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.
Thursday, March 5, 2009
Thursday, February 19, 2009
Full Board Meeting: February 6, 2009
At the Board meeting, it was reported that Board had nine visits from legislators this year. The Board reports it has met with several key legislators, including: Dole, Nelson Reynolds, Brown Allen, and Hartmann. On February 23rd, Mari Robinson, the Executive Order is meeting with the Senate finance committee. She asked for Board member to attend if they could. Rep. Brown has several bills that Board staff plan to closely monitor.
Ms. Robinson reports that staff is in general agreement with the Sunset review report. She also reports that Licensure meet is goals and states that staff is resolving applications in well under 51 days. However, she also reports that the amount of investigations threatens to overload the system.
Ms. Robinson reported the Board staff are working with DEA and DPS regarding pain clinics. They attempting to ensure that any pain management clinic will need the owner to be a licensed physician and the clinic will need to be registered with the board. There will be a fee with the registration. The hope is to reduce overdose deaths coming out of that area in East Texas.
Ms. Robinson reports that the Board is playing an active role on physician health and rehabilitation legislation. Again, the purpose is to move impairtment into a quasi-governmental status where physicians who self-report do not have go through the investigation and disciplinary process. If the doctors follow the guidelines, they will not be subject to action. They are hoping it will increase the numbers of physicians who will seek rehabilitation.
Ms. Robinson reports that AAPS have drafted a bill, which contains items such as: Expert panel will not be confidential; establish an oversight committee for the Board; no anonymity for complainants; the doctor in an investigation can have access to the investigative file; and the Board could not discipline a doctor without a jury trial. Board staff is working on a line by line response to the proposal. Jane McFarland is heading up the effort.
The staff reports the budget they have submitted. They are deleting rider regarding the Executive Directors salary. A Funding analysis determined areas to bring in $2Million more dollars this biennium. The goal is to have the “extra” money to pay for exceptional items in the budget. These are:
1) 11 new staff to deal with increase in investigations and prosecutions. Among the 11 individuals would be hire at least one more attorney and a physician to assist with internal reviews and likely support for the enforcement staff.
2) Information technology,
3) security, updating systems,
4) outreach program to speak to med students, pod casts,
5) merit money for staff.
Board members were encouraged to talk with legislators to get this money.
On the other hand, the Board was directed to cut 2.5 % of 2009 budget as directed by Lieutenant Governor and Speaker of the House. This means $235,000 from the budget. Cuts include:
1. $49,000 saved by not mailing out newsletters;
2. $16,000 out of staff travel;
3. $?? Document storage going to go state library;
4. $27,000 not replacing computers this fiscal year;
5. $8,000 cancelled 1 PA & 1 Acupuncture board meeting;
6. $1,200 not mailing paper license only letter to new physicians;
7. $5,000 not advertising vacant positions;
8. $10,000 not microfilming;
9. $ ?? not using ATT wireless modems;
10. $5,000 eliminating FAX lines for field staff by combing phone line and Fax line in one;
11. $8,000 in travel for management training;
12. $1,200 prior out of state travel (received a scholarship)
13. $ ?? Freeze hiring in licensure, PRC Administrative, enforcement, lawyer enforcement; and
14. $ ?? Putting off SOAH case till next year;
Of the specific cuts it equals: $122,400, thus the ?? will need to add up to $112,600.
There are two other possible cuts that may be considered:
1. $9,00 for not updating the security system; and,
2. $10,000 to cut remaining a TMB board meeting in this year.
Asking to extend the period of time from 30 to 45 day on initial processing of a complaint to avoid docs from reporting to insurance companies and peer review. Inquiry about doing teleconference for simple ISC’s to save money and speed the process
A lawsuit was filed against LMFT Board, wherein the LMFT Board authorized their practitioners the ability to “diagnose” mental illness. This allegedly allows non-licensed physicians to practice medicine. TMA is requesting that the TMB be listed as a party in the lawsuit. Dr. Michael Arambula commented that the diagnosis is based on the DSM, which LMFT practitioners use, however, some conditions such as Delirium is a physical ailment and leads to psychotic behavior. He agrees with the TMA. Consensus of the Board to join with TMA. The Board directed staff to inform TMA they will join the suit.
In late 2007, the AAPS filed a federal lawsuit against the Board. Currently, the judge abated all discovery pending rulings on certain motions.
There are also two open records issues pending in court. TMB has appealed 2 cases in the area of compliance files. There is still a question of whether these documents are open record. Open records division ruled physician monitor reports are confidential. Drug and Compliance reports would be open if this succeeds. The hearing is scheduled for March 4.
Proposal for Decision
Judge Susan Marshall from SOAH spoke on the Dr. Mark Van Wormer case. Dr. Van Wormer was convicted of a felony in New Mexico for misbranding a drug. He served time for the offense and his license was revoked upon incarceration. Judge Marshall concluded his license should be revoked due to operational law. Motion to accept ALJ’s proposal, motion carried.
Approval of Board Orders
8 Orders were pulled and discussed. Several were changed based on discussion.
Rule Changes:
a. Section 162 Rule Change must have active and unrestrictive license to supervise PA’s and APN’s. Motion passes
b. Section 171 Postgraduate training permits. Omitting these. Motion passed
c. Section 172.4 clean up of the reference . Motion carried Section 172.8 substantive change to delete institution with a program of education. Statutory cleanup from a mistake originally made. Three pubic presenters from the Methodist Hospital System. Dr. Gabor asked that the Board not delete this provision. Expand the rule from fellowships to residency programs. Osama Gabor director of Methodist Hospital is in favor of faculty temporary license. This Enables schools to recruit well qualified individuals to do research without a Texas Medical License. His license took 8 months to obtain, as he attended Medical School in Egypt and worked in many different places in the US, which took much time to get the paperwork together. Motion to pull 172.8 to bring to the work group with the intention to widen the circle of accepting qualified reputable individuals to Texas with an FTL. If there is legislation regarding this, it will make it much easier. Staff is currently putting all FTL under this rule on hold. Direction to staff to continue doing what they are doing. Vote for publication in April and adopt at June meeting
d. Section 175.1 and Section 175.3 changing penalty fee, motion passes
e. Section 185.2 PA cannot be supervised by a physician with a restriction on license. Motion passes
f. Section 189.1 statutory changes to the rule, changes to names of the boards
Section 189.4 D same issues on supervising PA’s. Motion passes.
Rule changes to Acupuncture Rule, motion passes.
Ms. Robinson reports that staff is in general agreement with the Sunset review report. She also reports that Licensure meet is goals and states that staff is resolving applications in well under 51 days. However, she also reports that the amount of investigations threatens to overload the system.
Ms. Robinson reported the Board staff are working with DEA and DPS regarding pain clinics. They attempting to ensure that any pain management clinic will need the owner to be a licensed physician and the clinic will need to be registered with the board. There will be a fee with the registration. The hope is to reduce overdose deaths coming out of that area in East Texas.
Ms. Robinson reports that the Board is playing an active role on physician health and rehabilitation legislation. Again, the purpose is to move impairtment into a quasi-governmental status where physicians who self-report do not have go through the investigation and disciplinary process. If the doctors follow the guidelines, they will not be subject to action. They are hoping it will increase the numbers of physicians who will seek rehabilitation.
Ms. Robinson reports that AAPS have drafted a bill, which contains items such as: Expert panel will not be confidential; establish an oversight committee for the Board; no anonymity for complainants; the doctor in an investigation can have access to the investigative file; and the Board could not discipline a doctor without a jury trial. Board staff is working on a line by line response to the proposal. Jane McFarland is heading up the effort.
The staff reports the budget they have submitted. They are deleting rider regarding the Executive Directors salary. A Funding analysis determined areas to bring in $2Million more dollars this biennium. The goal is to have the “extra” money to pay for exceptional items in the budget. These are:
1) 11 new staff to deal with increase in investigations and prosecutions. Among the 11 individuals would be hire at least one more attorney and a physician to assist with internal reviews and likely support for the enforcement staff.
2) Information technology,
3) security, updating systems,
4) outreach program to speak to med students, pod casts,
5) merit money for staff.
Board members were encouraged to talk with legislators to get this money.
On the other hand, the Board was directed to cut 2.5 % of 2009 budget as directed by Lieutenant Governor and Speaker of the House. This means $235,000 from the budget. Cuts include:
1. $49,000 saved by not mailing out newsletters;
2. $16,000 out of staff travel;
3. $?? Document storage going to go state library;
4. $27,000 not replacing computers this fiscal year;
5. $8,000 cancelled 1 PA & 1 Acupuncture board meeting;
6. $1,200 not mailing paper license only letter to new physicians;
7. $5,000 not advertising vacant positions;
8. $10,000 not microfilming;
9. $ ?? not using ATT wireless modems;
10. $5,000 eliminating FAX lines for field staff by combing phone line and Fax line in one;
11. $8,000 in travel for management training;
12. $1,200 prior out of state travel (received a scholarship)
13. $ ?? Freeze hiring in licensure, PRC Administrative, enforcement, lawyer enforcement; and
14. $ ?? Putting off SOAH case till next year;
Of the specific cuts it equals: $122,400, thus the ?? will need to add up to $112,600.
There are two other possible cuts that may be considered:
1. $9,00 for not updating the security system; and,
2. $10,000 to cut remaining a TMB board meeting in this year.
Asking to extend the period of time from 30 to 45 day on initial processing of a complaint to avoid docs from reporting to insurance companies and peer review. Inquiry about doing teleconference for simple ISC’s to save money and speed the process
A lawsuit was filed against LMFT Board, wherein the LMFT Board authorized their practitioners the ability to “diagnose” mental illness. This allegedly allows non-licensed physicians to practice medicine. TMA is requesting that the TMB be listed as a party in the lawsuit. Dr. Michael Arambula commented that the diagnosis is based on the DSM, which LMFT practitioners use, however, some conditions such as Delirium is a physical ailment and leads to psychotic behavior. He agrees with the TMA. Consensus of the Board to join with TMA. The Board directed staff to inform TMA they will join the suit.
In late 2007, the AAPS filed a federal lawsuit against the Board. Currently, the judge abated all discovery pending rulings on certain motions.
There are also two open records issues pending in court. TMB has appealed 2 cases in the area of compliance files. There is still a question of whether these documents are open record. Open records division ruled physician monitor reports are confidential. Drug and Compliance reports would be open if this succeeds. The hearing is scheduled for March 4.
Proposal for Decision
Judge Susan Marshall from SOAH spoke on the Dr. Mark Van Wormer case. Dr. Van Wormer was convicted of a felony in New Mexico for misbranding a drug. He served time for the offense and his license was revoked upon incarceration. Judge Marshall concluded his license should be revoked due to operational law. Motion to accept ALJ’s proposal, motion carried.
Approval of Board Orders
8 Orders were pulled and discussed. Several were changed based on discussion.
Rule Changes:
a. Section 162 Rule Change must have active and unrestrictive license to supervise PA’s and APN’s. Motion passes
b. Section 171 Postgraduate training permits. Omitting these. Motion passed
c. Section 172.4 clean up of the reference . Motion carried Section 172.8 substantive change to delete institution with a program of education. Statutory cleanup from a mistake originally made. Three pubic presenters from the Methodist Hospital System. Dr. Gabor asked that the Board not delete this provision. Expand the rule from fellowships to residency programs. Osama Gabor director of Methodist Hospital is in favor of faculty temporary license. This Enables schools to recruit well qualified individuals to do research without a Texas Medical License. His license took 8 months to obtain, as he attended Medical School in Egypt and worked in many different places in the US, which took much time to get the paperwork together. Motion to pull 172.8 to bring to the work group with the intention to widen the circle of accepting qualified reputable individuals to Texas with an FTL. If there is legislation regarding this, it will make it much easier. Staff is currently putting all FTL under this rule on hold. Direction to staff to continue doing what they are doing. Vote for publication in April and adopt at June meeting
d. Section 175.1 and Section 175.3 changing penalty fee, motion passes
e. Section 185.2 PA cannot be supervised by a physician with a restriction on license. Motion passes
f. Section 189.1 statutory changes to the rule, changes to names of the boards
Section 189.4 D same issues on supervising PA’s. Motion passes.
Rule changes to Acupuncture Rule, motion passes.
Thursday, February 12, 2009
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.
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.
Wednesday, February 11, 2009
Notes from the Executive Committee of the Texas Medical Board from February 5, 2009
The biggest news and least surprising was the Board made Mari Robinson the Executive Director, removing the “interim” tag that she has carried for the past several months.
The Board also approved Dr. Moore to be the full-time Medical Director.
An issue that will dominate the Board and government in general due to the country’s economic crisis is the budget. Thus, the Board is looking at ideas to generate income for itself. Some of the ideas are as follows:
1) A proposal to have the Board offer on-line CME, in such areas as ethics and chart monitoring online. The Board does not have to be certified through a CME group to offer CME. They will have to change the rules to say the Board will accept any Board produced course. Ms. Robinson mentioned that the Board has the authority to change the language. In order to further study this, a subcommittee was formed. Those volunteering include: Dr. Margaret McNeese, Dr. Melinda McMichael, Mr. Timothy Webb, Dr. Charles Oswald and Ms. Annette Raggette.
2) License verification by hospitals, peer review committees or other states will be charged for the verification beginning Sept 2009.
3) Wall certificates – currently applicants receive a letter and an 8 x 10 piece of paper stating they are licensed. They are considering offering (not requiring) a larger, higher quality licensure certificate for a cost of between $30 - $50. This cost range is comparable to other states and Texas is one of the few states that do not offer this.
4) JP Exam questions – currently the Board drafts questions for the exam without charging. They are considering drafting questions and publishing them online with a guide to process the answer results. There will be a charge for this. The Board wants the physicians to KNOW the answers to these questions, not use the exams as a way to “get” them.
The next issue of note was a discussion on how to categorize complaints coming into the agency through Board members. Currently, such complaints are merely labeled “TMB” without identifiers on who specifically requested the investigation opened. This practice has been questioned by some. There is a concern that this is perceived as unethical. Ms. Robinson defended the practice.
There was a discussion that if Board members make complaints, should they be under TMB or under the Board member name. There was agreement that there is nothing wrong with a Board member reporting illegal behavior. Mr. Robert Simpson, the General Counsel, agreed that it was legal for Board members to do so.
Dr. Irvine Zeitler, the Board president, expressed that he has received numerous complaints from all over the state. It is his practice to encourage people who communicate to him to make the complaint themselves. Ms. Paulette Southard also stated that she also directly receives complaints. She states some of the people fear retribution, thus do not make the complaint themselves. Mr. Simpson agreed that it is a “cleaner situation” to have the person make the complaint, but if the person is just not willing, then it may be accept to have the Board member make the complaint.
Ms. Julie Attebury suggested sub-categorizing such complaints. For example, if staff opens a complaint based on information found during the course of an investigation versus a complaint made by a Board member.
The Board members directed staff to allow board members submitting complaints to decide on an individual complaints basis how to classify.
My Take:
1. I sincerely wish Ms. Robinson and Dr. Moore the best of luck. I hope they continue to do outreach and work with all parties, including the defense bar to make this system work for everyone.
2. I have no problems with the Board attempting to generate income. I especially like “giving” the answers to the jurisprudence test. It does not make any sense to play “hide the ball” with those questions, as it benefits everyone to know all the answers to the test. You know the answers to the test; hopefully the licensee will learn the law.
3. On the issue of Board members making complaints, m feeling is that the Board is currently suffering from a serious perception problems on this specific topic. The fact of the matter it does not matter if all complaints made by Board members are wholly legitimate, it does appear to be an abuse of power. As with many things in life perception is reality. Therefore, the Board members need to be careful in this regard. I believe that Dr. Zeitler is correct in his efforts to encourage people who complain to him to report their concerns to the Board. That is the proper method of dealing with this matter. Moreover, if a Board member has a legitimate, factually based concern regarding a practitioner, I do not have a problem with them reporting this. However, I believe the Board member should also sign a waiver to disclose that he or she made the complaint. That transparency will help the Board and the image of the Board. This will diminish the allegations of abuse of power. Note that I said legitimate, factually based concern. I strongly do not believe any Board member or Board staff should file a complaint against a licensee based solely on comments made by someone…that is hearsay, plain and simple. If there is objective evidence that’s one thing; subjective, unsupported comments are another. Whether that has been done or not in the past, I don’t honestly know. But is it the perception that it has that has hurt the image of the Board in the physician community. Transparency is the solution to this issue.
The Board also approved Dr. Moore to be the full-time Medical Director.
An issue that will dominate the Board and government in general due to the country’s economic crisis is the budget. Thus, the Board is looking at ideas to generate income for itself. Some of the ideas are as follows:
1) A proposal to have the Board offer on-line CME, in such areas as ethics and chart monitoring online. The Board does not have to be certified through a CME group to offer CME. They will have to change the rules to say the Board will accept any Board produced course. Ms. Robinson mentioned that the Board has the authority to change the language. In order to further study this, a subcommittee was formed. Those volunteering include: Dr. Margaret McNeese, Dr. Melinda McMichael, Mr. Timothy Webb, Dr. Charles Oswald and Ms. Annette Raggette.
2) License verification by hospitals, peer review committees or other states will be charged for the verification beginning Sept 2009.
3) Wall certificates – currently applicants receive a letter and an 8 x 10 piece of paper stating they are licensed. They are considering offering (not requiring) a larger, higher quality licensure certificate for a cost of between $30 - $50. This cost range is comparable to other states and Texas is one of the few states that do not offer this.
4) JP Exam questions – currently the Board drafts questions for the exam without charging. They are considering drafting questions and publishing them online with a guide to process the answer results. There will be a charge for this. The Board wants the physicians to KNOW the answers to these questions, not use the exams as a way to “get” them.
The next issue of note was a discussion on how to categorize complaints coming into the agency through Board members. Currently, such complaints are merely labeled “TMB” without identifiers on who specifically requested the investigation opened. This practice has been questioned by some. There is a concern that this is perceived as unethical. Ms. Robinson defended the practice.
There was a discussion that if Board members make complaints, should they be under TMB or under the Board member name. There was agreement that there is nothing wrong with a Board member reporting illegal behavior. Mr. Robert Simpson, the General Counsel, agreed that it was legal for Board members to do so.
Dr. Irvine Zeitler, the Board president, expressed that he has received numerous complaints from all over the state. It is his practice to encourage people who communicate to him to make the complaint themselves. Ms. Paulette Southard also stated that she also directly receives complaints. She states some of the people fear retribution, thus do not make the complaint themselves. Mr. Simpson agreed that it is a “cleaner situation” to have the person make the complaint, but if the person is just not willing, then it may be accept to have the Board member make the complaint.
Ms. Julie Attebury suggested sub-categorizing such complaints. For example, if staff opens a complaint based on information found during the course of an investigation versus a complaint made by a Board member.
The Board members directed staff to allow board members submitting complaints to decide on an individual complaints basis how to classify.
My Take:
1. I sincerely wish Ms. Robinson and Dr. Moore the best of luck. I hope they continue to do outreach and work with all parties, including the defense bar to make this system work for everyone.
2. I have no problems with the Board attempting to generate income. I especially like “giving” the answers to the jurisprudence test. It does not make any sense to play “hide the ball” with those questions, as it benefits everyone to know all the answers to the test. You know the answers to the test; hopefully the licensee will learn the law.
3. On the issue of Board members making complaints, m feeling is that the Board is currently suffering from a serious perception problems on this specific topic. The fact of the matter it does not matter if all complaints made by Board members are wholly legitimate, it does appear to be an abuse of power. As with many things in life perception is reality. Therefore, the Board members need to be careful in this regard. I believe that Dr. Zeitler is correct in his efforts to encourage people who complain to him to report their concerns to the Board. That is the proper method of dealing with this matter. Moreover, if a Board member has a legitimate, factually based concern regarding a practitioner, I do not have a problem with them reporting this. However, I believe the Board member should also sign a waiver to disclose that he or she made the complaint. That transparency will help the Board and the image of the Board. This will diminish the allegations of abuse of power. Note that I said legitimate, factually based concern. I strongly do not believe any Board member or Board staff should file a complaint against a licensee based solely on comments made by someone…that is hearsay, plain and simple. If there is objective evidence that’s one thing; subjective, unsupported comments are another. Whether that has been done or not in the past, I don’t honestly know. But is it the perception that it has that has hurt the image of the Board in the physician community. Transparency is the solution to this issue.
Monday, January 26, 2009
Perry Names A New Board Member and New DRC Member
Gov. Rick Perry has made two new appointments to the Texas Medical Board. The first is Scott Holliday, D.O. of University Park to the Texas Medical Board for a term to expire April 13, 2013. He replaces Dr. Roberta Kalafut.
Dr. Holliday is an anesthesiologist at Pinnacle Partners in Medicine and chairman of the Arlington Memorial Hospital Department of Anesthesiology. He is a member of the American Society of Anesthesiologists, Texas Osteopathic Medical Association, and Texas Medical Association. He is also an American Board of Anesthesiology Diplomate, and the Texas Society of Anesthesiologists District 2 State Delegate. Holliday received a bachelor’s degree from the University of Texas at Austin and a doctorate of osteopathic medicine from Kansas City University of Medicine and Bioscience. He completed his anesthesiology residency at the University of Texas Health Science Center at San Antonio.
John Guerra, D.O. was named to the Texas Medical Board District Four Review Committee for a term to expire Jan. 15, 2012. He replaces Bobby Howard.
Dr. Guerra is a board certified obstetrician/gynecologist, and a member of the American Osteopathic Association, Texas Osteopathic Medical Association, and American College of Osteopathic Obstetricians and Gynecologists. He is a member of St. Paul’s Catholic Church where he volunteers as a medical youth educator. Guerra received a bachelor’s degree from the University of Texas Pan American and a doctorate of osteopathy from the Texas College of Osteopathic Medicine.
Dr. Holliday is an anesthesiologist at Pinnacle Partners in Medicine and chairman of the Arlington Memorial Hospital Department of Anesthesiology. He is a member of the American Society of Anesthesiologists, Texas Osteopathic Medical Association, and Texas Medical Association. He is also an American Board of Anesthesiology Diplomate, and the Texas Society of Anesthesiologists District 2 State Delegate. Holliday received a bachelor’s degree from the University of Texas at Austin and a doctorate of osteopathic medicine from Kansas City University of Medicine and Bioscience. He completed his anesthesiology residency at the University of Texas Health Science Center at San Antonio.
John Guerra, D.O. was named to the Texas Medical Board District Four Review Committee for a term to expire Jan. 15, 2012. He replaces Bobby Howard.
Dr. Guerra is a board certified obstetrician/gynecologist, and a member of the American Osteopathic Association, Texas Osteopathic Medical Association, and American College of Osteopathic Obstetricians and Gynecologists. He is a member of St. Paul’s Catholic Church where he volunteers as a medical youth educator. Guerra received a bachelor’s degree from the University of Texas Pan American and a doctorate of osteopathy from the Texas College of Osteopathic Medicine.
Thursday, January 22, 2009
December TMB Board Meeting
TMB Executive Committee: 12/11/08
There was discussion on policies and procedures regarding individuals wanting to speak before the Board as there has been an increase the individuals wanting to address the Board. Ms. Robinson, the executive director, expressed a concern that if people are set on the Board’s agenda it may appear those people have been asked to appear and address the Board. Dr. Larry Price suggested a 30 minutes open forum, with a sign in sheet for those showing up the morning of. It was suggested that this time period go from 12:00 pm to 12:30pm. Those signing up to speak will provide a summary. This policy was approved.
Finance Committee: 12/11/08
Based on the report, there was approximately $100,000 left for the prior year’s budget. There may be some small outstanding receipts that need to pay from this reminder. Board staff estimated that in the first quarter of the fiscal year (which starts September 1st) the Board has spent 23% of its total budget.
Disciplinary Process Review Committee: 12/11/08
The Board heard four appeals of jurisdictional complaints, with one case re-opened. It also reviewed two non- jurisdictional complaints, with one opened to an investigation.
The Board discussed adopting a rule allowing doctors treating patients with STD’s to prescribe medication to their spouses and partners, as this is a public health issue. Some partners refuse to seek treatment due to lack of insurance and other reasons.
Dr. Melinda McMichael has query on limiting this to Gonorrhea and Chlamydia, as they do in other states. Ms. Robinson offers that the more specific you make the rule; the more often it will need to be changed. The Board motioned to adopt this new rule for publication.
Ms. Robinson thanked the Board members for their many nominations for expert panel suggestions, as the Board has experienced a shortage of experts willing to review cases. An appeal was sent out to all the specialty boards requesting nominations. Board member questioned whether it would help to advertise in a publication like Texas Medicine. Dr. Charles Oswalt mentioned that they needed to be careful of advertising in a widespread fashion as it could allow doctors with their own agenda to get their foot in the door and trying to change the way the board operates. Ms. Robinson will speak with Dr. Alan Moore, the Board’s Medical Director, regarding advertising for the panel positions. She is also considering having Dr. Moore begin an auditing program to review the panelist reports. Motion regarding approval of list of panel experts. One individual was removed from the list because his ex-wife was a lawyer on the board. Board approved the list with the one exception
Full Board Meeting: DECEMBER 12, 2008
Arrived 8:12 am
Directors Report: National Federation of State Medical Board -- Board wants to bring resolutions that would allow sharing of information between states. They specifically spoke about Applicants withdrawing applications and then applying in other state. The thinking is that if they withdraw, they may have something to hide and the state boards should be able to communicate this to each other.
Discussion on deleting the set of guidelines regarding anesthesiology assistants. This information will be removed. Board will continue to enforce Rule# 157 regarding physicians delegating to adequately trained assistants. This covers anesthesiologists as well.
Agenda item # 6 No order on this. A discovery motion was filed by Bob Simpson.
Consent Agenda – approved by motion.
Non Public Rehabilitation Orders. One Order was pulled and discussed. The Order was approved with deletion of a duplicate paragraph. Respondent changed specialty to ER medicine. Dr. Kalafut questioned whether this change was to avoid the stipulations of the Agreed Order. He passed the JP exam, and the Order is completed, but then could go back to the prior area of practice. Dr. Kalafut wanted to be sure that this individual would need to come before the Board in order to go back to previous area of practice. And if so, he would be under the original 5 year term of the Order.
8:30AM Senator Armbruster addresses the Board.
Various Proposed Orders were pulled, reviewed and discussed:
One Order was pulled by Paulette Southard regarding a doctor whose patient saw nurse practitioner 9 times from August to September. As x-ray done and found a tumor. Under the Order, the doctor can still able to supervise subordinates. Dr. McMichael proposes a fine for not adequately supervising the nurse practitioner and removing supervisory ability. It was discussed to place a three year restriction. It was proposed to issues a 3 years Order, removing supervisory delegation. Issue a $5,000 penalty and chart monitor. Also the Board directed staff to report the nurse practitioner to nursing board.
One Order was pulled by Julie Attebury as she did not see term for order. Respondent has a PIT and will have to present the order during the licensure process.
Ms. Southard pulled another Order. She questioned an Order regarding a physician who was already under an Order from 2005. She wanted to know why the new Order is only a one year term? Tim Turner explained that there was a specific reason for the one year term. The Order was approved with no changes.
Ms. Southard pulled another Order and expressed her opinion that there should be a fine. Only thing in the order is a requirement to comply with CME requirements. This was a from a fast track order. Sign this order and become compliant on CME immediately. The Order was approved without the change.
Ms. Southard asked about an Order in which a doctor prescribed medications to his son. She was not sure the whole story based on the Findings of Fact. She expressed a concern that when the Order is published in the newsletter, it brings up many questions because there is not enough detail. Rule 198 states -- standard of care – not allowed to prescribe to family member except in emergency and not to exceed 72 hours. It should clarify the board rule governs this controlled substance to a family member in amounts exceeding what is allowed. The drug in question was for ADHD and period was for one month. The Findings of Fact will delete that this was the doctor’s son and state it was an immediate family member and that the drug was on the controlled substance list. This doc was previously disciplined by the board. The first order was for CME violation. Several board members wanted to include the rule violated in the Findings of Fact. Ms. Robinson pointed out it was cited in Conclusions of Law.
Dr. Jose Benevides questioning the period of time for family prescriptions in the current Rule. Costs are same for 3 days of medications versus 30 days of medication. Ms. Robinson directed staff look into changing rule.
All Administrative Orders passed.
All Modification Requests passed.
All Nunc Pro Tunc Orders passed.
All Mediated Settlement Agreed Orders passed.
All Termination of Suspension Orders passed.
The Board reported that if they receive funding , the Board will continue with education outreach for physicians. The report sent to the Board members includes all notes from the town hall meetings. They did 13 meetings in 14 weeks and will not do that again as that was too many. The Board expressed that communication is important and continue to work at outreach. The format will change in the future. Plan to continue to pursue different communication efforts. It was expressed that the Board should take an active approach with informing the medical community.
In terms of outreach, it was express to make regular written submissions through TMA and county newsletters. It was opined as almost no one reads the disciplinary items on the Boards newsletter. Establishing better communication with different stakeholders and having information available at health fairs. Ms. Robinson asked Board Members to thoroughly read the report and give feedback. Dr. McNeese offered that TMA has blast email, which might be an avenue to use for educational items.
Dr. McMichael was named to be liaison during this legislative session.
479 physicians’ licensure applications were approved.
RULE CHANGES
Chapter 163.5 163.5 approved
Chapter 165 161.5 & 161.1 approved
Chapter 166 166.2 & 166.6 will be republished in final form with changes. Robert Simpson, general counsel, recommends passing. Republishing language of established rule approved.
169 – 169.7 approved
Chapt 173 approved
Chapt 178 Complaints approved
Chapt 179 approved
Chapt 180 approved
Chapt 182 Use of Experts – Public comments Elizabeth Naugle. Asked Board to consider changing statutes to include Experts from outside of Texas. She will bring the issue to Legislature. Approved
Chapt 187 approved
Chapt 190 disciplinary guidelines Board looks at AMA guidelines, suggested that they should publish this , but AMA asked them not to, as it can be used as a sword by patients.
Ms. Robinson suggested they approved everything but point # 8 and make adjustments to that point with input from the stakeholders. Approved 190.1 and 190.14.
Motion on 190.8 to direct staff to make amendments
Chapt 192
Changes delete 191.2 which talks about standards for anesthesia services, level one. Regarding certain drugs being available in every O.R. in pre-measured doses. The problem and feedback is they do not come in premeasured form. Dr. Kalafut suggests change “pre-measured doses” to “have on hand” . Specific stakeholder group came up with the initial set of guidelines, but now that it has been implemented, changes need to be made. Will be removing pre-measured. Approved
Shirley Pigott, MD asked to address the Board. Elizabeth Naugle asked to address the Board.
There was discussion on policies and procedures regarding individuals wanting to speak before the Board as there has been an increase the individuals wanting to address the Board. Ms. Robinson, the executive director, expressed a concern that if people are set on the Board’s agenda it may appear those people have been asked to appear and address the Board. Dr. Larry Price suggested a 30 minutes open forum, with a sign in sheet for those showing up the morning of. It was suggested that this time period go from 12:00 pm to 12:30pm. Those signing up to speak will provide a summary. This policy was approved.
Finance Committee: 12/11/08
Based on the report, there was approximately $100,000 left for the prior year’s budget. There may be some small outstanding receipts that need to pay from this reminder. Board staff estimated that in the first quarter of the fiscal year (which starts September 1st) the Board has spent 23% of its total budget.
Disciplinary Process Review Committee: 12/11/08
The Board heard four appeals of jurisdictional complaints, with one case re-opened. It also reviewed two non- jurisdictional complaints, with one opened to an investigation.
The Board discussed adopting a rule allowing doctors treating patients with STD’s to prescribe medication to their spouses and partners, as this is a public health issue. Some partners refuse to seek treatment due to lack of insurance and other reasons.
Dr. Melinda McMichael has query on limiting this to Gonorrhea and Chlamydia, as they do in other states. Ms. Robinson offers that the more specific you make the rule; the more often it will need to be changed. The Board motioned to adopt this new rule for publication.
Ms. Robinson thanked the Board members for their many nominations for expert panel suggestions, as the Board has experienced a shortage of experts willing to review cases. An appeal was sent out to all the specialty boards requesting nominations. Board member questioned whether it would help to advertise in a publication like Texas Medicine. Dr. Charles Oswalt mentioned that they needed to be careful of advertising in a widespread fashion as it could allow doctors with their own agenda to get their foot in the door and trying to change the way the board operates. Ms. Robinson will speak with Dr. Alan Moore, the Board’s Medical Director, regarding advertising for the panel positions. She is also considering having Dr. Moore begin an auditing program to review the panelist reports. Motion regarding approval of list of panel experts. One individual was removed from the list because his ex-wife was a lawyer on the board. Board approved the list with the one exception
Full Board Meeting: DECEMBER 12, 2008
Arrived 8:12 am
Directors Report: National Federation of State Medical Board -- Board wants to bring resolutions that would allow sharing of information between states. They specifically spoke about Applicants withdrawing applications and then applying in other state. The thinking is that if they withdraw, they may have something to hide and the state boards should be able to communicate this to each other.
Discussion on deleting the set of guidelines regarding anesthesiology assistants. This information will be removed. Board will continue to enforce Rule# 157 regarding physicians delegating to adequately trained assistants. This covers anesthesiologists as well.
Agenda item # 6 No order on this. A discovery motion was filed by Bob Simpson.
Consent Agenda – approved by motion.
Non Public Rehabilitation Orders. One Order was pulled and discussed. The Order was approved with deletion of a duplicate paragraph. Respondent changed specialty to ER medicine. Dr. Kalafut questioned whether this change was to avoid the stipulations of the Agreed Order. He passed the JP exam, and the Order is completed, but then could go back to the prior area of practice. Dr. Kalafut wanted to be sure that this individual would need to come before the Board in order to go back to previous area of practice. And if so, he would be under the original 5 year term of the Order.
8:30AM Senator Armbruster addresses the Board.
Various Proposed Orders were pulled, reviewed and discussed:
One Order was pulled by Paulette Southard regarding a doctor whose patient saw nurse practitioner 9 times from August to September. As x-ray done and found a tumor. Under the Order, the doctor can still able to supervise subordinates. Dr. McMichael proposes a fine for not adequately supervising the nurse practitioner and removing supervisory ability. It was discussed to place a three year restriction. It was proposed to issues a 3 years Order, removing supervisory delegation. Issue a $5,000 penalty and chart monitor. Also the Board directed staff to report the nurse practitioner to nursing board.
One Order was pulled by Julie Attebury as she did not see term for order. Respondent has a PIT and will have to present the order during the licensure process.
Ms. Southard pulled another Order. She questioned an Order regarding a physician who was already under an Order from 2005. She wanted to know why the new Order is only a one year term? Tim Turner explained that there was a specific reason for the one year term. The Order was approved with no changes.
Ms. Southard pulled another Order and expressed her opinion that there should be a fine. Only thing in the order is a requirement to comply with CME requirements. This was a from a fast track order. Sign this order and become compliant on CME immediately. The Order was approved without the change.
Ms. Southard asked about an Order in which a doctor prescribed medications to his son. She was not sure the whole story based on the Findings of Fact. She expressed a concern that when the Order is published in the newsletter, it brings up many questions because there is not enough detail. Rule 198 states -- standard of care – not allowed to prescribe to family member except in emergency and not to exceed 72 hours. It should clarify the board rule governs this controlled substance to a family member in amounts exceeding what is allowed. The drug in question was for ADHD and period was for one month. The Findings of Fact will delete that this was the doctor’s son and state it was an immediate family member and that the drug was on the controlled substance list. This doc was previously disciplined by the board. The first order was for CME violation. Several board members wanted to include the rule violated in the Findings of Fact. Ms. Robinson pointed out it was cited in Conclusions of Law.
Dr. Jose Benevides questioning the period of time for family prescriptions in the current Rule. Costs are same for 3 days of medications versus 30 days of medication. Ms. Robinson directed staff look into changing rule.
All Administrative Orders passed.
All Modification Requests passed.
All Nunc Pro Tunc Orders passed.
All Mediated Settlement Agreed Orders passed.
All Termination of Suspension Orders passed.
The Board reported that if they receive funding , the Board will continue with education outreach for physicians. The report sent to the Board members includes all notes from the town hall meetings. They did 13 meetings in 14 weeks and will not do that again as that was too many. The Board expressed that communication is important and continue to work at outreach. The format will change in the future. Plan to continue to pursue different communication efforts. It was expressed that the Board should take an active approach with informing the medical community.
In terms of outreach, it was express to make regular written submissions through TMA and county newsletters. It was opined as almost no one reads the disciplinary items on the Boards newsletter. Establishing better communication with different stakeholders and having information available at health fairs. Ms. Robinson asked Board Members to thoroughly read the report and give feedback. Dr. McNeese offered that TMA has blast email, which might be an avenue to use for educational items.
Dr. McMichael was named to be liaison during this legislative session.
479 physicians’ licensure applications were approved.
RULE CHANGES
Chapter 163.5 163.5 approved
Chapter 165 161.5 & 161.1 approved
Chapter 166 166.2 & 166.6 will be republished in final form with changes. Robert Simpson, general counsel, recommends passing. Republishing language of established rule approved.
169 – 169.7 approved
Chapt 173 approved
Chapt 178 Complaints approved
Chapt 179 approved
Chapt 180 approved
Chapt 182 Use of Experts – Public comments Elizabeth Naugle. Asked Board to consider changing statutes to include Experts from outside of Texas. She will bring the issue to Legislature. Approved
Chapt 187 approved
Chapt 190 disciplinary guidelines Board looks at AMA guidelines, suggested that they should publish this , but AMA asked them not to, as it can be used as a sword by patients.
Ms. Robinson suggested they approved everything but point # 8 and make adjustments to that point with input from the stakeholders. Approved 190.1 and 190.14.
Motion on 190.8 to direct staff to make amendments
Chapt 192
Changes delete 191.2 which talks about standards for anesthesia services, level one. Regarding certain drugs being available in every O.R. in pre-measured doses. The problem and feedback is they do not come in premeasured form. Dr. Kalafut suggests change “pre-measured doses” to “have on hand” . Specific stakeholder group came up with the initial set of guidelines, but now that it has been implemented, changes need to be made. Will be removing pre-measured. Approved
Shirley Pigott, MD asked to address the Board. Elizabeth Naugle asked to address the Board.
Sorry for Not Writing
Ok. I have not written in a while. Sorry about that. I am going to try to get back into the habit of writing. My goal is no less than two posts per week. I should have information on the last Board meeting up soon.
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