Tuesday, November 18, 2008

RESPONDING TO THE NOTICE OF COMPLAINT

It is critical that when you get the notice of complaint that you respond. That sounds silly, but I know a number of practitioners that play ostrich and stick their head in the sand. Guess what, that doesn’t work. The agency will open an investigation. The key to the response is:

1) Respond timely – the Board does not provide extensions.
2) Be factual. This means tell your narrative based on the records you have.
3) Don’t be emotional – the allegation may be bogus, but you don’t have to get upset. The Board is doing its job.
4) Provide records – valid medical records that support your position.

Receipt of this notice doesn’t mean the Board will open a formal investigation; but they will if a response is not received.

Please remember that what you provide the Board will be used against you if an investigation is open. So do not provide anything you would not want the Board to consider for or against you.

Tuesday, November 11, 2008

Experts Should Be In the Sun

One problem I hear a lot of complaints about, and I agree, is the Consultant Reports from the Board. Right now, not only do we not know who wrote the report, but we don’t actually get a copy of the actual report. Currently, the Board provides a report that is created by Board staff that is reported to be the consultants report. And it may be. The perception is that the Board is not providing all the information. The reason this is problematic is:

1) We don’t know who the expert is.
2) How do we actually know the report is legitimate, as we don’t see the report. The perceived problem is we can’t see what the expert actually said because the report has been sanitized by Board staff. A report like that would never be admissible in court or at SOAH.

The perception is that the Board is withholding information and being unfair as a result. Already there is the belief (real or imagined) that the ISC process is pre-determined. These reports only lends support to these fears.

Personally, I don’t believe Board staff would generate false information knowingly. But, I do fear that information that we may find important may not be included by omission or accident as teh staff does not view the information as critical or even necessary. The solution for these perceptions and fears is to provide the actual report to the Board expert. Back when I worked for the Board this is exactly what we did. We would remove identifying information of the expert, but we provided the actual expert report. By doing so, we removed any concern that the Board was not providing full information to the doctor under investigation.
I believe this is the intent of the legislature is the provide the actual report. This is something the Board should return to doing. It is an issue of fairness and helps the Board with its perception problem.

Tuesday, November 4, 2008

Notes from Texas Acupuncture Board Meeting - 10-31-08

The Texas Board of Acupuncture Examiners met for the last time in 2008; this time with new Board members and a new presiding officer. Present were the new presiding officer and first Acupuncturist to hold this position, Allen Cline. Also present at the meeting was Chung-Hwei Chernly, Donald Count, M.D., Pedro Garcia, Terry Rascoe, M.D., Karen Siegel and Rachelle Webb.

The Licensure Committee started around 8:30am. The Committee met separately with two applicants for licensure. After intense questioning, the Committee recommended to the full Board both be granted unrestricted licensees to practice acupuncture in the State of Texas.

The Committee also recognized that since the last meeting, 32 individuals meet the qualifications for licensure in Texas. The Committee recommended to the full Board these individuals be granted a license for Texas. The meeting adjourned at 9:00am

The Education Committee was called to order at 9:31am. The Committee recognized two new providers for CAE. The Committee further directed staff to use information in its data base as “instructive” to staff when it is reviewing courses for approval. It should use this past information to provide staff direction on what the Committee has found acceptable in the past. A review of courses by Board staff approved 29 new courses. The Committee adopted staff’s recommendation. Staff presented courses to the Committee it had some issues and questions about. After review, the Committee adopted staff’s recommendations for the courses at issue. The meeting adjourned at 10:01am

The Disciplinary and Ethics Committee came to order at 10:32am. The Interim Executive Director, Ms. Robinson reviewed the enforcement report for Fiscal Year 2008, which ran from September 1, 2007 until August 31, 2008. In that year, the Board opened six complaints about licensed Acupuncturists in Texas. In that year, the Board took three disciplinary actions, which consisted of two restrictions on licensure and one fine. The fines combined to total $3600.00. The Board also licensed two individuals with limitations. The Board also issued two non-disciplinary, non-public Orders. Currently, the Board has five licensees who are actively monitored by the Board.

Ms. Robinson advised the Board that the number of complaints against acupuncturist remains steady; however, investigations against physicians and physician assistants have had a three fold increase. As such, the length of an investigation is “unacceptable.” She did not say how long an average investigation takes. I can say from my personal experience is it approximately 200 days. As a result, the Board is asking the legislature permission to hire 11 new employees. These new hires will help decrease the investigative time.

The Committee concerned a recommendation from staff to close an existing case. After some suggestion, the Committee recommended to the full Board to close the investigation. The meeting adjourned at 10:43am

The Full Board meeting started at 10:46am. Mr. Cline opened the Board meeting as the new presiding officer and the first acupuncturist in that position. The Committee passed a resolution thanking and recognizing the service of two past members of the Board

Then Ms. Robinson reported that Governor Perry sent a letter to all agencies to cut back on travel and to work on other cost savings measures as the economy has slowed and the budget is being impacted. Board staff proposed to cut back one Board meeting for fiscal year 2009. This was adopted by the Board. Another issue the Board is looking into are technological measures to reduce costs for travel at ISC, like a teleconference. This has not been finalized and there will be a report on this at the next Board meeting.

Dr. Moore, the new Medical Director was introduced. The Medical Director and the Interim Executive Director will have duel roles. The Executive Director will be focused on the administrative function of the agency and work with the interagency functions of the Board. Whereas, the Medical Director will be involved in the medical side of the agency and meet with the stake holders and communicate with the licensees.

Ms. Robinson discussed the idea of holding “town meetings” for acupuncturists around the state, just as was done 13 times last year for the Medical Board. She wants to place some emphasis on opening up communications between the licensees and the Board. She wants more educational efforts. This was positively greeted by the Board members.

At the last Board meeting, the Board passed three rule changes. One, to end the rule that requires acupuncturists maintain their medical records indefinitely. This was changed for 5 years since the last patient contact. There is an exception if the records are involved in some sort of litigation, such as a malpractice suit. Under that circumstance, the records must be maintained until there is a final outcome of the litigation. The Medical Board must approve all such rule changes agreed. This is now a rule of the Board.

The second rule related to the content of a medical record. According to the rule, an acupuncturist must record the patient’s vital signs. Vital signs were not specifically defined. As such, the Board defined vital signs as minimally consisting of blood pressure, heart rate, and temperature. This was sent to the Medical Board for approval, as is required by statute.

The Medical Board wanted to add respiration rate as a vital sign. The Acupuncture Board discussed that most acupuncturists do not record this information. There was also disagreement as to whether physicians do this as a matter of the standard of care. There was a discussion on if they reject it and send it back, if there would be a tug-of-war between the Boards. Ultimately, the Board decided to reject the decision, and leave the term vital signs undefined. It was discussed that it will be then a question of what an average/reasonable acupuncturist think is vital signs. This leaves it to be reviewed based on the Board’s experts vs. a standard instilled by the Board.

This is an important point. Some people think blood pressure, heart rate, and temperature is the standard of care. Some people think blood pressure, heart rate, temperature, and respiration rate is the standard of care. And others think differently. In order to be safe and to avoid criticism, I would suggest that all acupuncturists record blood pressure, heart rate, temperature, and respiration rate as vital signs to avoid a problem with the Board.

The final rule was the Board passed a rule that would allow licensees to use the term “doctor.” The Medical Board rejected this. The basis for this rejection was based on the Healing Arts Identification Act that limits who can use the term “doctor.” (See Texas Occupations Code, Chapter 104). There is a legal mechanism on how some people could use the term “doctor” under the law, but it is cumbersome and subject to interpretation. It is best not to use the term. There was some lively discussion on this issue. Ultimately, the Board was counseled it cannot legally pass a rule that is contrary to statute. It was discussed that if the law was to be changed, the members and other licensees would need to lobby the legislature for a statute change. .

The Board approved the June meeting minutes.

The Board approved and accepted the recommendations of each Committee as noted above.

The final action of the Board was the election of the Assistant Presiding Officer. Mr. Garcia nominated Dr. Rascoe. It was seconded and he was immediately elected to that position without opposition or discussion. The full meeting was adjourned 11:40am