DO YOU KNOW THE RULES?

When I see investigations for doctors, the first thing I want to see is the medical record. Even if I don’t understand the medicine at first, I know if I am going to have a problem or not based on the records themselves.

In order to help me and help yourself, the physician must make good use of the medical record he or she has. I would urge you to know Board Rule 165.1 on the requirements for what is required for a medical record in Texas and follow the rules. Review the rules at the Board’s web site. My guess is that you are in violations of the rules as they are written.

New Chair and New Appointment to the Acupuncture Board

Gov. Rick Perry has named Allen Cline of Austin chair of the Texas Board of Acupuncture Examiners. He also re-appointed Terry Rascoe of Temple and appointed Rachelle Webb of Austin to the board, which regulates the practice of acupuncture in the state of Texas. Their terms expire Jan. 31, 2013.

Mr. Cline is president of Turtle Dragon Health Services. He is a past member of the Texas and American associations of Acupuncture and Oriental Medicine. He received a master’s degree from the New England School of Acupuncture. Cline also attended Beijing Medical University and the National Academy of Traditional Chinese Medicine of China in Beijing. He replaces Terry Rascoe as chair.

Dr. Rascoe is a physician and medical director at the Northside Family Practice Clinic which is a Scott & White Regional Clinic. He is a member of the American and Texas Medical associations, American and Texas academies of Family Physicians, and the Academy of Medical Acupuncture. Rascoe received a bachelor’s degree from Baylor University and a medical degree from Texas A&M University. He is being reappointed.

Ms. Webb is a licensed acupuncturist in private practice. She is a volunteer with the Remedy Community Clinic and Wright House Wellness Center, a fundraiser for the Leukemia & Lymphoma Society and Paramount Theater Alliance. Webb attended Austin Community College and the Academy of Oriental Medicine at Austin. She replaces Hoang Ho of San Antonio.

MITIGATING FACTORS

According to the Board’s own rules, 190.14(6), the Board is to consider mitigating factors if the Board finds a physician violated the Act.

Mitigating factors are critical if you are involved in an investigation to express this information to the Board. Please do not think that engaging in mitigating factors is equal to an admission that you did something wrong. It is not. But it is all right to use the investigation as a painful learning experience to evaluate the facts of the investigation and see what, if anything, could have been done to have a better outcome. Sometimes, you see with hindsight that something else could have been done; sometimes, maybe nothing else could have been done. Maybe it is poor records, or maybe it is a system’s error. Examining all factors, especially those factors beyond just the underlying allegations can be very helpful to you during the Board’s investigation and can help even more should the investigation result in a disciplinary hearing.

180 DAYS, WHAT DOES IT MEAN?

I frequently get asked how long an investigation takes. I usually supply a lawyer answer. “It depends!”

Now the rules says an investigation should take 180 days. 22 Texas Administrative Code Section 179.6(a). However, it has been more frequent that it takes longer. So if they violate this rule, what happens? Nothing. There is no enforcement to this rule. The rule says the Board should send a letter explaining why it has taken longer than 180 days. 22 Texas Administrative Code Section 179.6(c). However, to date not one of my clients have ever received such a letter. In some cases, I have even asked for this letter from Board staff. I still have not received such a letter.

Again, there is no enforcement mechanism requirement to get this letter, other than going to District Court and filing a writ of mandamus motion. (This is basically asking the Court to direct a government agency to complete a mandatory or ministerial duty). Frankly, this would be a waste of time and resources. So why is this important? Honestly, it is not. This is one of those rule that was made only to ease complaints; but it is meaningless because the Board can go beyond the 180 days and it does not matter.

I will say the Board tries to make the official deadline. But when they don’t, they don’t. Someone under investigation just needs to be patient because you may not know when the investigation will be concluded