Board to revoke or suspend Respondent's Texas medical license or to impose any other authorized means of discipline upon the Respondent. The following Statutes, Rules, and Agency Policy are applicable to this matter:

A. PROCEDURES FOR THE CONDUCT OF THIS HEARING:

1. Section 164.007(a) of the Act requires that the Board adopt procedures governing formal disposition of a contested case before the State Office of Administrative Hearings.

2. 22 TEX. ADMIN. CODE. Chapter 187 sets forth the procedures adopted by  the Board under the requirement of Section 1 64.007(a) of the Act.

3. 1 TEX: ADMIN. CODE ~15S.3(c) provides that the procedural rules of the state agency on behalf of which the hearing is conducted govern procedural matters that relate to the hearing as required by law,  to wit: Section l64.007(a) of the Act, as cited above.

4. 1 TEX. ADMIN; CODE. CHAPTER 155 sets forth the rules of procedure adopted by SOAH for contested case proceedings.

B. VIOLATIONS WARRANTING DISCIPLINARY ACTION

1. Respondent is subject to disciplinary action pursuant to Section 164.051(a)(1) of the Act based on Respondent's commission of an act prohibited under Section 164.052 of the Act.

2. Respondent is subject to disciplinary action by the Board pursuant to Section 164.051(a)(6) of the Act by failing  to practice medicine in an acceptable professional manner consistent with public health and 'welfare.

3. Board Rule 190.8(1)(a), provides that the failure to practice medicine in an acceptable manner consistent with public health and welfare includes the failure to treat a patient according to the generally accepted standard of care.

4. Respondent has committed a prohibited act or practice within the meaning of Sections 164.052(a)(5) and 164.053(a)(5) of the Act by prescribing or administering a drug or treatment that is non-therapeutic in nature or non-therapeutic in the manner the drug or treatment is administered or prescribed.

5. Respondent has committed 8 prohibited act or practice within the meaning of Section 164.052(0)(5) of the Act based upon unprofessional or dishonorable conduct that is likely to deceive or defraud the public or injure the public.

6. Respondent has committed a prohibited act or practice within the meaning of Sections 164.052(8X5) and 164.053(a)(1) of the Act by Respondent's commission of an act that violates any law of this state if the act is connected with Respondent's practice of medicine. In accordance with Section 164.053(b), 8 complaint, indictment, or conviction of a violation of law is not necessary for enforcement of Section 164.053(8)(1).

7. Respondent has committed a prohibited act or practice within the meaning of Section 3.08(4)(0) of TEX. REV CIV. STAT. ANN. art. 4495(b) (Vernon Supp. 1999) by violating section 311.0025 of the Texas. Health and Safety Code, which provides that a health care professional may not submit to a patient or a third party payor a bill for a treatment that professional knows was not provided or knows was improper, unreasonable, or medically or clinically unnecessary.

8. Respondent has committed a prohibited act or practice within the meaning of Sections l64.052(aX5) and 164.053(a)(7) of the Act by violating Section 311.0025 of the Texas Health &' Safety Code, which provides that a health care professional may not submit to a patient or a third party payor a bill for a treatment that professional knows was not provided or knows was improper, unreasonable, or medically or clinically unnecessary.

9. Respondent has committed a prohibited act or practice, and is subject to discipline pursuant to Sections 101.203 of the Act, which provides that a health care professional may not ,violate Section 311.0025 of the-Health and Safety Code.

C. SANCTIONS THAT MAYBE IMPOSED:

1. Section 164,001 of the Act authorizes the Board to impose a range of disciplinary actions against a person for violation of the Act or a Board rule. Such sanctions include: revocation, suspension. probation, public reprimand, limitation or restriction on practice, counseling' or treatment, required educational or counseling programs, monitored practice, public service, and an administrative penalty.

2. Chapter 165, Subchapter A of the Act sets forth statutory requirements for the amount and basis of an administrative, penalty.

3. 22 TEX. ADMIN. CODE § 187.39 authorizes the Board to assess, in addition to penalty imposed, costs of the investigation and administrative hearing in the case of a default judgment or upon adjudication that Respondent is in violation of the Act after a trial on the merits.

4. 22 TEX. ADMIN, CODE Chapter 190 provides disciplinary guidelines intended to provide guidance and a framework of analysis for administrative law judges in the making of recommendations in contested licensure and disciplinary mailers and to provide guidance as to the types of conduct that constitute violations of the Act or board rules.

VI. NOTICE TO RESPONDENT

IF YOU DO NOT FILE A WRITTEN ANSWER TO THIS NOTICE WITH THE STATE OFFICE OF ADMINISTRATIVE HEARINGS WITHIN 20 DAYS OF THE DATE NOTICE OF SERVICE WAS MAILED, A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU, WHICH MAY INCLUDE THE DENIAL OF LICENSURE OR ANY OR ALL OF THE REQUESTED SANCTIONS INCLUDING THE REVOCATION OF YOUR LICENSE, IF YOU FILE A WRITIEN ANSWER, BUT THEN FAIL TO ATIEND THE HEARING, A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU, WHICH MAY INCLUDE THE DENIAL OF LICENSURE OR ANY OR ALL OF THE REQUESTED SANCTIONS INCLUDING THE REVOCATION OF YOUR LICENSE. A COPY OF ANY RESPONSE YOU FILE WITH THE STATE OFFICE OF ADMINISTRATIVE HEARINGS SHALL ALSO BE PROVIDED TO THE HEARINGS COORDINATOR OF THE TEXAS STATE BOARD OF MEDICAL EXAMINERS.

PURSUANT TO 22 TEX. ADMIN. CODE § 187.27(2), A WRITTEN ANSWER SIIALL SPECIFICALLY ADMIT OR DENY EACH FACTUAL ALLEGATION MADE AGAINST THE RESPONDENT.

WHEREFORE, PREMISES CONSIDERED, Board Stuff requests that an administrative law judge employed by the State Office of Administrative Hearings conduct a contested case hearing on the merits of the Complaint, in accordance with Section 164.007(a) of the Act. Upon final hearing, Board Staff requests that the Honorable Administrative Law Judge issue a Proposal for Decision ("PFD") that reflects Respondent's violation of the Act as set forth in this Complaint. Following issuance of the PFD, Board Staff requests that the Board enter an Order to revoke or suspend Respondent's medical license or that other means of discipline be imposed.

In the event that the Board determines to stay any revocation or suspension and grant probation in this case or to impose restrictions on Respondent's license, Board Staff requests that the following restrictions be considered:

1. Probation should continue for an appropriate period of time.

2. Respondent should be restricted from practicing medicine in Texas until Respondent requests permission in writing to resume the practice of medicine in Texas, personally appears before the Board to orally petition for permission to resume such practice, and provides sufficient evidence and information that, ill the discretion of the Board, adequately indicates that Respondent is physically, mentally, and otherwise competent to safely practice medicine, or such other restrictions as may be found to be appropriate,

3, Respondent should be required to complete additional hours of Continuing Medical Education each year during the probationary period.

4. Respondent should be required to) maintain patient medical and billing records in accordance with 22 TEX. ADMIN. CODE, Chapter 165.

5, Respondent's patient medical and billing records should be monitored by a physician designated by the Executive Director of the Board.

6. Respondent should be required to perform public service.

Board further requests that the Board impose an administrative penalty against Respondent in an appropriate amount for each violation and for each day the violation continues, based on the seriousness of the violations, the economic harm to property or the environment caused by the violation, the history of previous violations, the amount necessary to deter a future violation, efforts to correct the violation, the estimated cost of the investigation and prosecution of the case, and the estimated cost of any future monitoring of the licensee.

Board Staff further requests that the Board assess, in addition to the administrative penalty imposed, the cost of the Administrative hearing.

Board Staff further requests that Respondent be reprimanded for his violations of the Act.

Respectfully submitted,

TEXAS STATE BOARD OF MEDICAL EXAMINERS

____________________________
Scott M. Freshour
Mark Martyn
Texas State Board of Medical Examiners
Telephone: (512) 305-7096
FAX # (512) 305-7007
333 Guadalupe, Tower 3, Suite 610
Austin, Texas 78701

This page was revised on January 24, 2012.

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