Perry Appoints Three to Chiropractic Board.

Gov. Rick Perry has appointed three members to the Texas Board of Chiropractic Examiners for terms to expire Feb. 1, 2015.

Larry R. Montgomery of Belton is president and clinic director of Montgomery Chiropractic. He is a member of the Texas Chiropractic Association, American Academy of Pain Management and American Chiropractic Association Council on Orthopedics. He is a past member of the Belton Christian Youth Advisory Board and Belton Rotary Club, and is a member of the Belton Area Chamber of Commerce Board of Directors, Belton Planning and Zoning Commission and Belton Lions Club. Montgomery attended Central Texas College and San Jacinto College, and received a degree from the Texas Chiropractic College. He replaces David Sime of El Paso.


Patrick J. Thomas of Corpus Christi is a chiropractor in private practice. He is founder of the Chiropractic Alliance of Corpus Christi and co-founder of the Chiropractic Alliance of Texas, Texas Alternative Health Network and Spinal Disease Management Network of Texas. Thomas attended Texas State University and received a degree in chiropractic from Texas Chiropractic College. He replaces Scott Isdale of Belton.


Tom O. Turner of San Antonio is founder and CEO of Pisces Capital Group and family owner of TETCO Inc. He is a member of the San Antonio Public Library Foundation and San Antonio Academy Alumni Council, and is a past board member of the San Antonio Rape Crisis Center and United Way of Metropolitan Chicago. Turner received two bachelor’s degrees from Washington and Lee University. He replaces Marcia Daughtrey of Tyler.

Committee to Hear HB 998. Your Actions is Required!

Hearing Location and Time: HB 998 (Rep. Fred Brown/Rep. Eddie Lucio, III) is set for a hearing before the House Judiciary and Civil Jurisprudence Committee in Room E2.010 on Monday, March 30th. The committee meeting starts at 2:00 p.m. and will likely continue well into the evening. HB 998 is listed 8th on the agenda, but the committee chair has the discretion to re-order the agenda so the bill could be laid out anytime after 2:00 p.m. In all probability it will be considered in the late afternoon or early evening.

Bill/Committee Substitute: HB 998 will make the Administrative Law Judge (ALJ) the final decision-maker in contested occupational licensing cases at the State Office of Administrative Hearings (SOAH). A committee substitute for the bill is expected to narrow the application of this legislation to just health care provider licensing for agencies that fall under the Health Professions Council (i.e., Texas Medical Board, Texas Board of Nursing, Texas Physician Assistant Board, Texas State Board of Acupuncture Examiners, etc.) The committee substitute is also expected to crystallize the effective date of the new law so it will be any decision rendered by a SOAH ALJ on September 1st and thereafter.

Testimony and Registering Support: The legislation is expected to have full public support and no detractors from the general community; however, some agency personnel may testify as “resource” witnesses. You can make a difference if you will stop by the committee hearing room the afternoon of the hearing and fill out a form registering your support. From parking to filling out and submitting the form and returning to your car, it will probably take no more than 20 minutes. It will be 20 minutes well-spent. Forms in support are noted for the record and can be critical in convincing the committee to pass the legislation out for consideration on the House floor.

Contacting Committee Members and Other Legislators: Whether you can show support at the committee or not, you can also help if you contact your own senator or representative to voice your support. You can also contact members of the House Judiciary & Civil Jurisprudence Committee. Express your support and ask that HB 998 be passed out of committee as soon as possible. See contact information below.

Bill Benefits and Fiscal Note: The Legislative Budget Board has indicated that there will be no adverse financial impact from passage and the legislation can be implemented with existing resources. The new law will have a number of positive effects. Among the positive effects are:
will eliminate extra delay in the current system (no longer waiting for boards to meet);
will cut costs for both the state and licensees (personnel, paperwork, time);
will promote good faith negotiations resulting in more agreed resolutions sooner;
will allow neutral 3rd party expert ALJs to take a burden off of agency board members;
will renew faith in the system by avoiding the extremes of either a “good ‘ol boy system” or bullying by a “punitive, and heavy-handed agency” while reducing the adverse impact of professional bias, political pressure, and media influences.

House Judiciary & Civil Jurisprudence Committee

Note -- To email members using their website email form, go to: www.house.state.tx.us/members
Committee Chair:
Todd Hunter (R) Corpus Christi; District 32
(Office) E2.808 (ph) 512.463.0672 (fax)512.463.2101
Committee Vice Chair:
Bryan Hughes (R) Mineola; District 5
(Office) E1.508 (ph) 512.463.0271 (fax)512.463.1515
Roberto Alonzo (D) Dallas; District 104
(Office) 4N.6 (ph) 512.463.0408 (fax)512.463.1817
Dan Branch (R) Dallas; District 108
(Office) E2.322 (ph) 512.463.0367 (fax)512.322.9935
Will Hartnett (R) Dallas; District 114
(Office) 1N.8 (ph) 512.463.0576 (fax)512.463.7827
Jim Jackson (R) Carrollton; District 115
(Office) E1.402 (ph) 512.463.0468 (fax)512.463.1044
David Liebowitz (D) San Antonio; District 117
(Office) E2.410 (ph) 512.463.0269 (fax)512.463.0555
Tryon Lewis (R) Odessa; District 81
(Office) E2.812 (ph) 512.463.0546 (fax)512.463.8067
Jerry Madden (R) Richardson; District 67
(Office) GW.11 (ph) 512.463.0544 (fax)512.463.9974
Armando Martinez (D) Weslaco; District 39
(Office) E2.312 (ph) 512.463.0530 (fax)512.463.0849
Beverly Woolley (R) Houston; District 136
(Office) GS.2 (ph) 512.463.0696 (fax)512.463.9333

Committee Clerk:
Jennifer Welch
(Office) E2.120 (ph) 512.463.0790 (fax)512.463.0174

Moving to EMRs?

Yesterday, All Things Considered on National Public Radio did a good, insightful story on physicians and hospitals making the move to Electronic Medical Records (EMRs). The story confronted many issues that I have experienced with clients who make the move to EMRs. There are many challenges, pitfalls and costs experienced moving to EMRs. If you are considering the move or just interested, I would suggest you listen to the story and a subsequent interview.

http://www.npr.org/templates/story/story.php?storyId=102333325

Interview:
http://www.npr.org/templates/story/story.php?storyId=102360638

Support HB 998

The most critical piece of legislation that directly effects licensed health professionals has been drafted and it requires your active support. HB 998 [sponsored by Fred Brown (R) and Eddie Luico III (D)] takes final decision-marking authority away from the licensing board gives them to administrative law judges in contested case hearings.

Over the last few years, there has been a significant increase in the issues and concerns from medical professionals, the legal community, and the general public regarding the process and procedures pertaining to disciplinary matters of the various health licensing Board. The Boards including Medical, Nursing, Chiropractors, Dentist, Podiatric, Optometry, Pharmacy, Physical Therapist, Psychologist, Licensed Professional Counselors, Social Workers, Marriage and Family Counselors, and Veterinary Boards.

The current system involves a significant period of investigation of each complaint which typically takes months or longer. Unless the matter is dismissed based on internal agency review, a complaint will most often end up at an Informal Settlement and Show Compliance Conference (ISC) in front of Board representatives where the matter can be resolved by agreement, recommended for dismissal, expedited for possible temporary suspension/restriction or forwarded to the State Office of Administrative Hearings (SOAH) for a contested public hearing before an administrative law judge (ALJ). Most cases that are not resolved by agreement are referred to SOAH.

Under the existing law, the ALJ hears all of the witnesses and considers all of the evidence, but is only authorized to make recommendations to the Board in the form of a Proposal for Decision (PFD). Once a contested case is the subject of a written PFD followed by responsive exceptions and replies by the respective parties, the record and the PFD are routed to the full Board for consideration and the rendering of an order by the Boards.

Ultimately, the Boards can and regularly does change the ALJ’s proposed findings of fact, conclusions of law, and the outcome. The Board is essentially empowered to overturn, vacate, or modify the recommended decision by the ALJ who actually heard testimony, observed witness demeanor, and considered the other documentary and tangible evidence. The Board is only required to explain why it altered the ALJ’s determinations. “Policy reasons” have been deemed sufficient justification to alter and deviate from the PFD.

In short, the licensee is required to be judged and sanctioned by the same body that was unable to resolve the matter by agreement at the ISC or through mediation. HB 998 solves this process.

This process has been described as convoluted and slow. It has also been widely criticized as creating an appearance of unfairness stemming from unbridled centralized power. It is undeniably proving to be an inefficient use of taxpayer funds and agency resources.

By establishing the SOAH Administrative Law Judge as the final decision maker in contested cases, this bill would save money, would free up human resources, would promote more earnest negotiation at the ISC level, would reduce delays in disciplinary action, would improve perceptions regarding fairness of the system, and would eliminate a level of bureaucracy that is neither efficient nor cost-conscious. It would have the added benefit of allowing Board members to take a more active role in the prompt and judicious prosecution of violations before the State Office of Administrative Hearings. The safeguard for erroneous decisions would remain in place as it exists under the current statutory framework whereby either the agency or the licensee can appeal the administrative decision through the court system.

I strongly encourage you to support this bill as I truly believe will result in fair results for both sides. This bi-partisan bill will bring balance to the relationship between licensees and their Boards.

Please contact both your state representative and State senator. If you do not know who there are, please go to http://www.legis.state.tx.us.

Contact them by phone, e-mail, and letter. Also contact Representative Todd Hunter, chair of the House Committee on Judiciary and Civil Jurisprudence who will hear this bill in the near future.

On-Line Posting vs. Doctors

ABC news ran a story regarding consumer reviews of doctors.


http://cosmos.bcst.yahoo.com/up/player/popup/?rn=20826&cl=12381541&ch=130510

The story is interesting in that it appears to pit doctors vs. patients. I think this is somewhat unfortunate. Nevertheless, it does speak to the critical nature of good communication skills with the patient. All the negative comments sited in the piece deal with the doctor not communicating well and making the patients wait too long for too little care.

There are ease solutions to such problems, such as advising patients of wait times due to a medical emergency and to ensuring that all the patient's questions are answered. Studies have shown that improved communications decrease the likelihood of malpractice suits, and I believe that also translates into Board complaints. Food for thought.

Perry Appoints Two Members to Acupuncture Board

Gov. Rick Perry has appointed two new public members Suehing “Sue” Chiang of Sugar Land and Linda Wynn Drain of Lucas to the Texas State Board of Acupuncture Examiners for terms to expire Jan. 31, 2015. The board regulates the practice of acupuncture in the state of Texas.

Chiang is a retired elementary school teacher and current substitute teacher for the Fort Bend Independent School District. She is a past member of the Governor’s Commission for Women, and a member of the Sugar Land Parks and Recreation Advisory Board, Fort Bend County Judge Citizen Advisory Committee and Fort Bend ISD Education Foundation Board of Directors. She is also a member of the Methodist Sugar Land Board of Trustee. Chiang received a bachelor’s degree from the University of Houston. She replaces Sheng Chen of Austin.

Drain is a partner at Nolte, Drain and Rosenthal PLLC. She is a member of the Collin County Bar Association, Collin County Criminal Defense Lawyers Association, and Texas Bar Foundation. She is also a founding member of the Collin County Bench/Bar Association and the CITY House Board of Directors. Drain received a bachelor’s degree from Texas Southern University and a law degree from South Texas College of Law. She replaces Pedro “Pete” Garcia of Frisco.

Why Physician Ads Should be Pre-Approved.

The concern with advertising regulation by the Texas Medical Board (TMB) is the potentially false or misleading advertising. While the TMB has rules on the subject, little is done to educate physicians, clinic personnel, and office administrators about the pitfalls in physician advertising and there is really no mechanism in place to steer them clear of missteps prior to promulgating advertising that is in violation.

Instead, the TMB has simply taken a no tolerance stance on advertising violations that amounts to “if it’s wrong you’ll be fined or otherwise disciplined regardless of why its wrong.” Physicians are held strictly responsible for any advertising violation even if there are significant extenuating or mitigating circumstances. For instance, a physician who used trusted family members and well qualified marketers and web designers to put together a clinic website was held accountable even though lied to by one of the design team that said the language had been cleared by a legal review when in fact the team member did not run it by the doctor’s attorney. Situation was saying the doctor’s specialty was best able to handle certain conditions, which is a violation of Board rule for advertising professional superiority. It would be the equivalent of a circulating nurse falsifying the sponge count when a surgeon is closing after surgery and then holding the doctor responsible for leaving one in the patient even though he specifically asked the nurse if the count was correct and the nurse lied. It led to a $1000 fine and a permanent disciplinary record for advertising professional superiority that is not readily susceptible to proof. No patient was harmed and the complaint was most likely filed by a competitor. The doctor otherwise had a clean record and a long and respected career in a difficult specialty.

Similarly, doctors are disciplined for advertising violations that include leaving off the name of the certifying organization and simply stating “Board Certified” in a particular specialty without identifying the specialty board or for having mistakenly cited to specialty boards which the TMB doesn’t recognize by rule as sufficiently legitimate. Others have faced disciplinary action for one word errors such as saying “the” leading clinic rather than “a” leading clinic. Such violations are often tied more to marketing personnel at the clinic and oversights by administrative personnel rather than busy doctors delving into and trying to dodge the intricacies and nuances of physician advertising regulation in Texas.

From my experience, patients being misled is not the catalyst for action. Instead, it boils down to competitors not liking the ads and the TMB trying to boost its disciplinary numbers to look stronger to the legislature, the media, and consumer groups. Currently, physicians who violate advertising regulations without intent despite best efforts are lumped into a group of advertising violators who push the envelope intentionally. The solution appears to be addressing the problem on the front end.

Rather than investigate and pursue a myriad of advertising violations with the expenditure of resources that could be used on quality of care cases, and rather than stigmatize doctors with disciplinary actions on the back end of the equation, there should be an advertising pre-approval system much like the State Bar has for lawyers.

Yes, physicians would have to pay a fee to get advertising pre-approved and would have a delay before they could circulate an ad; however, it is better to do that than go through a prolonged investigation and end up with a higher cost in legal fees, time lost out of clinic, and an agency fine. The fee would self-fund the program.

While the TMB in could set up a system through their rule making authority, they have been reluctant to do so — presumably due to the time and cost.

It should be kept in mind that a disciplinary action by the TMB can have far reaching adverse impact on a physician. If later disciplined for anything else the prior action is an aggravating circumstance even if different subject matter and can result in stiffer discipline in the second situation. Even advertising violations must be reported each time a physician seeks a license or license renewal in another state, seeks employment, credentials or re-credentials at a hospital, applies or renews participation in a managed care plan, or obtains or renews malpractice coverage. It remains a part of the physician’s permanent online profile on the TMB website and in TMB public records. Much of the time and money spent on these ramifications could be avoided by an advertising pre-approval system.