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.

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.

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.

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.

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.

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.

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.

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.

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.