President Resigns; New President Named

This morning the President of the Texas Medical Board, Roberta Kalafut, D.O. of Abilene resigned both as President and member of the Board. Dr. Kalafut served as a member of the Board for many years spending a significant amount of time and energy devoted the Board. She is resigning to spend more time with her family. Dr. Kalafut will remain involved with the Board as member of District Review Committee.

Irvin Zeitler, D.O., of San Angelo has been named the new President of the Board. Dr. Zeitler is a board certified family practice physician at Shannon Medical Center, where he serves as Vice President of Medical Affairs. He graduated from the University of Texas at Austin with a B.S. in Pharmacy and earned his medical degree from the University of North Texas Health Science Center at Fort Worth. He completed his family practice residency at Texas Tech. He previously practiced in Stamford, Texas. Dr. Zeitler has served on the District Review Committee since 1988, having been appointed by three different governors. He was appointed to the Texas Medical Board last year.

Dr. Zeitler is an intelligent and thoughtful individual. I have always found him to be open, straight-forward and well prepared. I wish him the best of luck in this new position with the Board.

New Appointments to the Board

Gov. Rick Perry has appointed David Baucom of Sulphur Springs to the Texas Medical Board for a term to expire April 13, 2009. Mr. Baucom is president of Baucom Insurance Services Inc. He is a member of the Independent Insurance Agents of Texas, a founding director of First American Mortgage Company and a past director of First American Bank. He is also a past member of the Sulphur Springs City Council, past mayor of Sulphur Springs and president of the Sulphur River Basin Authority. Baucom served in the U.S. Army National Guard. He received a bachelor’s degree from Baylor University. He replaces Melinda Fredricks of Conroe.

Mr. Baucom previous served a number of years on the District Review Committee of the Board. The District Review Committee members are used to support the Board members. This is especially true in the disciplinary process as these members of used at ISCs on a regular basis.
Mr. Baucom is an extremely kind, knowledgeable, and well-prepared individual. I have always found him thoughtful and inquisitive. I do not always agree with Mr. Baucom on his decisions, but I always have respect for them as he never comes to a decision lightly.

Mr. Perry also appointed nine members to Texas Medical Board District Review Committees.

Sharon J. Barnes of Port Lavaca is the human resource leader at the Dow Chemical Company. She is national secretary of the National Organization of Black Chemists. She is also a past mayor-pro tempore and city council member of the city of Lake Jackson. Barnes received a bachelor’s degree from Baylor University and a master’s degree from the University of Phoenix. She is reappointed for a term to expire Jan. 15, 2012. This is her second appointment as a District Review Committee Member.

Wendy Prater Dear of Tomball is an attorney in private practice. She is a member of the State Bar of Texas and Houston Bar Association. She is also a member of the Houston Livestock Show and Rodeo, Board of Vocational Nurse Examiners and Northwest Family YMCA Board of Directors. Dear received a bachelor’s degree and a law degree from Baylor University. She is reappointed for a term to expire Jan. 15, 2014. This is her first full appointment as a District Review Committee Member, she filled an expired term.

Charles Stiernberg of Bellaire is a physician in private practice. He is a fellow in the American Academy of Otolaryngology - Head and Neck Surgery, and a member of the Texas Medical Association and Harris County Medical Society. Stiernberg received a bachelor’s degree from Louisiana State University, a master’s degree from the University of Houston and a medical degree from the University of Texas Medical Branch at Galveston. He is reappointed for a term to expire Jan. 15, 2014.

Frank Wellborne of Houston is a clinical rheumatologist in private practice. He is a member of the American and Texas Medical associations and an American College of Rheumatology fellow. Wellborne received a bachelor’s degree from the University of Missouri and a medical degree in osteopathic medicine from Des Moines University. Wellborne is reappointed for a term to expire Jan. 15, 2012. This is his third appointment as a District Review Committee Member.

Kathy C. Flanagan of Houston is a self-employed psychiatrist. She is a member of the Houston Medical Forum, American Psychiatric Association and National Medical Association. She is also a volunteer at the DePelchin Children’s Center. Flanagan received a bachelor’s degree from the University of Texas at Austin and a medical degree from the University of Texas Medical School. She replaces Kevin Smith of Houston for a term to expire Jan. 15, 2010.

Harry K. Wallfisch of Galveston is a professor of anesthesiology at the University of Texas Medical Branch. He is a member of the American Society of Anesthesiologists, Society of Critical Care Medicine and an American Board of Anesthesiology diplomat. Wallfisch received a bachelor’s degree from Tulane University and a medical degree from Louisiana State University. He replaces Richard Strax of Houston for a term to expire Jan. 15, 2012.

Janet Tornelli-Mitchell of Dallas is a staff physician at Cooper Clinic. She is a member of the Dallas County Medical Society and Texas Medical Association. Tornelli-Mitchell received a bachelor’s degree from the University of Texas at Austin and a medical degree from the University of Texas Medical Branch at Galveston. She is reappointed for a term to expire Jan. 15, 2014. This is her second appointment as a District Review Committee Member. She is also a former Board member.

Penny Angelo of Midland is a past member of the Texas Board of Examiners of Psychologists. She is chair of Neighbors Against Burglary and Drugs. Angelo received a bachelor’s degree from the University of Texas at Austin. She is reappointed for a term to expire Jan. 15, 2014. This is her second appointment as a District Review Committee Member. She is also a former Board member.

David W. Miller of Abilene is president and CEO of Hendrick Home for Children. He is past president of the Southwestern Association of Executives of Homes for Children. Miller received a bachelor’s degree from Hardin-Simmons University, and a master’s degree and doctorate degree from Southwestern Baptist Theological Seminary. He is reappointed for a term to expire Jan. 15, 2012. This is his second appointment as a District Review Committee Member.

STANDARD OF CARE CASES

I have found a large increase in the number of complaints regarding the standard of care. It appears to me that the vast majority of the complaints opened do lead to full investigations. According to staff that I have discussed this with, the Board wants the Board consultants to review each complaint. I understand the rationale, but I believe it can be done better. The Board does employ nurse investigators and should, in my opinion, give them great discretion to evaluate some of these initial complaints. Some of these initial complaints should be screened in cases where the standard of care is met, based on both the medical records and supporting information, to ensure it does not rise to the level of a full investigation. This would be a win for both the Board and the doctor. The doctor would not have to bare the stress and expense of an investigation. The Board would not waste its resources and time on an investigation its own staff knows is within the standard of care. There are many members of the staff that are well qualified, experienced and able to do this. Moreover, all closures are reviewed by the Board members, so this will balance this process. This would be a win-win.

RESPONDING TO THE NOTICE OF COMPLAINT

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

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

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

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

Experts Should Be In the Sun

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

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

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

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

I believe this is the intent of the legislature is the provide the actual report. This is something the Board should return to doing. It is an issue of fairness and helps the Board with its perception problem.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Board approved the June meeting minutes.

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

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

DO YOU KNOW THE RULES?

When I see investigations for doctors, the first thing I want to see is the medical record. Even if I don’t understand the medicine at first, I know if I am going to have a problem or not based on the records themselves.

In order to help me and help yourself, the physician must make good use of the medical record he or she has. I would urge you to know Board Rule 165.1 on the requirements for what is required for a medical record in Texas and follow the rules. Review the rules at the Board’s web site. My guess is that you are in violations of the rules as they are written.

New Chair and New Appointment to the Acupuncture Board

Gov. Rick Perry has named Allen Cline of Austin chair of the Texas Board of Acupuncture Examiners. He also re-appointed Terry Rascoe of Temple and appointed Rachelle Webb of Austin to the board, which regulates the practice of acupuncture in the state of Texas. Their terms expire Jan. 31, 2013.

Mr. Cline is president of Turtle Dragon Health Services. He is a past member of the Texas and American associations of Acupuncture and Oriental Medicine. He received a master’s degree from the New England School of Acupuncture. Cline also attended Beijing Medical University and the National Academy of Traditional Chinese Medicine of China in Beijing. He replaces Terry Rascoe as chair.

Dr. Rascoe is a physician and medical director at the Northside Family Practice Clinic which is a Scott & White Regional Clinic. He is a member of the American and Texas Medical associations, American and Texas academies of Family Physicians, and the Academy of Medical Acupuncture. Rascoe received a bachelor’s degree from Baylor University and a medical degree from Texas A&M University. He is being reappointed.

Ms. Webb is a licensed acupuncturist in private practice. She is a volunteer with the Remedy Community Clinic and Wright House Wellness Center, a fundraiser for the Leukemia & Lymphoma Society and Paramount Theater Alliance. Webb attended Austin Community College and the Academy of Oriental Medicine at Austin. She replaces Hoang Ho of San Antonio.

MITIGATING FACTORS

According to the Board’s own rules, 190.14(6), the Board is to consider mitigating factors if the Board finds a physician violated the Act.

Mitigating factors are critical if you are involved in an investigation to express this information to the Board. Please do not think that engaging in mitigating factors is equal to an admission that you did something wrong. It is not. But it is all right to use the investigation as a painful learning experience to evaluate the facts of the investigation and see what, if anything, could have been done to have a better outcome. Sometimes, you see with hindsight that something else could have been done; sometimes, maybe nothing else could have been done. Maybe it is poor records, or maybe it is a system’s error. Examining all factors, especially those factors beyond just the underlying allegations can be very helpful to you during the Board’s investigation and can help even more should the investigation result in a disciplinary hearing.

180 DAYS, WHAT DOES IT MEAN?

I frequently get asked how long an investigation takes. I usually supply a lawyer answer. “It depends!”

Now the rules says an investigation should take 180 days. 22 Texas Administrative Code Section 179.6(a). However, it has been more frequent that it takes longer. So if they violate this rule, what happens? Nothing. There is no enforcement to this rule. The rule says the Board should send a letter explaining why it has taken longer than 180 days. 22 Texas Administrative Code Section 179.6(c). However, to date not one of my clients have ever received such a letter. In some cases, I have even asked for this letter from Board staff. I still have not received such a letter.

Again, there is no enforcement mechanism requirement to get this letter, other than going to District Court and filing a writ of mandamus motion. (This is basically asking the Court to direct a government agency to complete a mandatory or ministerial duty). Frankly, this would be a waste of time and resources. So why is this important? Honestly, it is not. This is one of those rule that was made only to ease complaints; but it is meaningless because the Board can go beyond the 180 days and it does not matter.

I will say the Board tries to make the official deadline. But when they don’t, they don’t. Someone under investigation just needs to be patient because you may not know when the investigation will be concluded

SIGNING AN AGREED ORDER DOES NOT MEAN ITS OVER

Once physician signs an Agreed Order to settle an investigation that does not mean the investigation is actually settled. The full Board must vote and approve the order by a majority vote. Usually every meeting one or more orders are rejected or modified by the Board members. Those Agreed Orders are not passed. The Board members usually make amendments to the Agreed Order, which is essentially a counter offer. The problems with this are many. The top three issues I find are:

1) It creates ill will. The doctor and the Board have to go through a hearing and often negotiate this with the Board staff and Board members who the met with the Informal Settlement Conference. The rejection often creates anger from the doctor.
2) Recently, the Board has not done a good job following the law. According to Texas Occupations Code Section164.0031, the Board is to expressly state why they rejected the Agreed Order. When notifying the physician of this action, TMB staff frequently does not explain what happened and why. Sometimes, they do not even know the rationale to change the Agreed Order. This leaves the doctor in the dark. Sometimes, the Board members make assumptions on the basis of the action that may be wrong.
3) The largest frustration is it appears when the Board takes this step and that it appears, from the outside, to be an arbitrary decision. This is especially the case when a Board member who has not seen any of the evidence and did not participate in the decision makes the argument to change the Order.

It would be better, in my opinion, to have a mechanism whereby if Board members have an issue with an Agreed Order it be announced prior to the meeting so that the assigned Board staff attorney and the physician have the opportunity to discuss the proposed Agreed Order before the full Board and answer whatever questions or concerns the Board member may have. Also it will give the Board members who served on the Informal Settlement Conference a chance to refresh their memories and be able to explain why they decided the way they did. This will make the process more open, the parties will have less anger and may lead to less litigation.

8th GRADE MATH

More and more I am seeing both TMB experts and Board members and staff arguing that a doctor’s medical records are deficit because the records fail to provide expressed justification or rationale for medical treatments, labs, consults and testing.

TMB is demanding that doctors justify what you are doing. Your medicine may be right, but if you don’t show the “why” some Board consultants, members and staff will find your records are deficient. I liken this to Eight Grade math. Take 144 ÷ 12 , you know it’s 12. Well in Eight Grade math, the teacher would mark you wrong because you didn’t show your work. If you showed the 144 - 144 = 0 and then you placed the 12 on top that would be right. Same outcome, as before, but this time you demostrated to the teacher how you got there.

Think about this with your medical records.

Board to Consider Standardizing Impairment Orders

At the TMB Board meeting on August 30th, there was discussion of standardizing the length, the terms and conditions of impairment orders. It may be with such cases in the future, the individual would not even go to a hearing unless the circumstance of that person’s impairment history was out of the norm. According to the discussion, the “standard” case seems to be someone who abused alcohol or drugs in medical school or residency. They recognized they had a problem and sought treatment. Under those type cases the TMB would formulate a standard agreement of maybe seven years to monitor those individuals. Typical monitoring would be with drug screening, mandated attendance at a 12 step program, required participation in a county medical society impairment committee and approved mental health care. TMB staff will have a proposal for the Board members to consider at the October meeting. Those cases that are “egregious” would be sent to a disciplinary hearing.

My Take: I think this is a reasonable idea that could be well used and certainly could speed up the process of having someone monitored by the Board. The three concerns that come to my mind are:

(1) What does “egregious” mean? Is it someone who harmed a patient while impaired, or is it a doctor who does not meet the “standard” view of how impairment cases make it to the Board? It is not clear to me at this time.

(2) What if someone wants a hearing? How is that process going to be resolved? Obviously, the TMB cannot waive someone’s due process rights, so how will that play out? It is a critical question that must be resolved and a plan is in place.

(3) The individuals who are offered such Orders need to be fully aware of the consequences of such Orders. There are a lot of pitfalls that people find once they are bound by an Order that they do not know about and, frankly, the TMB does not do an adequate job educating them on those issues until after the Order is in affect. In the staff’s defense, it is not their job to educate the licensee; it’s the licensee’s responsibility.

Expanding the Board?

At the last Board meeting, the interim Executive Director floating the idea of expanding the Disciplinary Review Committee (DRC). The DRC is currently made up of twenty-eight (28) physicians and public members who were appointed by the Governor and approved by the Senate to serve as support members for the full Board. There currently design to appear at Informal Settlement Conferences, along with Board members to hear disciplinary cases. They serve six year terms. The DRC is separated into four regional areas to create a wide geographic distribution of membership. A list of the current members can be found on the Board’s website.

Due in part to the increase in the number of disciplinary hearings (see prior posts) the even the DRC membership is becoming burned-out on the number of hearings. The Executive Director educated the Board that in some states, such as New York, have over a hundred members of their disciplinary Panel to choose from, thus easing the burden.

Any change in the DRC must be legislative as the membership is statutory. The TMB may ask the legislature and the governor to expand the DRC at the next session.

My Take: On its face, this makes sense due to the large increase in hearings and, frankly, I do not see that number falling anytime in the near future. However, to make this work well, a few things need to be done. (1) It would be a good idea to have a boarder representative of specialties represented on DRC. The TMB staff should attempt to have cases before the specialist in the same area of their expertise to have specialist talking to another specialist. I believe this would generate better discussion and fairer outcome. (2) DRC members need to have better more formalize training. Currently, the training is limited. This additional training would be critical given the fact that people will appear at less hearings, thus the expertise of the DRC members is lowered and reliance of staff is greater. It is important the DRC members understand how decisions they make have real impact.

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.

2008 Investigation Stats for the TMB

The end of the fiscal year for the State of Texas was August 31st. The Texas Medical Board had a record year in the number of complaints, the number of investigations, the number of hearings against doctors and the number of physicians in the TMB’s compliance program.

The TMB exceed 6300 initial complaint letters to physicians this year. Of that, the TMB opened more than 3000 active investigations against Texas physicians. This represents more than 150 more investigations than in Fiscal Year 2007. What is interesting is that “non-jurisdictional” complaints are down to the levels seen in Fiscal Year 2006. Non-jurisdictional mean that TMN staff evaluated the complaint and felt it does have legal authority of the nature of the complaint. The majority of the cases opened to full investigations are allegations regarding a violation of the standard of care.

In the litigation area the TMB has 651 active cases. At the end of 2007, there were 452. The Board has conducted approximately 550 ISCs for fiscal year, which is a record. As a result of this increase, it is taking longer to resolve cases in the litigation area. Moreover, the ability to schedule hearings is getting bogged down. For example, the TMB is already setting Informal Settlement Conferences for February 2009. As these numbers continue, I do not see a resolution to problem in the near future.

For SOAH, there are currently 56 cases pending and staff was planning to file between fifteen and twenty more by August 31st. It is not clear to me at this time whether that occurred.

There are approximately 730 licenses of the TMB within the Board’s compliance (probation) system.

I'll provide my opinion on these stats in a few days.

Waivers of Delegation of Prescriptive Authority are Hard to Come By

Under TMB rules, a physician can delegate prescriptive authority under a set of somewhat complex rules (See Board Rule 193.6). The TMB does have the authority to waive these rules in certain limited situations. Specifically, the rule states: “The TMB may waive or modify any of the site or supervision requirements for a physician to delegate the carrying out or signing of prescription drug orders to an advanced practice nurse of physician assistant at facilities serving medically underserved populations, at physician primary and alternate practice sites, and at facility-based practice sites.” 22 Texas Administrative Code §193.6(i)(1). To get this waiver, there is an application and review process and there is also an appearance before the Standing Orders Committee of the TMB.

This Committee met on August 28th. Two requests were submitted and both were denied. Denials of requests have been standard from the meetings we have observed over the last several months. The Committee did provide some insight into why these denials have been made. Some members of the Committee expressed the thought that waivers are not just there for the asking. The TMB wants to make sure those asking for waivers fully understand the reason for the standing orders is protecting the public by providing physician oversight. Waivers will not be granted just because someone feels they do not have the time to drive down the road.

In response to these concerns at the last meeting, the Committee directed staff to create a new application form that does go into far more detail that explains the rationale for waivers from the TMB rules concerning standing delegation orders. The form expresses that waivers are only granted if good reason exists. The chief question for the TMB is: would the patient population be better served from the request? If the answer is no, then it will be denied. The Committee directed staff to start using this new form immediately.

My Take: Anything that the TMB and TMB staff can to make these rules more direct and clear would benefit everyone. This rule is complex and difficult to understand unless you deal in this area on a regular basis. As mid-level providers are becoming more the norm and physicians are delegating more and more authority to them, it is critical that both physicians and mid-levels review the delegation rules and fully understand what can and cannot be done. From the many clinics and even hospitals that I have visited over the year, many do not meet the requirements set forth by the TMB. The health care community and the TMB should work together to revisit these rules to make them more user-friendly so that everyone understands these rules.

Telemedicine Committee – August 28th

Telemedicine Committee – August 28th

Tonya Palone, Policy Analyst, from HHSC spoke on proposed changes to the HHSC rules regarding telemedicine in response to legislature. The two main issues for HHSC are:

1) Terminology is changing to align with Medicare, i.e., the term hub changes to distant and the term remote changes to patient site.
2) Expanding to allow for providers other than physicians, such as mental health, medication management, psycho therapy.

As a result of these HHSC changes, the Board will have to adopt new rules, specifically regarding issues like patient site versus remote site. Additionally, the rules defining supervisory requirements are currently it is stated in a broad sense. Due to the HHSC rules, the Board may need to provide more detail.

HHSC rules will be published for public comment on September 11th. (See: http://www.sos.state.tx.us/texreg). The public is encouraged to review the proposed rules and can provide public feedback on the rules. The goal of HHSC is to finalized the rules and enact them by April 2009.

Board staff recommends that Board wait until HHSC adopt their rules, however do not want to wait until April to make the changes. The Board staff may place this issue on the October Board meeting agenda. Board staff suggests that the Board review the proposed HHSC rules and make any changes to the Board rules at the February 2009 meeting.

My Comments: To be able to involve one’s self in telemedicine, one must be a licensed Texas physician. A few years ago, the Board did start to issue Telemedicine licenses. These are given to out-of-state doctors who practice via technology, but do not and cannot otherwise practice in Texas. The vast majority of these individuals are radiologist and pathologist at this time. As technology grows in this area, who knows how these field with grow. There is a growing need for PCPs in Texas. This is especially true to small towns across Texas who are increasingly having trouble finding and keeping doctors. Telemedicine may a solution to this problem.
If you are interested in the scope and limits of telemedicine, information can be found at Board rule 174. If you are interested in the licensing requirements for telemedicine, they can be found at Board rule 172.12. The rules can be found at the Board’s website. (www.tmb.state.tx.us).

TMB Executive Committee Meeting

The majority of the Executive Committee of the Board was held in Executive Session, meaning not open the public. According to the published agenda the Board was to speak about on-going litigation and employment matters. Surely the role of Executive Director was discussed Mari Robinson, the current Director of Enforcement and Interim Executive Director, left the meeting early.

A little more than an hour after Ms. Robinson left, the Committee returned to open (public) session. I have been predicting (guessing) for a while that Ms. Robinson would be named the Executive Director. The Committee continued to push that theory for me as they are planning to post a job description for Medical Director. Under the statute, Texas Occupations Code Section 152.054(b), essentially provides that if the Executive Director is not a licensed physician, the Board "shall" appoint a Medical Director. This individual's role, according to the law, "[P]rimarily responsible for implementing and maintaining policies, systems, and measures regarding clinical and professional issues and determinations."

What is also interesting is the Board is asking the Legislature for guidance on the position. They want this position reporting directly to the Board rather than to the Executive Director. As the Board understands it, the Medical Director currently would have to report to the Executive Director.

This will be an interesting balance of having an Executive Director and a Medical Director, with both reporting to the Board. It will have to be a close team effort for it to work effectively.

Death Rates at Hospitals

An interesting study was published today regarding mortality rates at hospitals. This is interesting information, but it can certainly be misused and lacks the contextual realities of patients at hospitals.

CNN did a nice job with the story. The link is below.

http://www.cnn.com/2008/HEALTH/08/20/hospital.deaths/index.html

First Round of Fast Track Had “Issues”

First Round of Fast Track Had “Issues”

At the meeting in June, the first batch of so-called Fast Track Agreed Orders were considered by the Board. There were some problems. The doctors who chose to have their written material only considered actually did not get it considered. It got sent to a Board committee that was unable to give this material the appropriate review. As a result, those Orders will be resubmitted for appropriate consideration and any appellate timetable is on hold until the doctors hear further from the TMB.

When one submits writing material for consideration, you are waiving your rights for a hearing. What is critical when you waive your right to an ISC, it appears based on the rules, one also waiving the right to an appeal at the State Office of Administrative Hearing. Therefore, if the Board still wants to issue a punishment and the doctor does not wish to accept it, the next step in the appeal process for this is district court. If you elect to do the fast track and have your written material only considered, you are waiving your right to ISC and SOAH. That sure seems to be what rule 165.005 is saying. This is not explained in the material that I have seen thus far from the Board.

If you think you have a good defense, you should opt out of fast track and choose the ISC option. The middle option of staying in fast track and having the Board review written materials is not a good option at this stage until the Board works out this serious flaw in the system.

TMB Overrules Acupuncture Rule Changes

Acupuncture Rule 183: Notes from the June 2008 Texas Medical Board Meeting

183.4- Was modified to allows for 5 exam attempts and the JP exam was modified to match that of the Medical Board.

183.10 (a) (2)- Was modified by the Standing Orders committee to include height, weight, and respiratory rate in the definition of vital signs.

183.19 (d)- This rule was modified to clarify when an acupuncturist could use the title of “Dr.”, “OMD” or “DOM”. The Standing Orders committee moved to remove all changes made in this section.

My Thoughts: Most acupuncturists don’t know this, but all rules passed by its Board are subject to the approval of the Texas Medical Board. Thus, the Texas Medical Board has t he power to veto rules changes. They did in this case.

Eight New or Returning DRC Members Appointed by Perry

Gov. Rick Perry has appointed eight members to the Texas Medical Board district review committees. Committee members evaluate medical practice and professional competency and make recommendations on investigations conducted by the board.

District Two Review Committee

David Baucom of Sulphur Springs is president of Baucom Insurance Services, Inc. He is a member of the Independent Insurance Agents of Texas and an advisory director to Guaranty Bond Bank. Baucom received a bachelor’s degree from Baylor University. He is reappointed for a term to expire Jan. 15, 2012.

Carlos Gallardo of Frisco is manager of recruitment and selection at Texas Woman’s University. He is a member of the Frisco YMCA board of directors and the City of Frisco Urban Forestry Board. He is also a member of The Colony Chamber of Commerce, Rotary International and the Knights of Columbus. Gallardo served in the U.S. Air Force. He attended Webster University and received a bachelor’s degree from Texas Tech University. He is reappointed for a term to expire Jan. 15, 2014.

Hari Reddy of Fairview is a physician with Allergy and Asthma Associates of Allen and clinical assistant professor at the University of North Texas Health Science Center. He is a member of the American College of Allergy, Asthma and Immunology; Joint Council of Allergy, Asthma and Immunology; and the American Academy of Allergy, Asthma and Immunology. He is also district five secretary for the Texas Osteopathic Medical Association and a member of the Texas State Board of Medical Examiners. Reddy received a bachelor’s degree from the University of Miami and a medical degree from the University of North Texas Health Science Center. He replaces Rodney Wiseman of Tyler for a term to expire Jan.15, 2012.

Melissa Tonn of Dallas is a physician and president of OccMD Group. She is a member of the American Academy of Disability Evaluating Physicians, American and Texas colleges of Occupational and Environmental Medicine, Texas and American Medical Associations, and Dallas County Medical Society. She is also a volunteer with Texoma Youth Camp and Armstrong Elementary. Tonn received a bachelor’s degree and a master’s of business administration from Rice University, a medical degree from the University of Texas Health Science Center in San Antonio and a master’s degree in public health from the University of Texas Health Science Center in Houston. She replaces Allan Shulkin of Dallas for a term to expire Jan. 15, 2012.

District Four Review Committee

Noe Fernandez of McAllen is president of Dos Rios Textiles Corp. He is a past member of the University of Texas Pan American and Texas State Technical College boards of regents, past vice chairman of the Texas Water Development Board and Texas Water Resources Finance Authority. Fernandez received a bachelor’s degree from the University of Texas Pan American. He is reappointed for a term to expire Jan. 15, 2014.

Chevy Lee of McAllen is a physician in the solo practice of ophthalmology. He is a member of the Texas Medical Association, a past president of the Hidalgo-Starr County Medical Society, past president of the Texas Ophthalmological Association and an American Academy of Ophthalmology fellow. Lee received a bachelor's degree from the University of Texas at Austin and a medical degree from the University of Texas Medical Branch at Galveston. He is reappointed for a term to expire Jan 15, 2014.

Richard Newman of San Antonio is a surgical oncologist with San Antonio Head and Neck Surgical Associates. He is a member of the American Society of Head and Neck Surgery, Society of Air Force Clinical Surgeons, Texas Medical Association, Bexar County Medical Society, Texas Surgical Society and American Academy of Otolaryngology, and is an American College of Surgeons fellow. He is also a founding member of M.D. Anderson Associates, a past board member of the Holmgren Children’s Shelter, a member and volunteer surgeon for South Texas Physicians Outreach and a member of Antonio Children’s Service Bureau board of directors. Newman received a bachelor’s degree from Texas A&M University and a medical degree from the University of Texas Health Science Center. He replaces Peter Scholl of Austin for a term to expire Jan. 15, 2012.

Russell Parker of Austin is a land developer in the Austin and San Antonio areas. He is a member and chairman of the Center for Child Protection building committee. Parker replaces Lorna Kithil of Marble Falls for a term to expire Jan. 15, 2010.

Lifetime Learning

Lifetime Learning: Notes from the June 2008 Texas Medical Board Meeting

At the Board meeting, there was an expression to further the educative aspect of the Board. Thus, the Board is planning at least ten more Town Hall meetings have been planned accompanied with legislator visits and Licensure Orientations. To help with these projects a new staff member has been hired to focus entirely on community outreach meetings. The Texas Medical Board is reaching out to reopen the lines of communication with the public and the licensees. Many Board members discussed favorably the idea of the Board as a source of lifetime learning.

My Thoughts: The town meetings are nice, but real learning requires holding CME course, using the newsletter and web site to better educate the doctors on rules that affect their daily practice. That is real learning. This is not being adequately done by the Board, in my opinion. Several Board members have been talked about this for years. I hope there is a movement towards this. This would be a win-win for both sides.

Finance Committee: Notes from the June 2008 Texas Medical Board Meeting

Finance Committee: Notes from the June 2008 Texas Medical Board Meeting

The Finance committee introduced two new accountants, but the budget analyst position remains vacant. The mileage reimbursement rate was increased and may be increased again to compensate travel expenses for Board members. The Medical Board has spent 72% of its $6.4 million budget and has revenue of $2 million of which 69% has been spent.

Pill Mills and Rehab Committees (Not Related!)

Miscellaneous: Notes from the June 2008 Texas Medical Board Meeting

“Pill Mills” are an ongoing problem in the southern region of Texas. The Medical Board has been working with the DPS to crack down on these “Pill Mills” which are prescribing 3-5s because these are not reported. There is a plan on the table to make all 3-5s reported to the DPS but it would be administratively burdensome on the pharmacists.

My Thoughts: Only a fool would be involved in a pill mill. These are the bad doctors the Board is rightly focusing on. However, the notion of having to report all controlled substances is likely overkill for both pharmacists and law enforcement.

The Board is continuing to work with the TMA on physician rehabilitation issues.

The Board directed staff to look at language and wording for a proposal requiring a statutory change allowing doctors to prescribe medication to partners of patients with STDs without first seeing them. It was mentioned that other states have rules accommodating these patients.

My Thought: John Jackson, M.D. is the TMA Chair for the PHRC Committee. He has worked tirelessly for a rehabilitation committee that will allow doctors to report their addition problems without fear of the Board taking action. This would be a positive step in the right direction as physician with such issues have been driven under ground by the current actions of the TMB, in my opinion. Most states have a program like this. In fact, nurses in Texas have a program like this that is very successful. It is time for this. It is good to see the Board working with the recovery community in this way.

Texas Medical Board Still Looking for an Executive Director

New Executive Director - Notes from the June 2008 Texas Medical Board Meeting

The search for a new Executive Director is in full swing. Board members were assigned various other independent Medical Boards in other states to determine what kind of Executive Director would work best. Of all the Medical Boards in the country only 24 are Independent and of those only two Executive Directors are MDs. The rest of the Executive Directors are individuals with experience in administration. Soon after the Board meeting four candidates will be interviewed. These candidates include a pair of MD/JDs, an MD, and a JD. The JD candidate is the current Director of Enforcement Mari Robinson. She is also the current interim Executive Director.

My Thoughts: My money is that Mari Robinson will be named as the new Executive Director. This goes against history as the Board has historically been run by a physician. This will also mean, by law, the Board will need to hire a medical director to assist the Executive Director. However, this does not have to be a full time job. Time will tell if I am right or if I am wrong.

- Jon Porter

Dr. Anderson Resigns from the TMB

Lawrence Anderson, M.D., a dermatologist from Tyler, Texas resigned as a member of the Texas Medical Board. Dr. Anderson was an active member of the Board and served on various committees of the Board, including, but not limited to the Executive Committee and the Ad-Hoc Search Committee for a new Executive Director. I am grateful for his service on the Board. There was no public statement to given for his resignation.

By law, there are 19 members of the Board, nine must be allopathic physicians (MDs), three must be osteopathic physicians (DOs) and the remaining seven are public members.

The Governor must appoint a new MD member, but there is no timeline to do so. If you are interested in becoming a member of the Board or wish to nominate someone, you can do so by completing an application from the governor's web site at www.governor.state.tx.us/divisions/appointments

Web Site Re-Launched

Our law firm's website re-launched today. I think it looks great. I encourage you to check out the site. It has lots of useful information.

Check us out at http://www.healthlicensedefense.com/

Computers and Keeping Staff Still a Weakness for the Board

Internal Audit and Staffing - Notes from the June 2008 Texas Medical Board Meeting

An internal audit was conducted concerning risk and probability for the Texas Medical Board and the two highest areas of risk were found to be the IT infrastructure and the salary structure for staff. There are many very old programs making it difficult to repair them if something should happen. The staff compensation levels have proved to be too low to even compete with other government agencies.

My Thoughts: These are two long standing issues for the Board and it is unlikely these matters will be solved anytime soon.

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.

TMB Investigations Overwhelmed

Investigations Overwhelmed – Notes from the June 2008 Texas Medical Board Meeting

According to the staff of the Texas Medical Board (“the Board” or “ TMB”), there was an increase of 1,600 complaints in 2007 and another 1,600 increase in complaints this year fiscal year (September 1, 2007 until August 31, 2008). The TMB’s Investigations department is overwhelmed and this is manifesting itself in the Disciplinary Process Review Committee (“DPRC”) and in the Informal Settlement Conference (“ISC”) system. Each member of the DPRC was assigned over 100 cases that Board staff recommended be dismissed to review and over 30 appeals. Members of the DPRC expressed concerns that they were unable to fairly evaluate all of these cases. A possible short term solution for this problem was to assign two more Board members to the DPRC for the next meeting in August.

However, to address the long term complications from this case load an Ad Hoc committee was formed to study this issue. One of the ideas for this new committee to consider is that of assigning 10-20 dismissal cases to each Board member whenever they came in for an ISC day. Dr. Price was put in charge of the committee and Mrs. Southard, Dr. McNeese, Dr. Arambula, and Dr. Kalafut joined in. The ISC system is also feeling the affects of the increase in complaints. There will be around 570 ISCs scheduled for this fiscal year, which is the most in a single year yet. Any more ISCs and they would have to require 10 ISC days per Board member adding up to 22 working days a year for each member of the Board. Cases coming in at the end of June are being scheduled for November. A short term solution for this problem is to start keeping an attendance list of all DRC members. Those found not participating more than once a year are going to be talked with and may even be asked to resign. The new Ad Hoc committee will also look into options for allowing the ISC system to adjust to the mounting case load.

My Thoughts: Part of the problem is on the front in. The Board staff is opening the vast majority of cases that are sent into the agency. Moreover, the TMB staff should given more time and analysis to the initial complaint process. Should they weed more on the front end, the numbers would not be as great.

TOMA Issues Suggestions For Change

TOMA Resolution
Number 2008-05

SUBJECT: Position Statement of the Texas Osteopathic Medical Association
Regarding the Texas Medical Board

SUBMITTED BY: TOMA Board of Trustees

REFERRED TO: Professional Affairs

WHEREAS, Osteopathic physicians in the State of Texas strongly support the Texas Medical Board
(TMB), and believe it is important for Texas to have a strong, effective medical board acting not
only as an advocate for the citizens of Texas but also as an advocate for the physicians of Texas ; and,

WHEREAS, the Texas State Senate passed in the 2003 Texas Legislative session Senate Bill 104, (SB104)
which outlines the statutory responsibility for the TMB as it specifically relates to disciplinary
matters, which are as listed: 1. Quality of care issues, 2. Sexual misconduct, and 3. Impairment issues; and,

WHEREAS, the TMB is critical to the ongoing maintenance of the tort reforms passed in the 2003 Legislative
session; and,

WHEREAS, the Texas Osteopathic Medical Association ( TOMA ) and its membership encourages the
TMB to maintain a level playing field of fairness and to focus on the issues outlined in SB104
with openness and transparency utilized in the disciplinary process; and

WHEREAS, the Texas Osteopathic Medical Association ( TOMA ) realizes that the TMB has been under
increasing scrutiny and that TOMA appreciates the service that the members of this board
voluntarily give to the citizens of our state; and,

WHEREAS, any functional organization will always have an opportunity for improvement as a normal
process and due course; and,

WHEREAS, Texas Osteopathic physicians want to support the TMB but may find it hard to do when the
perception is that there is unfairness or uneven-ness in the system; and,

WHEREAS, in the light of the many issues and questions Texas osteopathic physicians have with the
disciplinary process, and that physicians desire a fair and balanced focus on openness and
transparency in that process; now therefore be it,

RESOLVED, that the Texas Osteopathic Medical Association supports the Texas Medical Board; and be it
further

RESOLVED, that TOMA supports the statutory law amendments that would be effected by the Texas
Legislature as specifically listed in the TOMA White Paper Attachment.





POSITION STATEMENT OF THE TEXAS OSTEOPATHIC MEDICAL ASSOCIATION TO THE TEXAS MEDICAL BOARD

In response to a growing concern and outcry from osteopathic physicians across our state, Texas Osteopathic Medical Association (TOMA) developed a position statement for the association concerning the activities of the Texas Medical Board (TMB).

There are several points to consider. These include maintaining the tort reform measures passed in 2003 and an assortment of issues concerning the transparency of TMB operations and proceedings. These include anonymous complaints, disciplinary procedures, State Office of Administrative Hearings findings, deferred adjudication, case review and the listing of physicians’ names in news releases for minor infractions.

To encourage the continuance of a strong board which operates in a balanced manner, the Texas Osteopathic Medical Association offers the following recommendations for TMB reform:

1. The Texas Medical Board should look back to Senate Bill 104 also passed in the 2003 legislative session and re-focus its investigative and disciplinary efforts on those allegation priorities highlighted in that legislation: sexual misconduct, impaired physicians, and quality of care. The resources of the Board are not unlimited and therefore should be focused on those areas where the most can be done to protect public safety.
2. TOMA supports the Board’s efforts to continue to improve the efficiency and timeliness of the licensing process. Everyone in Texas benefits from a faster process, particularly since our state is now such an attractive place in which to practice medicine.
3. So many complaints about the Board and its processes, particularly in licensing, can be summarized as a single deficit: customer service. We urge the board and leadership to thoroughly revamp its communication, responsiveness, and timeliness with which the Board relates to its physician stakeholders. The board should be as effective in physician service and licensing as it is in pursuing disciplinary action.
4. TOMA suggests a fair and balanced focus on openness and transparency in its processes of dealing with physicians. Discipline where appropriate; warning where it can resolve the issue; educate where necessary; support where needed, and facilitate a win-win culture for both the public and the physicians.
5. TOMA asks the Board to recognize that disciplinary action against any license-holder threatens not only his or her livelihood but also his or her professional and personal standing. Discipline, even in cases not related to patient care or safety, should never be taken lightly or for financial reasons.
6. TOMA suggests that there are a significant number of legal, operational, and administrative changes and additions that merit serious consideration by the Legislature and by the Board. These changes listed in Addendum A would greatly enhance the fairness and transparency of the current operations and restore confidence in the Board by those it licenses.
7. TOMA recommends that the Legislature provide for an increased budget of $12,000,000 or similar amount that would allow for the TMB to comply with the provisions of SB 104 and the efficient handling of licensure.

The osteopathic physicians of Texas support the TMB. However, we believe that the TMB should and can conduct itself with more effectiveness, efficiency, and transparency. Physicians find it difficult to support a board which they perceive to be unfair. It is imperative that the TMB is a strong and effective body, concerned primarily with the health and safety of the citizens of Texas . Therefore, the TMB should utilize its resources efficiently, by focusing its efforts on issues of sexual misconduct, impaired physicians and quality of care, where the Legislature has already given direction and where public safety would be well-served. TOMA physicians are, however, pleased with the TMB’s efforts to expedite the licensing process which benefits all citizens of Texas and is an example of how effective the TMB can be.

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Addendum A:
Suggested Legal, Operational and Administrative Changes to the Texas Medical Board

An Administrative Law Judge at the State Office of Administrative Hearings should be made the final decision maker on contested licensing and disciplinary cases.

Allow for pre-filing mediation at the State Office of Administrative Hearings and establish a deferred adjudication system for minor violations and/or first time offenders.

Disclosure of Board experts to defendant physicians and defendant physician's counsel prior to Informal Settlement Conference (ISC) to allow for possible impeachment or demonstration of bias, so as to present a more fair defense.

Reinstitute the private reprimand or adopt a warning mechanism that does not constitute disciplinary action and establish a pre-approval system for advertising to lower the number of complaints on this subject and give physicians a higher comfort level for this aspect of their business.

Create a statewide privately operated impairment diversion program to take needless burden off the agency and to make impaired doctors more likely to seek help without fear of disciplinary action.

Allow defense attorneys, defendant physicians and license applicants a special right of access to their respective files so that they can properly and thoroughly present their cases. It is a basic legal right for the accused to face their accuser(s) in legal proceedings against them.

Establish an Open Records and Open Meetings monitor from the public to oversee and report on open government issues of the Texas Medical Board. Establish a statute of limitations on certain types of cases such as record-keeping and minor violations, but not on more serious matters which involve criminal activity. Establish a legislative mechanism for oversight of the Texas Medical Board Executive Director such as confirmation by the Senate at the first opportunity.


Board of Trustees Action Taken: House of Delegates Action Taken:
__X___ Approved _X____ Approved
_____ Disapproved _____ Disapproved
_____ Amended _____ Amended & Approved