Monday, September 29, 2008

SIGNING AN AGREED ORDER DOES NOT MEAN ITS OVER

Once physician signs an Agreed Order to settle an investigation that does not mean the investigation is actually settled. The full Board must vote and approve the order by a majority vote. Usually every meeting one or more orders are rejected or modified by the Board members. Those Agreed Orders are not passed. The Board members usually make amendments to the Agreed Order, which is essentially a counter offer. The problems with this are many. The top three issues I find are:

1) It creates ill will. The doctor and the Board have to go through a hearing and often negotiate this with the Board staff and Board members who the met with the Informal Settlement Conference. The rejection often creates anger from the doctor.
2) Recently, the Board has not done a good job following the law. According to Texas Occupations Code Section164.0031, the Board is to expressly state why they rejected the Agreed Order. When notifying the physician of this action, TMB staff frequently does not explain what happened and why. Sometimes, they do not even know the rationale to change the Agreed Order. This leaves the doctor in the dark. Sometimes, the Board members make assumptions on the basis of the action that may be wrong.
3) The largest frustration is it appears when the Board takes this step and that it appears, from the outside, to be an arbitrary decision. This is especially the case when a Board member who has not seen any of the evidence and did not participate in the decision makes the argument to change the Order.

It would be better, in my opinion, to have a mechanism whereby if Board members have an issue with an Agreed Order it be announced prior to the meeting so that the assigned Board staff attorney and the physician have the opportunity to discuss the proposed Agreed Order before the full Board and answer whatever questions or concerns the Board member may have. Also it will give the Board members who served on the Informal Settlement Conference a chance to refresh their memories and be able to explain why they decided the way they did. This will make the process more open, the parties will have less anger and may lead to less litigation.

Friday, September 26, 2008

8th GRADE MATH

More and more I am seeing both TMB experts and Board members and staff arguing that a doctor’s medical records are deficit because the records fail to provide expressed justification or rationale for medical treatments, labs, consults and testing.

TMB is demanding that doctors justify what you are doing. Your medicine may be right, but if you don’t show the “why” some Board consultants, members and staff will find your records are deficient. I liken this to Eight Grade math. Take 144 ÷ 12 , you know it’s 12. Well in Eight Grade math, the teacher would mark you wrong because you didn’t show your work. If you showed the 144 - 144 = 0 and then you placed the 12 on top that would be right. Same outcome, as before, but this time you demostrated to the teacher how you got there.

Think about this with your medical records.

Wednesday, September 17, 2008

Board to Consider Standardizing Impairment Orders

At the TMB Board meeting on August 30th, there was discussion of standardizing the length, the terms and conditions of impairment orders. It may be with such cases in the future, the individual would not even go to a hearing unless the circumstance of that person’s impairment history was out of the norm. According to the discussion, the “standard” case seems to be someone who abused alcohol or drugs in medical school or residency. They recognized they had a problem and sought treatment. Under those type cases the TMB would formulate a standard agreement of maybe seven years to monitor those individuals. Typical monitoring would be with drug screening, mandated attendance at a 12 step program, required participation in a county medical society impairment committee and approved mental health care. TMB staff will have a proposal for the Board members to consider at the October meeting. Those cases that are “egregious” would be sent to a disciplinary hearing.

My Take: I think this is a reasonable idea that could be well used and certainly could speed up the process of having someone monitored by the Board. The three concerns that come to my mind are:
(1) What does “egregious” mean? Is it someone who harmed a patient while impaired, or is it a doctor who does not meet the “standard” view of how impairment cases make it to the Board? It is not clear to me at this time.
(2) What if someone wants a hearing? How is that process going to be resolved? Obviously, the TMB cannot waive someone’s due process rights, so how will that play out? It is a critical question that must be resolved and a plan is in place.
(3) The individuals who are offered such Orders need to be fully aware of the consequences of such Orders. There are a lot of pitfalls that people find once they are bound by an Order that they do not know about and, frankly, the TMB does not do an adequate job educating them on those issues until after the Order is in affect. In the staff’s defense, it is not their job to educate the licensee; it’s the licensee’s responsibility.

Tuesday, September 16, 2008

Expanding the Board?

At the last Board meeting, the interim Executive Director floating the idea of expanding the Disciplinary Review Committee (DRC). The DRC is currently made up of twenty-eight (28) physicians and public members who were appointed by the Governor and approved by the Senate to serve as support members for the full Board. There currently design to appear at Informal Settlement Conferences, along with Board members to hear disciplinary cases. They serve six year terms. The DRC is separated into four regional areas to create a wide geographic distribution of membership. A list of the current members can be found on the Board’s website.

Due in part to the increase in the number of disciplinary hearings (see prior posts) the even the DRC membership is becoming burned-out on the number of hearings. The Executive Director educated the Board that in some states, such as New York, have over a hundred members of their disciplinary Panel to choose from, thus easing the burden.

Any change in the DRC must be legislative as the membership is statutory. The TMB may ask the legislature and the governor to expand the DRC at the next session.

My Take: On its face, this makes sense due to the large increase in hearings and, frankly, I do not see that number falling anytime in the near future. However, to make this work well, a few things need to be done. (1) It would be a good idea to have a boarder representative of specialties represented on DRC. The TMB staff should attempt to have cases before the specialist in the same area of their expertise to have specialist talking to another specialist. I believe this would generate better discussion and fairer outcome. (2) DRC members need to have better more formalize training. Currently, the training is limited. This additional training would be critical given the fact that people will appear at less hearings, thus the expertise of the DRC members is lowered and reliance of staff is greater. It is important the DRC members understand how decisions they make have real impact.

Thursday, September 11, 2008

No More Continuances for Disciplinary Hearings?

At the Disciplinary Process Review Committee on August 28th, an idea was floated that I actually do not have a problem with, if it is done properly.

The idea is the TMB staff would generally end the granting of continuance requests. Ms. Robinson, the Director of Enforcement and current Interim Executive Director, reported to the Committee that she does not think the TMB staff can grant continuance requests anymore because it compounds the problem of delays in the Informal Settlement Conference (ISC) process (see last post). The problem is the TMB staff schedules the ISC, the board members show-up and they do not have a full day of meetings because someone has a conflict and cannot be present. It wastes the time of the Board members, the staff and it forces the hearing to be rescheduled, which slows the ISC process.

My Thoughts: First, I would assume the TMB staff would continue to take into consideration like tragic unexpected events, like serious illness, death in the family, or like current events, natural disasters, when considering continuance requests. Of course, TMB staff will grant continuances for things like that. This is only reasonable and I would believe very rare.
Second, I fail to see why the continuance issue has been a big problem if the TMB staff is following its own rules and policy in the letters we get for scheduling ISCs. The initial letter tells us that we have five days upon receipt to contact the Board to advise them of a conflict. If people are contacting the TMB within that time period, I should think filling the slot would not be too much of a burden for the staff. This is especially true as, generally, the TMB staff is giving us a good amount of time warning of the scheduling of an ISC. Maybe people are abusing the process? I do not know the situation or why continuance are being granted outside the policy of the Board.
But I believe I have the solution if TMB staff really wants to up a stop to continuances, but for emergencies. The TMB staff can coordinate schedules, especially with those of who to appear frequency at the TMB. TMB staff can simply call or e-mail the doctor’s attorney (or the doctor, if the individual is so foolish to appear without one) suggesting three or so dates and allowing the parties to mutually agree on dates. This process should certainly lessen conflicts rather than the current process of the TMB scheduling dates without any communication to the other side. Moreover, since the TMB is already setting ISCs months in advance, the TMB should be able to agree on date far in advance. Using this process, I think it would be far more difficult for people to suddenly claim a date is no good. And if they do have conflicts, that is know far ahead of time and the parties can agree on a date that benefits all sides the problem is solved. This will reduce the number of continuance request and demonstrate to the doctor (and the doctor’s attorney) the TMB is willing to work with them. This is a win-win for both the Board and physicians.

Tuesday, September 9, 2008

2008 Investigation Stats for the TMB

The end of the fiscal year for the State of Texas was August 31st. The Texas Medical Board had a record year in the number of complaints, the number of investigations, the number of hearings against doctors and the number of physicians in the TMB’s compliance program.

The TMB exceed 6300 initial complaint letters to physicians this year. Of that, the TMB opened more than 3000 active investigations against Texas physicians. This represents more than 150 more investigations than in Fiscal Year 2007. What is interesting is that “non-jurisdictional” complaints are down to the levels seen in Fiscal Year 2006. Non-jurisdictional mean that TMN staff evaluated the complaint and felt it does have legal authority of the nature of the complaint. The majority of the cases opened to full investigations are allegations regarding a violation of the standard of care.

In the litigation area the TMB has 651 active cases. At the end of 2007, there were 452. The Board has conducted approximately 550 ISCs for fiscal year, which is a record. As a result of this increase, it is taking longer to resolve cases in the litigation area. Moreover, the ability to schedule hearings is getting bogged down. For example, the TMB is already setting Informal Settlement Conferences for February 2009. As these numbers continue, I do not see a resolution to problem in the near future.

For SOAH, there are currently 56 cases pending and staff was planning to file between fifteen and twenty more by August 31st. It is not clear to me at this time whether that occurred.

There are approximately 730 licenses of the TMB within the Board’s compliance (probation) system.

I'll provide my opinion on these stats in a few days.

Friday, September 5, 2008

Waivers of Delegation of Prescriptive Authority are Hard to Come By

Under TMB rules, a physician can delegate prescriptive authority under a set of somewhat complex rules (See Board Rule 193.6). The TMB does have the authority to waive these rules in certain limited situations. Specifically, the rule states: “The TMB may waive or modify any of the site or supervision requirements for a physician to delegate the carrying out or signing of prescription drug orders to an advanced practice nurse of physician assistant at facilities serving medically underserved populations, at physician primary and alternate practice sites, and at facility-based practice sites.” 22 Texas Administrative Code §193.6(i)(1). To get this waiver, there is an application and review process and there is also an appearance before the Standing Orders Committee of the TMB.

This Committee met on August 28th. Two requests were submitted and both were denied. Denials of requests have been standard from the meetings we have observed over the last several months. The Committee did provide some insight into why these denials have been made. Some members of the Committee expressed the thought that waivers are not just there for the asking. The TMB wants to make sure those asking for waivers fully understand the reason for the standing orders is protecting the public by providing physician oversight. Waivers will not be granted just because someone feels they do not have the time to drive down the road.

In response to these concerns at the last meeting, the Committee directed staff to create a new application form that does go into far more detail that explains the rationale for waivers from the TMB rules concerning standing delegation orders. The form expresses that waivers are only granted if good reason exists. The chief question for the TMB is: would the patient population be better served from the request? If the answer is no, then it will be denied. The Committee directed staff to start using this new form immediately.

My Take: Anything that the TMB and TMB staff can to make these rules more direct and clear would benefit everyone. This rule is complex and difficult to understand unless you deal in this area on a regular basis. As mid-level providers are becoming more the norm and physicians are delegating more and more authority to them, it is critical that both physicians and mid-levels review the delegation rules and fully understand what can and cannot be done. From the many clinics and even hospitals that I have visited over the year, many do not meet the requirements set forth by the TMB. The health care community and the TMB should work together to revisit these rules to make them more user-friendly so that everyone understands these rules.

Thursday, September 4, 2008

Telemedicine Committee – August 28th

Telemedicine Committee – August 28th

Tonya Palone, Policy Analyst, from HHSC spoke on proposed changes to the HHSC rules regarding telemedicine in response to legislature. The two main issues for HHSC are:

1) Terminology is changing to align with Medicare, i.e., the term hub changes to distant and the term remote changes to patient site.
2) Expanding to allow for providers other than physicians, such as mental health, medication management, psycho therapy.

As a result of these HHSC changes, the Board will have to adopt new rules, specifically regarding issues like patient site versus remote site. Additionally, the rules defining supervisory requirements are currently it is stated in a broad sense. Due to the HHSC rules, the Board may need to provide more detail.

HHSC rules will be published for public comment on September 11th. (See: http://www.sos.state.tx.us/texreg). The public is encouraged to review the proposed rules and can provide public feedback on the rules. The goal of HHSC is to finalized the rules and enact them by April 2009.

Board staff recommends that Board wait until HHSC adopt their rules, however do not want to wait until April to make the changes. The Board staff may place this issue on the October Board meeting agenda. Board staff suggests that the Board review the proposed HHSC rules and make any changes to the Board rules at the February 2009 meeting.

My Comments: To be able to involve one’s self in telemedicine, one must be a licensed Texas physician. A few years ago, the Board did start to issue Telemedicine licenses. These are given to out-of-state doctors who practice via technology, but do not and cannot otherwise practice in Texas. The vast majority of these individuals are radiologist and pathologist at this time. As technology grows in this area, who knows how these field with grow. There is a growing need for PCPs in Texas. This is especially true to small towns across Texas who are increasingly having trouble finding and keeping doctors. Telemedicine may a solution to this problem.
If you are interested in the scope and limits of telemedicine, information can be found at Board rule 174. If you are interested in the licensing requirements for telemedicine, they can be found at Board rule 172.12. The rules can be found at the Board’s website. (www.tmb.state.tx.us).

Wednesday, September 3, 2008

TMB Executive Committee Meeting

The majority of the Executive Committee of the Board was held in Executive Session, meaning not open the public. According to the published agenda the Board was to speak about on-going litigation and employment matters. Surely the role of Executive Director was discussed Mari Robinson, the current Director of Enforcement and Interim Executive Director, left the meeting early.

A little more than an hour after Ms. Robinson left, the Committee returned to open (public) session. I have been predicting (guessing) for a while that Ms. Robinson would be named the Executive Director. The Committee continued to push that theory for me as they are planning to post a job description for Medical Director. Under the statute, Texas Occupations Code Section 152.054(b), essentially provides that if the Executive Director is not a licensed physician, the Board "shall" appoint a Medical Director. This individual's role, according to the law, "[P]rimarily responsible for implementing and maintaining policies, systems, and measures regarding clinical and professional issues and determinations."

What is also interesting is the Board is asking the Legislature for guidance on the position. They want this position reporting directly to the Board rather than to the Executive Director. As the Board understands it, the Medical Director currently would have to report to the Executive Director.

This will be an interesting balance of having an Executive Director and a Medical Director, with both reporting to the Board. It will have to be a close team effort for it to work effectively.