Medical Board Thinking of By-Passing the ISC Process

The Board members and the Board staff have been overwhelmed by the number of Informal Settlement Conferences (ISCs) over the past two to three years. Last fiscal year, which ended on August 31st, the Board held 775 ISCs. There were 521 in 2007 and 482 in 2006. The staff does not foresee a halt to the number of disciplinary cases.

The Board is considering the idea of creating a rotating Panel of five people, made up of Board members and District Review Committee members, both physician and public members, both MD and DOs. This Panel would meet for a limited amount of time to pre-review cases and send cases to ISC if necessary. They would meet by phone. They would have the authority to dismiss, offer the individual a settlement offer without a hearing or refer the person to an ISC. According to staff, the recommendations of the Panel would not be binding.

A similar system has been in place in licensure for a few months and it has cut down on the number of applications before the Licensure Committee.

My Take: Depending on how its done, this could be a plus or it could be a minus. The Board is criticized for doing things behind closed doors (unknown complaints, unknown experts, ISC Panel members are not disclosed, no right of access by the licensee to see the investigative file), so if this is another group of people who will meet in secret to make decision that the public nor the licensee is aware of, that will be a problem. My experience with the licensure process is: if the recommendation is rejected, you will likely end up with the same thing. That may be legitimate and it may not. But from a perception issue, it looks bad. I also wonder if this is even allowable by the statute and the Open Meetings Act. We’ll see how things play out.

Notes From Disciplinary Process Review Committee 2/5/09

For reasons under know, Board staff isolated those seeking to appeal a dismissal of their complaints. They all waited in a room off from where the meeting is held. All appeals are heard in Executive Session, thus away from the public. It is important to note that physicians are not advised that their cases are under appeal.

Board staff reported that for this fiscal year (runs from September 1 to August 31), the number of investigations opened and generally equal to last year. Last year, the Board opened 2725 investigations.

What is interesting, and we did not hear an explanation for this, but the number of Informal Settlement Conferences (disciplinary hearings) are up from last fiscal year. In all of fiscal year 2008, the Board held 521 Informal Settlement Conferences, which 19% of the total investigations. This year, 1/3 of they way through the year, the Board has already held 224 Informal Settlement Conferences.
Staff advised Board members, the Board five to six Informal Settlement Conferences for each hearing date. The Board staff is restricting the granting of continuances.

Mari Robinson, the Executive Director, recommended to the Board members that the agency should pursue federal law changes that permit all physician licensing agencies agree to share all files regarding physicians. Also, she wants the agencies to retain the confidentiality protections they had in its original board. The reason for this is Texas has stricter rules regarding confidentiality than many other states. The concerns is that releasing information to sister agencies may compromise Texas records. As an example, in Iowa, their hearings similar to that of Informal Settlement Conferences are open to the public. Any information that Texas may supply to the Iowa Board would be released in Iowa, but would be completely restricted in Texas.

The Board members voted to have staff purse a recommendation to Federation of State Medical Boards to have confidentiality laws conform across state lines.
Dr. Alan Moore, the Medical Director, reported that he is working hard to get more panelists to review records for the Board. He has recruited 14 new physicians so far. He reported that doctors are just not responding to the request letters. Lots of letters have been sent out to doctors across Texas. He reports the Board is in dire need of neurosurgery monitors.

A Board member asked Dr. Moore whether Texas Medical Foundation (TMF) was guarding its list of expert. Dr. Moore stated TMF has a new medical director and they had talked. It appears TMF will share its list with the Board.
Dr. Moore shared an idea to award Board consultants CME hours for reviewing cases.
Kim Barron was introduced as the Board staff member who is handling the recruitment of panelists. Dr. Moore reported that he trying to increase his exposure to the reviewers and monitors.

My Take:

1. I take issue with the appeals process for complaints. I feel that the practitioners should receive notice. I also feel that a strict standard should be established to re-open a closed investigation. Currently, there is not a strict standard of when an investigation is re-opened.

2. The numbers disciplinary continue to increases. If the disciplinary hearings trend continued and the number if investigations continue to remain strong, but flat, that means that a quarter of investigations will result in ISC if these numbers hold true. Therefore, I believe it is critical that people get help as soon as possible in the investigative process and not wait until and hearing is set to get expert assistance. Self-serving I know, but the numbers don’t lie.

3. Rather than continue to make everything confidential, I think the Board, and the government in general, needs to work on transparency; not secrecy.

4. The lack of consultants for the Board has resulted in a serious backlog of cases. I wish Dr. Moore good luck locating consultants. The key is, however, there needs to be better training and mentoring of these individuals. I cannot tell you how many reports that can be distilled down to: I would not do it that way; therefore, it’s below the standard of care. Sorry, that is not the measure. Medicine is as much art as science. Individual physicians need to have the flexibility to use their judgment to care for patients.

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.

Recording ISCs?

Recording ISCs - Notes from the June 2008 Texas Medical Board Meeting

There have been some serious allegations concerning ISCs that have been brought to the legislature of things that have been said and done at ISCs. However, neither the Board members nor the lawyers are able to recall these events to respond to the allegations. In order to defend themselves against such allegations it was proposed that all ISCs be recorded. These recordings would be releasable to the legislature but not the public. Although it is still up to the Board how this recording process will be implemented, the recordings will not be discoverable. Settlement agreements are not admissible in trial. These recordings will also be kept confidential in much the same way the current disciplinary files are. These recordings will also be made available to Board members so they can review them before Board meetings. It may even be possible to defer a Board decision until a recording can be consulted. Although the conversation leaned towards audio recordings, video may still be possible. A proposal will be drafted and addressed in the August meeting.

My Thoughts: The basis of the discussion appeared to be more of an issue to protect the Board than as a method of recording to for the purposes of fairness. But what is most disturbing to me is that, based on the discussion, it did not appear that recording would be made available to the doctor. This is simply unfair and grossly unreasonable. If a recording is made, the recording must be made available to both parties. Otherwise, it is just a sham. Some attorneys, including myself, would consider not attending ISCs at all if recordings of ISCs are made but not available to both parties. This is just the fair and right thing to do.