THURSDAY MAY 28, 2009 Texas Medical Board Meeting
Executive Session at 8:35 am to discuss Item # 1 on Agenda – Discussion of personnel matters.
Robert Simpson, the Board’ General Counsel, resigned last week. Nancy Leshikar was named interim General Counsel. Ms. Leshikar was the Litigation Manager. Scott Freshour was named interim to that position.
Joe Tabarraci was counsel to the Board to this meeting.
On Friday, the Board will hold election on Friday to elect a new Vice President. Mr. Tim Turner indicated he was interested. If he becomes Vice President, then there is a Secretary /Treasurer opening. There will be a call from the floor for nominations on Friday. Dr. Price’s term as Vice President expired last meeting when his term expired.
Finance Committee at 9:10 AM
General Revenue appropriated 6.5 M expended 2.4M
Received 18.4 M in revenue. 2.6 M appropriated
1.7M in dedicated funds as of April 30
General Revenue and Gen Revenue Dedicated are 2 separate funds that cannot mix.
Problem – Controller’s office said they could take money out of one pocket, but then it changed and said no. They had this agreement to use funds from the fund in question in writing. Decided to start charging for something they had not charged for before. They met with the LBB and Board members contacted their legislators. Found out yesterday the issue has been resolved where they will not suffer a 1M loss. The legislature expected the Board to raise the money needed. Julie Attebury stated the Board has always brought in more revenue into the system than needed to cover expenses, but all revenue goes into the system, and they will only give you back what they want to give you back. The Board will need to make some changes and start tracking the cash more closely.
Had adjustment for the $800,000 but got additional money
They have received money to hire additional employees. They can hire a person to do education, hire an IT person, hire additional staff and make adjustments to staff salaries since they were told they were underpaying staff. The Board will need to raise fees. License renewals for all licenses will incur an increase of $28.50 per year.
They will now have a challenge of where to put people. The Board will be increasing staff by 14 – 20 people. They have requested the people in charge of space do a walk- through and consolidate other spaces so TMB can get more space and possibly keep al staff in one location. The other option is to remove one of their divisions and put it into lease space. They do not want to do this, but that will probably need to happen.
Question: Is there another avenue to increase fees other than licensure? Mari Robinson’s response is” not really”. Need to raise an additional $5M.
Question: What was the result of the idea of selling large Medical License certificates? This endeavor will take a rework of their web page to allow people to do that and it is simply would not bring in enough money. Every other board raised fees. There has not been a fee increase for over 5 years. Dr. George Williford asked should there be a definite program to explain why the fees are being increased. He hopes there is some thought about how the message will be presented.
They now have money to create the educational system where they go out into the community every month. Spoke with TMA about crafting a message stating: “This is what the legislator has decreed, and this will pay for what you want.” 1) Physicians have indicated that they would like to be involved in the initial review process. 2) Offer free CME in 12 different cities. 3) Improving the IT systems in order to make systems more user friendly. Dr. Williford learned from legislative session that they need to continue to get the message out about what is going on at the Board. Educational sessions may include pod casts. Suggestion to use all communication conduits to make the Board seem fairer.
Question Dr. Scott Holiday asked how do our fees rank compared to other states. Considering that TX has biannual registration, probably about the middle or the top third. $400 of the fee is an occupations tax. If you take that away, the fee is really low. In comparison, some states have income taxes.
Dr. Irvin Zeitler feels that communication and education to the doctors will help them to understand the need for the fee increase. The rules will go into effect Sept 1, 2009. First registration group will go into effect Nov 30, 2009. This time period will give them time to figure the best way to inform current licensees. They are considering a letter to be read at the time of online registration. Dr. Williford cautions that this is not adequate, as doctors and other licensees will begin to hear about the increase before they need to re-register and spread negative opinions about it without understanding the rationale.
Item # 4 Change to 171.3F: There are 2 sets of fees changes within this rule. Acupuncture providers could submit between 1 to 10 CAE courses and there would be a flat rate. Change to fees will reflect a fee per course basis due to the amount of time needed by staff to review multiple courses where they only paid the flat fee. Change to 172 also.
Welcome to new members. They will be introduced on Friday, May 29, 2009 and will be invited to make a statement.
DISCIPLINARY PROCESS REVIEW COMMITTEE
Called to order 9:55 AM
Dr. Melinda McMichael opened the meeting as chair for the committee.
Three people appearing for appeals --2 under jurisdictional, 1 under jurisdictional not-filed.
Went into Executive Session 9:57 am Ended Exec session at 11:41
08- 576 Psych facility and use of Seroquil in an amount not ordered by the physician. Could direct TMB to refer to the Nursing Board to look at the actions of the nurse and the doubling the dose. Ms. Julie Attebury moved to refer to nursing board. Deny appeal as to the physician.
09-0031 Case with feeding tube placement. And death certificate. Dr. Zeitler questioned about the death certificate. Physician has 10 business days to sign this. Expired on May 5th and document signed on the 21st (12 days). Really don’t know when the physician received the certificate. Dr. Allan Schulkin moved to deny the appeal regarding feeding tube. Dr. Zeitler Moved to go back and get records from the funeral home as to the delivery and receipt of the death certificate.
08-3978 Denied the appeal. The law required a report be made if there is suspicion of abuse. This doctor was required by law to file the report.
08-2261 Dr. Patrick Crocker – overview of the case: 60 year old male died suddenly with URI. Appeal based on suspicion of pulmonary embolus that was not diagnosed. Patient was treated for URI, bronchitis, possibly pneumonia. Died in hospital. Post mortem did not show signs of pulmonary embolus. Not enough info to grant appeal.
08-2467 Elderly lady presented with abdominal pain and weight loss. Did not have CT scan three months later found with abdominal cancer. He agrees with the dissenting panelist that the standard of care required a CT scan in an elderly patient. The key factor was the weight loss. An appeal would require a new set of experts with specific questions for them to focus on. Question: Should a CT scan be done? One of the panelists was a physician in the military and Dr. Williford wondered if the Standard of Care was the same in the military as in secular medicine. Dr. Williford moved to send to another set of experts focusing on the question above.
LEGAL CASES 07-5994 08-0351 Felt they did not have all of the information in the file. Main issue was upcoding. Panel found that post ISC docs may lead the panel to believe this was not a violation of upcoding. Dr. Margaret McNeese could not find a report of what happened at the ISC. There is a very brief memo. A letter was sent out indicating dismissal to the Doctor. Executive Session to discuss above case
Moved to appeal by sending back for review to verify the number of files audited.
Case: 16 yo female Doc doing examination without gloves or washing hands. Dr. Zeitler wants to recommend sending a letter to the doctor pointing out the consequences of what he did. Motion to deny appeal and write a custom letter. Passed
Motion to deny remaining appeals
JURISDICTIONAL NON-FILED COMPLAINTS
Motion to deny appeals except for 08-3978
Working in session during lunch. Board Members sat reviewing cases.
06-1133 Second review of this very old file says no violation occurred. It was completely re-reviewed. The original DPRC did not feel that the reviewers did a complete job. The files were lost when they switched over to computer files and recreated the file. Voted to Dismiss the case
Item # 4 ENFORCEMENT REPORT
April numbers. Expect to have as many investigations as in 2007, which was a watermark year. Difficult to get cases through the process. There are currently 1,600 active investigations. Staff members Rui Bernardo and Kim Ferron are working on getting assignments for consultants done. They do not have enough panelists to review files. Lots of the invitations they sent out did not come back. Robinson made an appeal to the Board to think about asking people they know to become Board panelist.
They are looking for oncology, pain management and neurosurgery especially.
Dr. Alan Moore, the Medical Director, spoke about the tutorial. All of standard of care complaints for 2008 were reviewed. Dr. Moore will be recruiting panelist with the offer of CME for reviewing cases. He plans to visit campuses to recruit people. This will start in July. He will also be speaking with specialty societies in Texas. Some are requiring members to serve on the Expert Reviewer panel of the TMB
There have been 532 ISC this Fiscal Year. Last year 532 total ISCs. Eleven additional staff will help, but they do not have any addition board members. Dr. Crocker Question: brought up about continuances. Wondered how to improve on cases getting rescheduled. The rules were made more stringent beginning after the Feb 2009. The numbers of continuances have dropped significantly. They did not have exact numbers. The rule is after first 5 days, they loose their easy access to a continuance. 344 ISC held in same time period for 2008. Summer will be even busier. Biggest filing months for SOAH is June, July, August. Projecting a record increase.
Dr. McNeese Question on Experts. Could Dr. Moore send an email to Board Members indicating who they need. Board members can reply with suggestions
Item # 5 PRIVATE LIST OF WAIVERS
People subject who are in compliance and want to waive their appearance before the Board to save time for ISC’s
Five Expert Panelists are being recommended to be added to the List. Board moved to approve the entire list. Motion carried.
QA rejected files
Dr. Williford QA Standard of Care 08-2026. Concern on panel report. He feels it is completely out of line and totally inappropriate. The report was quoting individuals three different times, which Board members do not need to be reading. He wonders what the cost was for this. The report is too big and it goes on and on. Is there a way to have a more concise report. The report is 35 pages long. Dr. Moore offered that he is working on a tutorial for panelist in order to prevent situations like this. The panelists have not had the benefit of learning what the TMB wants. Motioned to go back for another review
09-1479 Lady who fell cut her leg. Expert panel did not find SOC on initial visit tetanus booster was not given. When represented, the tetanus was given. Given CME and fine for untimely administration of tetanus. Dr. Crawford felt this was a little overboard. This case was being presented for dismissal.
08-3799 16 malpractice suites. Respondent’s behavior has become increasingly unstable, seen walking around his office wielding a baseball bat. Throwing phones, foul language. Option to send to ISC to address Unprofessional Conduct issues. Dr. Williford Question: How do we globally help this guy, because obviously, something is going on. 8 of the malpractice have been investigated and dismissed by the TMB. Currently, 2002, 2003 investigations are still open. They can request he appear at an ISC, put him under an order and require a psych evaluation. Dr. McNeese Question: Is there enough here to bring him to ISC and require the evaluation?
FAST TRACT CASES
09-4350 Death certificate case received on 14th signed on 15th. The complainant says the doctor is not on the electronic system, but the certificate was signed in time. There is no problem. Motion to dismiss with custom letter to get on the electronic system.
09-3991 Admits they did not release the records on time. Complained the fine was too high. Go ahead with order to pay fine with letter saying fees are set by TMB
09-3691 Medical records case. Physician did not release the paper records within the time frame, even though they release all the electronic records. The doctor sent a response letter saying that after receiving a letter from the Board, they sent the paper records
90-3418 Medical Records case. The physician had done the exam and sent the records back to the entity that requested the evaluation. The physician has filed a cease and desist harassment notice to the patient stating that they do not have any records, as the records are with their PCP. Dr. Zeitler moved to dismissed.
09-3306 Respondent did sign the death certificate on time, but filled it out wrong twice. Complainant filed that if the physician would get on the electronic system, these types of errors would not be made. Moved to send a custom letter.
08-9550 Advertising case. Saying Board Certified, but it eventually expired and she was getting recertified and had her webmaster removed the designation the next day. Moved to dismiss
09-2723 Person requesting documents – it was unclear if this person was able to request records. There is no proof either way. Moved to get more information
09-1203 Medical records. They said united health care said not to release the records and physician said they didn’t want to release a second set of records because they could be accused of double billing. Moved to close with letter explaining the records release rules.
09-4287 Death Certificate. Compliant about physician was not on the electronic system. Moved to send custom letter.
09-3917 Advertising violation. Physician had more experience with an eye procedure than any other doctor in Houston. Should have said, I was the first in Houston to do this procedure. Physician responded that he had removed the offending statement and the complainant was satisfied. Move to contact respondent and review at future date. Passed.
09-3501 Death certificate case Doctor refusing to get on electronic system. Moved to send custom letter.
The electronic system is difficult to use, hence the reticence to begin using it
09-3693 death certificate case. Moved to go back to gather more info
09-3246 Med records case. Call for records, mailed them, but did not get proof of delivery. There is no proof from the other side that they actually requested the records. Dr. McNeese moved to dismiss as there is no proof of the request.
09-1396 treatment of cardiac arrhythmia in 20 year old patient. Dr. Crawford Motion to recommend CME in a custom letter
QA Rejected SOC 09-3490 Mr. Baucom: Doctor accused of practicing without a license and writing prescriptions. For pain medication, but no evidence of this. License suspended since 2001. Not practicing, but they are a physician and may appear as an expert witness. The Complainant did not have any evidence except a business card. Motion to dismiss for lack of evidence. Meeting adjourned at 3:24 PM
HB 3674 goes into effect as soon a Governor signs the bill or 20 have passed, which ever first. This means that Board certified doctors from unapproved schools can get licensed without completing Form Z. Also it does away with the requirement on showing proof that one can be licensed in the nation in which one graduates medical school from. If the applicant is not Board certified, then they still must show their school is substantially equivalent.
Texas Medical Board Meeting
FRIDAY, May 29, 2009
Executive Director Report
After June 2nd the Board will send out an email to reflect what actually happened with Bills affecting the Board
Regarding rule to allow States to share information, but guard the confidentiality. TMB does not release disciplinary files because each state has their own laws and the TMB does not have assurance that other states will follow Texas guidelines. Adopted a resolution to develop a Federal Law.
Senator Shapely report through Robinson
Regarding underserved areas in El Paso. This area needs 640 additional licensees to provide for the surge in population in the next few years. Shapely has asked for the TMB’s help in serving these areas. The Board is working on holding seminars in this area and producing a pamphlet on all the ways the TMB can license. They cannot recruit, but can make applicants aware of this need. This perceived need is due to military base closures and adequate numbers of medical providers will not be moving to the area from the closing military bases. Senator Shapely is reaching out to many different institutions.
They are moving forward with installing security cameras in the ISC room. The panel table will be at the back of the room near the doors.
Dr. Moore reporting that Robinson did a fantastic job at the Texas Legislature. She and Jane had a great game plan. He was reviewing the cases , working toward being prepared for the DPRC Meeting. It confirms that the dual leadership model definitely works during legislative sessions. The litigation attorneys are consulting him on a regular basis and lots of Q & A is going on. The tutorial to send to the expert panelists was delayed in its targeted launch date of May and will probably go out in July. He attended the TMA meeting.
TMA Resolutions passed: Utilization Review , Rule 190.8 already includes this. Dr. Moore indicated to the TMB that this was already in the rules. Investigation of Physician in training. Suggested change that the initial contact be made with the residency program director. They want to simplify the current process. Statutes prevent the TMB from discussing this with the Residency Program Director. Referred this resolution back. For Administrative violations, may invoke a statute of limitations of 7 years unless a minor, keeping in mind rule 165.1. Resolution about medical experts that come from other states to testify needing a temporary license. They amended this based on Dr. Moore’s suggestion that the TMB does not consider testifying as the practice of medicine.
NOMINATIONS AND ELECTION OF OFFICERS
Nominations from the floor: Benevides nominates: Dr. Melinda McMichaels for Vice President. First he did a tribute to Dr. Price and the fine job he did. Excellent leader who is calm, cool, collected, clear speaking. The board looks after 61,000 licensees.
Dr. Michael Arambula nominates Mr. Turner. He Feels Mr. Turner is in a prime spot from his “watchtower” in Houston.
Dr. McMichaels: Although she was not actively seeking the position of VP, after meeting with legislators this spring, she feels the VP needs to be a physician. Dr. Moore is proving to be an asset to the Board.
Mr. Turner: Been on the board 6 years on Executive Committee for 2. He was the only member of the Executive Committee who sat in on the decision to divide the Executive Director position between a Medical Director and an Executive Director. He is actively seeking the position of VP and what he has done proves he has the leadership needed for this role. He actively launched a solicitation of funds to set up the LIST system. He sought the funds directly. He was instrumental in Pill Mill Legislation and worked with lobbyists for the TMA. He stood up to Senator Patrick and Dr. Hotsey in Houston. He has not missed any of the meetings except for his wedding.
By secret ballot, Dr. McMichael is voted the new VP for the Board.
Agenda Item # 6 Open Forum for Public Comment to Address the Board. Robinson stated that they would review if they would continue to allow Open forum. The Board agreed to continue.
Dr. Zeitler did a presentation to Ms. Ragette, who was present, for her years of service on the Board.
Item # Specialty Board Certification in Advertising
The board has outlined which certifications they will accept: ABMS ABOS, Maxifacial groups are primarily the groups recognized by the Board to be allowed in advertising. American Board of Pain Intervention wanted formal recognition from this Board to allow their members to use it in advertising. They presented material why they should get recognition. The entirety of membership is 130 members from 37 states. Robinson says if you approve this group, many other groups will ask for recognition. There is no precedent for this, except for the Maxifacial. McMichael: There are many of these Boards that only require signing up to join and become a diplomat. Some do have training and testing requirements.
Agenda Item # 10 NON PUBLIC REHABILITATION ORDERS Motion passes
Agenda Item # 11 AGREED ORDERS
In 1992 Order for misdiagnosis of a patient. Current order for non therapeutic prescribing. Board members wanted a chart monitor for 2 years.
Dr. Charles Oswald: objection and asked for dismissal. Dr. Arambula distonic reaction to Haldol, tightening of the muscles is rare and even rarer in younger patients. The patient was 59 and it is unusual for this allergic reaction to occur. Mr. Timothy Webb: During the ISC, the physician was rather nonchalant and that was disturbing to him. The expert panels did not attribute the death to the administration of the Haldol and the patient was recovering from the effects. Motion by Dr. Crocker to amend to drop the public reprimand and change the 20 hours of CME on risk management to 10 on pharmacology. Motion passed.
Dr. Oswald: Neonatologist misdiagnosis. Wants to reduce the 30 hours of CME in one year to 2 years, as it would be physically impossible to do this in one year. Passed
Ms. Attebury: Psychiatrist who had sex with patient and had a relationship with her. Long term relationship and provided drugs as well. This was co-mission. Ms. Attebury: Question about where a public reprimand is best used. Ms. Paulette Southard: Did not like the doctor one bit. It is a felony for mental health providers to have sex with a patient, according to Dr. Arambula. Ms. Southard read a nonchalant letter from the respondent where he admits to having mutual oral sex, but there was “no coddling or intimacy used as a therapeutic technique. Respondent was a 79 year old male with degrees in psychiatry and law. The physician signed a prescription for meds to be administered by a prescription assist program on the date the relationship began, which technically re-establishes the professional relationship. Motion to amend for a public reprimand.
Ms. Attebury: Patient expired from myocardial infarction when the EKG was normal. The non action did not seem intended and feels it does not warrant a public reprimand. Motion to remove the public reprimand.
Dr. Arambula: Question on Louisiana Board suspending physician’s license. The case involved an impaired physician. Can this physician still practice here? Texas has him under order if he comes back to Texas to practice. After discussion Order approved as written.
Dr. Arambula: sexual relationship with patient after prescribing opiates. Prior to this relationship, respondent engaged in similar relationships with other patients. Order required female chaperone with female patients. Ms. Southard: Motion to limit practice to male patients only. Mr. Turner: concerned modifying Order will allow this physician to practice while the case awaits the SOAH process.
Went into Executive Session to discuss details. Passed motion to limit practice to male patients.
Passed all non -pulled orders
190.8 Comment from Debora Smithers, nurse. Her concern is it will be the nurses who prescribe and if there is contra- indications, they would not be aware. Motion to approve.
Item # 25 telemedicine rules. Public comment – concerned that they are too restrictive. Suggestion to withdraw the rule and get more input from stakeholders. Given the unknown status of the legislature, they would like to withdraw. Motion to withdraw for further clarification and review by an interim group. Motion passed.
Motion to approve Items :
Item #1 A Board Minutes for April 3, 2009 and
Item # 1 C Disciplinary Panel minutes regarding Dr. Gadasali. Motion passed
They skipped over item B: Consideration and approval of march 24, 2009 disciplinary Panel Minutes regarding Shirley Pigott, M.D., Temporary Suspension with Notice
Item # 2
Finance Committee: Robinson suggested change the increase to license fees to $64 bi-annually . This change came from information from the legislature on the need for the Board to raise additional income. Motion carried
Executive Committee: discussion of interim general counsel, discussion of the election of officers. Motion to approve. Passes.
Disciplinary Process Review Committee: 11 appeals denied, 1 being referred to nursing board. 15 appeals denied on # 2. 5 new Expert Panelists were approved. 355 case files closed 2 continued, 11 recommended for closure. 2 referred to ISC . Minutes accepted (This was all I could record, as Dr. McMichael was rattling the stats off quite rapidly.
Licensure: 3 granted unrestricted ,2 ineligible, 5 deferred, 1 granted TX public health license. 3 surgical asst, 1 request for rehearing. Rules be published with changes noted. Minutes approved. Meeting adjourned 12:09 pm