Appeals of Board Orders and Motions for Rehearing

Following a trial at the State Office of Administrative Hearings (SOAH), the Texas Medical Board will consider the Administrative Law Judge’s (ALJ) Proposal for Decision (PFD) at one of their full Board meetings and enter a final Order. Due to the Legislature’s 2011 amendment of the Medical Practice Act, the Texas Medical Board cannot change a finding of fact or conclusion of law entered by the Administrative Law Judge. The Board will, however, impose a disciplinary sanction if the ALJ found the physician had violated the Act or the Board’s rules. Once the Medical Board enters a final Order, a physician’s only recourse is to seek judicial review in the Travis County District Courts.

Appealing a Board Order is a confusing and complicated process for those without a legal background, so before you file your motion for rehearing, contact an experienced Texas medical license lawyer at the Leichter Law Firm by calling 512-495-9995.

The Appeals Process

The Texas Administrative Procedure Act governs the appeal of a final Board Order, and requires the physician and their attorney to meet very specific requirements or else risk waiving the licensee’s right or grounds of appeal. Otherwise excellent attorneys who are unfamiliar with this process often inadvertently prejudice their client’s case by missing important deadlines or failing to properly draft the necessary legal pleadings.

Prior to filing a petition for judicial review, a motion for rehearing must be filed with the Medical Board within 20 days after the licensee or their attorney is notified of the final Order. The motion for rehearing must clearly lay out all of the physician’s objections to the Board’s Order and their supporting legal or factual claims. This motion must be thorough because the legal claims that are present in that document will define the limits of what the licensee can argue at District Court on appeal; besides a few narrow exceptions, any argument not set forth in the physician’s motion for rehearing will be considered to have been waived by the District Court.

After it is filed, the Texas Medical Board has a limited amount of time to grant or deny the motion as otherwise it will be overruled as a matter of law. Theoretically, the motion for rehearing is intended to provide notice to the Board that the physician is dissatisfied with the Order and intends to appeal it on the grounds set forth in the motion. If the physician’s claims are meritorious, the Medical Board can grant the motion and change their Order. In practice, the Texas Medical Board rarely, if ever, grants a motion for rehearing.

Petition for Judicial Review

Once the physician’s motion for rehearing has been overruled, the licensee can file their petition for judicial review in Travis County District Court. Thereafter, the Texas Medical Board will be represented by an attorney from the Texas Attorney General’s Office. The case will also be assigned to a specific Judge, typically on a rotating basis.

Even though the case will now be heard by a District Court, judicial review of a Texas Medical Board Order is appellate in nature. The physician’s petition will be heard by a Judge, not a jury, and the Court is limited to the evidentiary record previously created at the State Office of Administrative Hearings. Additionally, the standard of review applicable to most cases, known as substantial evidence, is highly deferential to the Texas Medical Board. Under substantial evidence review, a District Court Judge is not allowed to substitute their judgment for that of the Medical Board; even if the Judge would have reached a different decision if faced with the same evidence and testimony, the Court is required to uphold the Board’s Order if a reasonable mind could have reached the same conclusion as the Board.

The Administrative Procedure Act also allows a District Court to reverse or remand a Texas Medical Board Order if it is arbitrary and capricious, an abuse or unwarranted exercise of discretion, made in error of law, contrary to a statute or the Texas or United States Constitutions, in excess of the Board’s legal authority, or rendered through unlawful procedure. Every one of these grounds for appeal carries a high burden for the physician and their attorney.

After the petition for judicial review is filed the physician also has the option to seek a temporary restraining order or injunction enjoining all or part of the Board Order pending the outcome of the appeal. This is decided in a separate hearing that can include the presentation of evidence and testimony for a limited purpose.

The Final Hearing

Eventually, the case will be set for a final hearing before the Judge. As no new evidence or testimony can be added to the record, this hearing largely consists of oral argument. Both the Board and the physician’s attorney are also required to draft and file extensive briefing in support of their respective positions. It has been the Leichter Law Firm’s experience that almost all administrative appeals are largely decided on the basis of the briefs. Because of this, drafting a clear, concise, and persuasive brief is crucial as it is typically outcome determinative.

Following the final hearing, the District Court Judge will issue a judgment either upholding the Medical Board’s Order or reversing it in whole or in part and remanding it to the Board for the entry of a new Order. If necessary, the Court also has the authority to remand a case back to the Board with instructions to hear additional evidence and testimony. Once the District Court issues its ruling both the physician and the Medical Board have the right to file an appeal and continue the dispute all the way to the Texas Supreme Court. Importantly, the Texas Medical Board is bound by a final judgment issuing pursuant to a physician’s petition for judicial review; unlike a SOAH Proposal for Decision, the Board is not allowed to disregard or deviate from the Court’s ruling.

Contact Us

The attorneys of the Leichter Law Firm have substantial experience trying and winning administrative appeals before the Texas Medical Board as well as other state agencies. Because of the specialized nature of this area of the law, our boutique practice dedicated to the defense of physicians and other health care professionals has given our lawyers extensive opportunity to successfully navigate the judicial review process.

Too often otherwise meritorious cases are derailed by a failure to abide by the strict requirements for appeal or a misunderstanding of the applicable legal standards and inability to properly craft and present the physician’s claims. Any Texas physicians facing a possible appeal of a Texas Medical Board Order can contact the attorneys of the Leichter Law Firm at 512-495-9995.