The most critical piece of legislation that directly effects licensed health professionals has been drafted and it requires your active support. HB 998 [sponsored by Fred Brown (R) and Eddie Luico III (D)] takes final decision-marking authority away from the licensing board gives them to administrative law judges in contested case hearings.
Over the last few years, there has been a significant increase in the issues and concerns from medical professionals, the legal community, and the general public regarding the process and procedures pertaining to disciplinary matters of the various health licensing Board. The Boards including Medical, Nursing, Chiropractors, Dentist, Podiatric, Optometry, Pharmacy, Physical Therapist, Psychologist, Licensed Professional Counselors, Social Workers, Marriage and Family Counselors, and Veterinary Boards.
The current system involves a significant period of investigation of each complaint which typically takes months or longer. Unless the matter is dismissed based on internal agency review, a complaint will most often end up at an Informal Settlement and Show Compliance Conference (ISC) in front of Board representatives where the matter can be resolved by agreement, recommended for dismissal, expedited for possible temporary suspension/restriction or forwarded to the State Office of Administrative Hearings (SOAH) for a contested public hearing before an administrative law judge (ALJ). Most cases that are not resolved by agreement are referred to SOAH.
Under the existing law, the ALJ hears all of the witnesses and considers all of the evidence, but is only authorized to make recommendations to the Board in the form of a Proposal for Decision (PFD). Once a contested case is the subject of a written PFD followed by responsive exceptions and replies by the respective parties, the record and the PFD are routed to the full Board for consideration and the rendering of an order by the Boards.
Ultimately, the Boards can and regularly does change the ALJ’s proposed findings of fact, conclusions of law, and the outcome. The Board is essentially empowered to overturn, vacate, or modify the recommended decision by the ALJ who actually heard testimony, observed witness demeanor, and considered the other documentary and tangible evidence. The Board is only required to explain why it altered the ALJ’s determinations. “Policy reasons” have been deemed sufficient justification to alter and deviate from the PFD.
In short, the licensee is required to be judged and sanctioned by the same body that was unable to resolve the matter by agreement at the ISC or through mediation. HB 998 solves this process.
This process has been described as convoluted and slow. It has also been widely criticized as creating an appearance of unfairness stemming from unbridled centralized power. It is undeniably proving to be an inefficient use of taxpayer funds and agency resources.
By establishing the SOAH Administrative Law Judge as the final decision maker in contested cases, this bill would save money, would free up human resources, would promote more earnest negotiation at the ISC level, would reduce delays in disciplinary action, would improve perceptions regarding fairness of the system, and would eliminate a level of bureaucracy that is neither efficient nor cost-conscious. It would have the added benefit of allowing Board members to take a more active role in the prompt and judicious prosecution of violations before the State Office of Administrative Hearings. The safeguard for erroneous decisions would remain in place as it exists under the current statutory framework whereby either the agency or the licensee can appeal the administrative decision through the court system.
I strongly encourage you to support this bill as I truly believe will result in fair results for both sides. This bi-partisan bill will bring balance to the relationship between licensees and their Boards.
Please contact both your state representative and State senator. If you do not know who there are, please go to http://www.legis.state.tx.us.
Contact them by phone, e-mail, and letter. Also contact Representative Todd Hunter, chair of the House Committee on Judiciary and Civil Jurisprudence who will hear this bill in the near future.
Thursday, March 12, 2009
Tuesday, March 10, 2009
On-Line Posting vs. Doctors
ABC news ran a story regarding consumer reviews of doctors.
http://cosmos.bcst.yahoo.com/up/player/popup/?rn=20826&cl=12381541&ch=130510
The story is interesting in that it appears to pit doctors vs. patients. I think this is somewhat unfortunate. Nevertheless, it does speak to the critical nature of good communication skills with the patient. All the negative comments sited in the piece deal with the doctor not communicating well and making the patients wait too long for too little care.
There are ease solutions to such problems, such as advising patients of wait times due to a medical emergency and to ensuring that all the patient's questions are answered. Studies have shown that improved communications decrease the likelihood of malpractice suits, and I believe that also translates into Board complaints. Food for thought.
http://cosmos.bcst.yahoo.com/up/player/popup/?rn=20826&cl=12381541&ch=130510
The story is interesting in that it appears to pit doctors vs. patients. I think this is somewhat unfortunate. Nevertheless, it does speak to the critical nature of good communication skills with the patient. All the negative comments sited in the piece deal with the doctor not communicating well and making the patients wait too long for too little care.
There are ease solutions to such problems, such as advising patients of wait times due to a medical emergency and to ensuring that all the patient's questions are answered. Studies have shown that improved communications decrease the likelihood of malpractice suits, and I believe that also translates into Board complaints. Food for thought.
Monday, March 9, 2009
Perry Appoints Two Members to Acupuncture Board
Gov. Rick Perry has appointed two new public members Suehing “Sue” Chiang of Sugar Land and Linda Wynn Drain of Lucas to the Texas State Board of Acupuncture Examiners for terms to expire Jan. 31, 2015. The board regulates the practice of acupuncture in the state of Texas.
Chiang is a retired elementary school teacher and current substitute teacher for the Fort Bend Independent School District. She is a past member of the Governor’s Commission for Women, and a member of the Sugar Land Parks and Recreation Advisory Board, Fort Bend County Judge Citizen Advisory Committee and Fort Bend ISD Education Foundation Board of Directors. She is also a member of the Methodist Sugar Land Board of Trustee. Chiang received a bachelor’s degree from the University of Houston. She replaces Sheng Chen of Austin.
Drain is a partner at Nolte, Drain and Rosenthal PLLC. She is a member of the Collin County Bar Association, Collin County Criminal Defense Lawyers Association, and Texas Bar Foundation. She is also a founding member of the Collin County Bench/Bar Association and the CITY House Board of Directors. Drain received a bachelor’s degree from Texas Southern University and a law degree from South Texas College of Law. She replaces Pedro “Pete” Garcia of Frisco.
Chiang is a retired elementary school teacher and current substitute teacher for the Fort Bend Independent School District. She is a past member of the Governor’s Commission for Women, and a member of the Sugar Land Parks and Recreation Advisory Board, Fort Bend County Judge Citizen Advisory Committee and Fort Bend ISD Education Foundation Board of Directors. She is also a member of the Methodist Sugar Land Board of Trustee. Chiang received a bachelor’s degree from the University of Houston. She replaces Sheng Chen of Austin.
Drain is a partner at Nolte, Drain and Rosenthal PLLC. She is a member of the Collin County Bar Association, Collin County Criminal Defense Lawyers Association, and Texas Bar Foundation. She is also a founding member of the Collin County Bench/Bar Association and the CITY House Board of Directors. Drain received a bachelor’s degree from Texas Southern University and a law degree from South Texas College of Law. She replaces Pedro “Pete” Garcia of Frisco.
Thursday, March 5, 2009
Why Physician Ads Should be Pre-Approved.
The concern with advertising regulation by the Texas Medical Board (TMB) is the potentially false or misleading advertising. While the TMB has rules on the subject, little is done to educate physicians, clinic personnel, and office administrators about the pitfalls in physician advertising and there is really no mechanism in place to steer them clear of missteps prior to promulgating advertising that is in violation.
Instead, the TMB has simply taken a no tolerance stance on advertising violations that amounts to “if it’s wrong you’ll be fined or otherwise disciplined regardless of why its wrong.” Physicians are held strictly responsible for any advertising violation even if there are significant extenuating or mitigating circumstances. For instance, a physician who used trusted family members and well qualified marketers and web designers to put together a clinic website was held accountable even though lied to by one of the design team that said the language had been cleared by a legal review when in fact the team member did not run it by the doctor’s attorney. Situation was saying the doctor’s specialty was best able to handle certain conditions, which is a violation of Board rule for advertising professional superiority. It would be the equivalent of a circulating nurse falsifying the sponge count when a surgeon is closing after surgery and then holding the doctor responsible for leaving one in the patient even though he specifically asked the nurse if the count was correct and the nurse lied. It led to a $1000 fine and a permanent disciplinary record for advertising professional superiority that is not readily susceptible to proof. No patient was harmed and the complaint was most likely filed by a competitor. The doctor otherwise had a clean record and a long and respected career in a difficult specialty.
Similarly, doctors are disciplined for advertising violations that include leaving off the name of the certifying organization and simply stating “Board Certified” in a particular specialty without identifying the specialty board or for having mistakenly cited to specialty boards which the TMB doesn’t recognize by rule as sufficiently legitimate. Others have faced disciplinary action for one word errors such as saying “the” leading clinic rather than “a” leading clinic. Such violations are often tied more to marketing personnel at the clinic and oversights by administrative personnel rather than busy doctors delving into and trying to dodge the intricacies and nuances of physician advertising regulation in Texas.
From my experience, patients being misled is not the catalyst for action. Instead, it boils down to competitors not liking the ads and the TMB trying to boost its disciplinary numbers to look stronger to the legislature, the media, and consumer groups. Currently, physicians who violate advertising regulations without intent despite best efforts are lumped into a group of advertising violators who push the envelope intentionally. The solution appears to be addressing the problem on the front end.
Rather than investigate and pursue a myriad of advertising violations with the expenditure of resources that could be used on quality of care cases, and rather than stigmatize doctors with disciplinary actions on the back end of the equation, there should be an advertising pre-approval system much like the State Bar has for lawyers.
Yes, physicians would have to pay a fee to get advertising pre-approved and would have a delay before they could circulate an ad; however, it is better to do that than go through a prolonged investigation and end up with a higher cost in legal fees, time lost out of clinic, and an agency fine. The fee would self-fund the program.
While the TMB in could set up a system through their rule making authority, they have been reluctant to do so — presumably due to the time and cost.
It should be kept in mind that a disciplinary action by the TMB can have far reaching adverse impact on a physician. If later disciplined for anything else the prior action is an aggravating circumstance even if different subject matter and can result in stiffer discipline in the second situation. Even advertising violations must be reported each time a physician seeks a license or license renewal in another state, seeks employment, credentials or re-credentials at a hospital, applies or renews participation in a managed care plan, or obtains or renews malpractice coverage. It remains a part of the physician’s permanent online profile on the TMB website and in TMB public records. Much of the time and money spent on these ramifications could be avoided by an advertising pre-approval system.
Instead, the TMB has simply taken a no tolerance stance on advertising violations that amounts to “if it’s wrong you’ll be fined or otherwise disciplined regardless of why its wrong.” Physicians are held strictly responsible for any advertising violation even if there are significant extenuating or mitigating circumstances. For instance, a physician who used trusted family members and well qualified marketers and web designers to put together a clinic website was held accountable even though lied to by one of the design team that said the language had been cleared by a legal review when in fact the team member did not run it by the doctor’s attorney. Situation was saying the doctor’s specialty was best able to handle certain conditions, which is a violation of Board rule for advertising professional superiority. It would be the equivalent of a circulating nurse falsifying the sponge count when a surgeon is closing after surgery and then holding the doctor responsible for leaving one in the patient even though he specifically asked the nurse if the count was correct and the nurse lied. It led to a $1000 fine and a permanent disciplinary record for advertising professional superiority that is not readily susceptible to proof. No patient was harmed and the complaint was most likely filed by a competitor. The doctor otherwise had a clean record and a long and respected career in a difficult specialty.
Similarly, doctors are disciplined for advertising violations that include leaving off the name of the certifying organization and simply stating “Board Certified” in a particular specialty without identifying the specialty board or for having mistakenly cited to specialty boards which the TMB doesn’t recognize by rule as sufficiently legitimate. Others have faced disciplinary action for one word errors such as saying “the” leading clinic rather than “a” leading clinic. Such violations are often tied more to marketing personnel at the clinic and oversights by administrative personnel rather than busy doctors delving into and trying to dodge the intricacies and nuances of physician advertising regulation in Texas.
From my experience, patients being misled is not the catalyst for action. Instead, it boils down to competitors not liking the ads and the TMB trying to boost its disciplinary numbers to look stronger to the legislature, the media, and consumer groups. Currently, physicians who violate advertising regulations without intent despite best efforts are lumped into a group of advertising violators who push the envelope intentionally. The solution appears to be addressing the problem on the front end.
Rather than investigate and pursue a myriad of advertising violations with the expenditure of resources that could be used on quality of care cases, and rather than stigmatize doctors with disciplinary actions on the back end of the equation, there should be an advertising pre-approval system much like the State Bar has for lawyers.
Yes, physicians would have to pay a fee to get advertising pre-approved and would have a delay before they could circulate an ad; however, it is better to do that than go through a prolonged investigation and end up with a higher cost in legal fees, time lost out of clinic, and an agency fine. The fee would self-fund the program.
While the TMB in could set up a system through their rule making authority, they have been reluctant to do so — presumably due to the time and cost.
It should be kept in mind that a disciplinary action by the TMB can have far reaching adverse impact on a physician. If later disciplined for anything else the prior action is an aggravating circumstance even if different subject matter and can result in stiffer discipline in the second situation. Even advertising violations must be reported each time a physician seeks a license or license renewal in another state, seeks employment, credentials or re-credentials at a hospital, applies or renews participation in a managed care plan, or obtains or renews malpractice coverage. It remains a part of the physician’s permanent online profile on the TMB website and in TMB public records. Much of the time and money spent on these ramifications could be avoided by an advertising pre-approval system.
Thursday, February 19, 2009
Full Board Meeting: February 6, 2009
At the Board meeting, it was reported that Board had nine visits from legislators this year. The Board reports it has met with several key legislators, including: Dole, Nelson Reynolds, Brown Allen, and Hartmann. On February 23rd, Mari Robinson, the Executive Order is meeting with the Senate finance committee. She asked for Board member to attend if they could. Rep. Brown has several bills that Board staff plan to closely monitor.
Ms. Robinson reports that staff is in general agreement with the Sunset review report. She also reports that Licensure meet is goals and states that staff is resolving applications in well under 51 days. However, she also reports that the amount of investigations threatens to overload the system.
Ms. Robinson reported the Board staff are working with DEA and DPS regarding pain clinics. They attempting to ensure that any pain management clinic will need the owner to be a licensed physician and the clinic will need to be registered with the board. There will be a fee with the registration. The hope is to reduce overdose deaths coming out of that area in East Texas.
Ms. Robinson reports that the Board is playing an active role on physician health and rehabilitation legislation. Again, the purpose is to move impairtment into a quasi-governmental status where physicians who self-report do not have go through the investigation and disciplinary process. If the doctors follow the guidelines, they will not be subject to action. They are hoping it will increase the numbers of physicians who will seek rehabilitation.
Ms. Robinson reports that AAPS have drafted a bill, which contains items such as: Expert panel will not be confidential; establish an oversight committee for the Board; no anonymity for complainants; the doctor in an investigation can have access to the investigative file; and the Board could not discipline a doctor without a jury trial. Board staff is working on a line by line response to the proposal. Jane McFarland is heading up the effort.
The staff reports the budget they have submitted. They are deleting rider regarding the Executive Directors salary. A Funding analysis determined areas to bring in $2Million more dollars this biennium. The goal is to have the “extra” money to pay for exceptional items in the budget. These are:
1) 11 new staff to deal with increase in investigations and prosecutions. Among the 11 individuals would be hire at least one more attorney and a physician to assist with internal reviews and likely support for the enforcement staff.
2) Information technology,
3) security, updating systems,
4) outreach program to speak to med students, pod casts,
5) merit money for staff.
Board members were encouraged to talk with legislators to get this money.
On the other hand, the Board was directed to cut 2.5 % of 2009 budget as directed by Lieutenant Governor and Speaker of the House. This means $235,000 from the budget. Cuts include:
1. $49,000 saved by not mailing out newsletters;
2. $16,000 out of staff travel;
3. $?? Document storage going to go state library;
4. $27,000 not replacing computers this fiscal year;
5. $8,000 cancelled 1 PA & 1 Acupuncture board meeting;
6. $1,200 not mailing paper license only letter to new physicians;
7. $5,000 not advertising vacant positions;
8. $10,000 not microfilming;
9. $ ?? not using ATT wireless modems;
10. $5,000 eliminating FAX lines for field staff by combing phone line and Fax line in one;
11. $8,000 in travel for management training;
12. $1,200 prior out of state travel (received a scholarship)
13. $ ?? Freeze hiring in licensure, PRC Administrative, enforcement, lawyer enforcement; and
14. $ ?? Putting off SOAH case till next year;
Of the specific cuts it equals: $122,400, thus the ?? will need to add up to $112,600.
There are two other possible cuts that may be considered:
1. $9,00 for not updating the security system; and,
2. $10,000 to cut remaining a TMB board meeting in this year.
Asking to extend the period of time from 30 to 45 day on initial processing of a complaint to avoid docs from reporting to insurance companies and peer review. Inquiry about doing teleconference for simple ISC’s to save money and speed the process
A lawsuit was filed against LMFT Board, wherein the LMFT Board authorized their practitioners the ability to “diagnose” mental illness. This allegedly allows non-licensed physicians to practice medicine. TMA is requesting that the TMB be listed as a party in the lawsuit. Dr. Michael Arambula commented that the diagnosis is based on the DSM, which LMFT practitioners use, however, some conditions such as Delirium is a physical ailment and leads to psychotic behavior. He agrees with the TMA. Consensus of the Board to join with TMA. The Board directed staff to inform TMA they will join the suit.
In late 2007, the AAPS filed a federal lawsuit against the Board. Currently, the judge abated all discovery pending rulings on certain motions.
There are also two open records issues pending in court. TMB has appealed 2 cases in the area of compliance files. There is still a question of whether these documents are open record. Open records division ruled physician monitor reports are confidential. Drug and Compliance reports would be open if this succeeds. The hearing is scheduled for March 4.
Proposal for Decision
Judge Susan Marshall from SOAH spoke on the Dr. Mark Van Wormer case. Dr. Van Wormer was convicted of a felony in New Mexico for misbranding a drug. He served time for the offense and his license was revoked upon incarceration. Judge Marshall concluded his license should be revoked due to operational law. Motion to accept ALJ’s proposal, motion carried.
Approval of Board Orders
8 Orders were pulled and discussed. Several were changed based on discussion.
Rule Changes:
a. Section 162 Rule Change must have active and unrestrictive license to supervise PA’s and APN’s. Motion passes
b. Section 171 Postgraduate training permits. Omitting these. Motion passed
c. Section 172.4 clean up of the reference . Motion carried Section 172.8 substantive change to delete institution with a program of education. Statutory cleanup from a mistake originally made. Three pubic presenters from the Methodist Hospital System. Dr. Gabor asked that the Board not delete this provision. Expand the rule from fellowships to residency programs. Osama Gabor director of Methodist Hospital is in favor of faculty temporary license. This Enables schools to recruit well qualified individuals to do research without a Texas Medical License. His license took 8 months to obtain, as he attended Medical School in Egypt and worked in many different places in the US, which took much time to get the paperwork together. Motion to pull 172.8 to bring to the work group with the intention to widen the circle of accepting qualified reputable individuals to Texas with an FTL. If there is legislation regarding this, it will make it much easier. Staff is currently putting all FTL under this rule on hold. Direction to staff to continue doing what they are doing. Vote for publication in April and adopt at June meeting
d. Section 175.1 and Section 175.3 changing penalty fee, motion passes
e. Section 185.2 PA cannot be supervised by a physician with a restriction on license. Motion passes
f. Section 189.1 statutory changes to the rule, changes to names of the boards
Section 189.4 D same issues on supervising PA’s. Motion passes.
Rule changes to Acupuncture Rule, motion passes.
Ms. Robinson reports that staff is in general agreement with the Sunset review report. She also reports that Licensure meet is goals and states that staff is resolving applications in well under 51 days. However, she also reports that the amount of investigations threatens to overload the system.
Ms. Robinson reported the Board staff are working with DEA and DPS regarding pain clinics. They attempting to ensure that any pain management clinic will need the owner to be a licensed physician and the clinic will need to be registered with the board. There will be a fee with the registration. The hope is to reduce overdose deaths coming out of that area in East Texas.
Ms. Robinson reports that the Board is playing an active role on physician health and rehabilitation legislation. Again, the purpose is to move impairtment into a quasi-governmental status where physicians who self-report do not have go through the investigation and disciplinary process. If the doctors follow the guidelines, they will not be subject to action. They are hoping it will increase the numbers of physicians who will seek rehabilitation.
Ms. Robinson reports that AAPS have drafted a bill, which contains items such as: Expert panel will not be confidential; establish an oversight committee for the Board; no anonymity for complainants; the doctor in an investigation can have access to the investigative file; and the Board could not discipline a doctor without a jury trial. Board staff is working on a line by line response to the proposal. Jane McFarland is heading up the effort.
The staff reports the budget they have submitted. They are deleting rider regarding the Executive Directors salary. A Funding analysis determined areas to bring in $2Million more dollars this biennium. The goal is to have the “extra” money to pay for exceptional items in the budget. These are:
1) 11 new staff to deal with increase in investigations and prosecutions. Among the 11 individuals would be hire at least one more attorney and a physician to assist with internal reviews and likely support for the enforcement staff.
2) Information technology,
3) security, updating systems,
4) outreach program to speak to med students, pod casts,
5) merit money for staff.
Board members were encouraged to talk with legislators to get this money.
On the other hand, the Board was directed to cut 2.5 % of 2009 budget as directed by Lieutenant Governor and Speaker of the House. This means $235,000 from the budget. Cuts include:
1. $49,000 saved by not mailing out newsletters;
2. $16,000 out of staff travel;
3. $?? Document storage going to go state library;
4. $27,000 not replacing computers this fiscal year;
5. $8,000 cancelled 1 PA & 1 Acupuncture board meeting;
6. $1,200 not mailing paper license only letter to new physicians;
7. $5,000 not advertising vacant positions;
8. $10,000 not microfilming;
9. $ ?? not using ATT wireless modems;
10. $5,000 eliminating FAX lines for field staff by combing phone line and Fax line in one;
11. $8,000 in travel for management training;
12. $1,200 prior out of state travel (received a scholarship)
13. $ ?? Freeze hiring in licensure, PRC Administrative, enforcement, lawyer enforcement; and
14. $ ?? Putting off SOAH case till next year;
Of the specific cuts it equals: $122,400, thus the ?? will need to add up to $112,600.
There are two other possible cuts that may be considered:
1. $9,00 for not updating the security system; and,
2. $10,000 to cut remaining a TMB board meeting in this year.
Asking to extend the period of time from 30 to 45 day on initial processing of a complaint to avoid docs from reporting to insurance companies and peer review. Inquiry about doing teleconference for simple ISC’s to save money and speed the process
A lawsuit was filed against LMFT Board, wherein the LMFT Board authorized their practitioners the ability to “diagnose” mental illness. This allegedly allows non-licensed physicians to practice medicine. TMA is requesting that the TMB be listed as a party in the lawsuit. Dr. Michael Arambula commented that the diagnosis is based on the DSM, which LMFT practitioners use, however, some conditions such as Delirium is a physical ailment and leads to psychotic behavior. He agrees with the TMA. Consensus of the Board to join with TMA. The Board directed staff to inform TMA they will join the suit.
In late 2007, the AAPS filed a federal lawsuit against the Board. Currently, the judge abated all discovery pending rulings on certain motions.
There are also two open records issues pending in court. TMB has appealed 2 cases in the area of compliance files. There is still a question of whether these documents are open record. Open records division ruled physician monitor reports are confidential. Drug and Compliance reports would be open if this succeeds. The hearing is scheduled for March 4.
Proposal for Decision
Judge Susan Marshall from SOAH spoke on the Dr. Mark Van Wormer case. Dr. Van Wormer was convicted of a felony in New Mexico for misbranding a drug. He served time for the offense and his license was revoked upon incarceration. Judge Marshall concluded his license should be revoked due to operational law. Motion to accept ALJ’s proposal, motion carried.
Approval of Board Orders
8 Orders were pulled and discussed. Several were changed based on discussion.
Rule Changes:
a. Section 162 Rule Change must have active and unrestrictive license to supervise PA’s and APN’s. Motion passes
b. Section 171 Postgraduate training permits. Omitting these. Motion passed
c. Section 172.4 clean up of the reference . Motion carried Section 172.8 substantive change to delete institution with a program of education. Statutory cleanup from a mistake originally made. Three pubic presenters from the Methodist Hospital System. Dr. Gabor asked that the Board not delete this provision. Expand the rule from fellowships to residency programs. Osama Gabor director of Methodist Hospital is in favor of faculty temporary license. This Enables schools to recruit well qualified individuals to do research without a Texas Medical License. His license took 8 months to obtain, as he attended Medical School in Egypt and worked in many different places in the US, which took much time to get the paperwork together. Motion to pull 172.8 to bring to the work group with the intention to widen the circle of accepting qualified reputable individuals to Texas with an FTL. If there is legislation regarding this, it will make it much easier. Staff is currently putting all FTL under this rule on hold. Direction to staff to continue doing what they are doing. Vote for publication in April and adopt at June meeting
d. Section 175.1 and Section 175.3 changing penalty fee, motion passes
e. Section 185.2 PA cannot be supervised by a physician with a restriction on license. Motion passes
f. Section 189.1 statutory changes to the rule, changes to names of the boards
Section 189.4 D same issues on supervising PA’s. Motion passes.
Rule changes to Acupuncture Rule, motion passes.
Thursday, February 12, 2009
Notes From Disciplinary Process Review Committee 2/5/09
For reasons under know, Board staff isolated those seeking to appeal a dismissal of their complaints. They all waited in a room off from where the meeting is held. All appeals are heard in Executive Session, thus away from the public. It is important to note that physicians are not advised that their cases are under appeal.
Board staff reported that for this fiscal year (runs from September 1 to August 31), the number of investigations opened and generally equal to last year. Last year, the Board opened 2725 investigations.
What is interesting, and we did not hear an explanation for this, but the number of Informal Settlement Conferences (disciplinary hearings) are up from last fiscal year. In all of fiscal year 2008, the Board held 521 Informal Settlement Conferences, which 19% of the total investigations. This year, 1/3 of they way through the year, the Board has already held 224 Informal Settlement Conferences.
Staff advised Board members, the Board five to six Informal Settlement Conferences for each hearing date. The Board staff is restricting the granting of continuances.
Mari Robinson, the Executive Director, recommended to the Board members that the agency should pursue federal law changes that permit all physician licensing agencies agree to share all files regarding physicians. Also, she wants the agencies to retain the confidentiality protections they had in its original board. The reason for this is Texas has stricter rules regarding confidentiality than many other states. The concerns is that releasing information to sister agencies may compromise Texas records. As an example, in Iowa, their hearings similar to that of Informal Settlement Conferences are open to the public. Any information that Texas may supply to the Iowa Board would be released in Iowa, but would be completely restricted in Texas.
The Board members voted to have staff purse a recommendation to Federation of State Medical Boards to have confidentiality laws conform across state lines.
Dr. Alan Moore, the Medical Director, reported that he is working hard to get more panelists to review records for the Board. He has recruited 14 new physicians so far. He reported that doctors are just not responding to the request letters. Lots of letters have been sent out to doctors across Texas. He reports the Board is in dire need of neurosurgery monitors.
A Board member asked Dr. Moore whether Texas Medical Foundation (TMF) was guarding its list of expert. Dr. Moore stated TMF has a new medical director and they had talked. It appears TMF will share its list with the Board.
Dr. Moore shared an idea to award Board consultants CME hours for reviewing cases.
Kim Barron was introduced as the Board staff member who is handling the recruitment of panelists. Dr. Moore reported that he trying to increase his exposure to the reviewers and monitors.
My Take:
1. I take issue with the appeals process for complaints. I feel that the practitioners should receive notice. I also feel that a strict standard should be established to re-open a closed investigation. Currently, there is not a strict standard of when an investigation is re-opened.
2. The numbers disciplinary continue to increases. If the disciplinary hearings trend continued and the number if investigations continue to remain strong, but flat, that means that a quarter of investigations will result in ISC if these numbers hold true. Therefore, I believe it is critical that people get help as soon as possible in the investigative process and not wait until and hearing is set to get expert assistance. Self-serving I know, but the numbers don’t lie.
3. Rather than continue to make everything confidential, I think the Board, and the government in general, needs to work on transparency; not secrecy.
4. The lack of consultants for the Board has resulted in a serious backlog of cases. I wish Dr. Moore good luck locating consultants. The key is, however, there needs to be better training and mentoring of these individuals. I cannot tell you how many reports that can be distilled down to: I would not do it that way; therefore, it’s below the standard of care. Sorry, that is not the measure. Medicine is as much art as science. Individual physicians need to have the flexibility to use their judgment to care for patients.
Board staff reported that for this fiscal year (runs from September 1 to August 31), the number of investigations opened and generally equal to last year. Last year, the Board opened 2725 investigations.
What is interesting, and we did not hear an explanation for this, but the number of Informal Settlement Conferences (disciplinary hearings) are up from last fiscal year. In all of fiscal year 2008, the Board held 521 Informal Settlement Conferences, which 19% of the total investigations. This year, 1/3 of they way through the year, the Board has already held 224 Informal Settlement Conferences.
Staff advised Board members, the Board five to six Informal Settlement Conferences for each hearing date. The Board staff is restricting the granting of continuances.
Mari Robinson, the Executive Director, recommended to the Board members that the agency should pursue federal law changes that permit all physician licensing agencies agree to share all files regarding physicians. Also, she wants the agencies to retain the confidentiality protections they had in its original board. The reason for this is Texas has stricter rules regarding confidentiality than many other states. The concerns is that releasing information to sister agencies may compromise Texas records. As an example, in Iowa, their hearings similar to that of Informal Settlement Conferences are open to the public. Any information that Texas may supply to the Iowa Board would be released in Iowa, but would be completely restricted in Texas.
The Board members voted to have staff purse a recommendation to Federation of State Medical Boards to have confidentiality laws conform across state lines.
Dr. Alan Moore, the Medical Director, reported that he is working hard to get more panelists to review records for the Board. He has recruited 14 new physicians so far. He reported that doctors are just not responding to the request letters. Lots of letters have been sent out to doctors across Texas. He reports the Board is in dire need of neurosurgery monitors.
A Board member asked Dr. Moore whether Texas Medical Foundation (TMF) was guarding its list of expert. Dr. Moore stated TMF has a new medical director and they had talked. It appears TMF will share its list with the Board.
Dr. Moore shared an idea to award Board consultants CME hours for reviewing cases.
Kim Barron was introduced as the Board staff member who is handling the recruitment of panelists. Dr. Moore reported that he trying to increase his exposure to the reviewers and monitors.
My Take:
1. I take issue with the appeals process for complaints. I feel that the practitioners should receive notice. I also feel that a strict standard should be established to re-open a closed investigation. Currently, there is not a strict standard of when an investigation is re-opened.
2. The numbers disciplinary continue to increases. If the disciplinary hearings trend continued and the number if investigations continue to remain strong, but flat, that means that a quarter of investigations will result in ISC if these numbers hold true. Therefore, I believe it is critical that people get help as soon as possible in the investigative process and not wait until and hearing is set to get expert assistance. Self-serving I know, but the numbers don’t lie.
3. Rather than continue to make everything confidential, I think the Board, and the government in general, needs to work on transparency; not secrecy.
4. The lack of consultants for the Board has resulted in a serious backlog of cases. I wish Dr. Moore good luck locating consultants. The key is, however, there needs to be better training and mentoring of these individuals. I cannot tell you how many reports that can be distilled down to: I would not do it that way; therefore, it’s below the standard of care. Sorry, that is not the measure. Medicine is as much art as science. Individual physicians need to have the flexibility to use their judgment to care for patients.
Wednesday, February 11, 2009
Notes from the Executive Committee of the Texas Medical Board from February 5, 2009
The biggest news and least surprising was the Board made Mari Robinson the Executive Director, removing the “interim” tag that she has carried for the past several months.
The Board also approved Dr. Moore to be the full-time Medical Director.
An issue that will dominate the Board and government in general due to the country’s economic crisis is the budget. Thus, the Board is looking at ideas to generate income for itself. Some of the ideas are as follows:
1) A proposal to have the Board offer on-line CME, in such areas as ethics and chart monitoring online. The Board does not have to be certified through a CME group to offer CME. They will have to change the rules to say the Board will accept any Board produced course. Ms. Robinson mentioned that the Board has the authority to change the language. In order to further study this, a subcommittee was formed. Those volunteering include: Dr. Margaret McNeese, Dr. Melinda McMichael, Mr. Timothy Webb, Dr. Charles Oswald and Ms. Annette Raggette.
2) License verification by hospitals, peer review committees or other states will be charged for the verification beginning Sept 2009.
3) Wall certificates – currently applicants receive a letter and an 8 x 10 piece of paper stating they are licensed. They are considering offering (not requiring) a larger, higher quality licensure certificate for a cost of between $30 - $50. This cost range is comparable to other states and Texas is one of the few states that do not offer this.
4) JP Exam questions – currently the Board drafts questions for the exam without charging. They are considering drafting questions and publishing them online with a guide to process the answer results. There will be a charge for this. The Board wants the physicians to KNOW the answers to these questions, not use the exams as a way to “get” them.
The next issue of note was a discussion on how to categorize complaints coming into the agency through Board members. Currently, such complaints are merely labeled “TMB” without identifiers on who specifically requested the investigation opened. This practice has been questioned by some. There is a concern that this is perceived as unethical. Ms. Robinson defended the practice.
There was a discussion that if Board members make complaints, should they be under TMB or under the Board member name. There was agreement that there is nothing wrong with a Board member reporting illegal behavior. Mr. Robert Simpson, the General Counsel, agreed that it was legal for Board members to do so.
Dr. Irvine Zeitler, the Board president, expressed that he has received numerous complaints from all over the state. It is his practice to encourage people who communicate to him to make the complaint themselves. Ms. Paulette Southard also stated that she also directly receives complaints. She states some of the people fear retribution, thus do not make the complaint themselves. Mr. Simpson agreed that it is a “cleaner situation” to have the person make the complaint, but if the person is just not willing, then it may be accept to have the Board member make the complaint.
Ms. Julie Attebury suggested sub-categorizing such complaints. For example, if staff opens a complaint based on information found during the course of an investigation versus a complaint made by a Board member.
The Board members directed staff to allow board members submitting complaints to decide on an individual complaints basis how to classify.
My Take:
1. I sincerely wish Ms. Robinson and Dr. Moore the best of luck. I hope they continue to do outreach and work with all parties, including the defense bar to make this system work for everyone.
2. I have no problems with the Board attempting to generate income. I especially like “giving” the answers to the jurisprudence test. It does not make any sense to play “hide the ball” with those questions, as it benefits everyone to know all the answers to the test. You know the answers to the test; hopefully the licensee will learn the law.
3. On the issue of Board members making complaints, m feeling is that the Board is currently suffering from a serious perception problems on this specific topic. The fact of the matter it does not matter if all complaints made by Board members are wholly legitimate, it does appear to be an abuse of power. As with many things in life perception is reality. Therefore, the Board members need to be careful in this regard. I believe that Dr. Zeitler is correct in his efforts to encourage people who complain to him to report their concerns to the Board. That is the proper method of dealing with this matter. Moreover, if a Board member has a legitimate, factually based concern regarding a practitioner, I do not have a problem with them reporting this. However, I believe the Board member should also sign a waiver to disclose that he or she made the complaint. That transparency will help the Board and the image of the Board. This will diminish the allegations of abuse of power. Note that I said legitimate, factually based concern. I strongly do not believe any Board member or Board staff should file a complaint against a licensee based solely on comments made by someone…that is hearsay, plain and simple. If there is objective evidence that’s one thing; subjective, unsupported comments are another. Whether that has been done or not in the past, I don’t honestly know. But is it the perception that it has that has hurt the image of the Board in the physician community. Transparency is the solution to this issue.
The Board also approved Dr. Moore to be the full-time Medical Director.
An issue that will dominate the Board and government in general due to the country’s economic crisis is the budget. Thus, the Board is looking at ideas to generate income for itself. Some of the ideas are as follows:
1) A proposal to have the Board offer on-line CME, in such areas as ethics and chart monitoring online. The Board does not have to be certified through a CME group to offer CME. They will have to change the rules to say the Board will accept any Board produced course. Ms. Robinson mentioned that the Board has the authority to change the language. In order to further study this, a subcommittee was formed. Those volunteering include: Dr. Margaret McNeese, Dr. Melinda McMichael, Mr. Timothy Webb, Dr. Charles Oswald and Ms. Annette Raggette.
2) License verification by hospitals, peer review committees or other states will be charged for the verification beginning Sept 2009.
3) Wall certificates – currently applicants receive a letter and an 8 x 10 piece of paper stating they are licensed. They are considering offering (not requiring) a larger, higher quality licensure certificate for a cost of between $30 - $50. This cost range is comparable to other states and Texas is one of the few states that do not offer this.
4) JP Exam questions – currently the Board drafts questions for the exam without charging. They are considering drafting questions and publishing them online with a guide to process the answer results. There will be a charge for this. The Board wants the physicians to KNOW the answers to these questions, not use the exams as a way to “get” them.
The next issue of note was a discussion on how to categorize complaints coming into the agency through Board members. Currently, such complaints are merely labeled “TMB” without identifiers on who specifically requested the investigation opened. This practice has been questioned by some. There is a concern that this is perceived as unethical. Ms. Robinson defended the practice.
There was a discussion that if Board members make complaints, should they be under TMB or under the Board member name. There was agreement that there is nothing wrong with a Board member reporting illegal behavior. Mr. Robert Simpson, the General Counsel, agreed that it was legal for Board members to do so.
Dr. Irvine Zeitler, the Board president, expressed that he has received numerous complaints from all over the state. It is his practice to encourage people who communicate to him to make the complaint themselves. Ms. Paulette Southard also stated that she also directly receives complaints. She states some of the people fear retribution, thus do not make the complaint themselves. Mr. Simpson agreed that it is a “cleaner situation” to have the person make the complaint, but if the person is just not willing, then it may be accept to have the Board member make the complaint.
Ms. Julie Attebury suggested sub-categorizing such complaints. For example, if staff opens a complaint based on information found during the course of an investigation versus a complaint made by a Board member.
The Board members directed staff to allow board members submitting complaints to decide on an individual complaints basis how to classify.
My Take:
1. I sincerely wish Ms. Robinson and Dr. Moore the best of luck. I hope they continue to do outreach and work with all parties, including the defense bar to make this system work for everyone.
2. I have no problems with the Board attempting to generate income. I especially like “giving” the answers to the jurisprudence test. It does not make any sense to play “hide the ball” with those questions, as it benefits everyone to know all the answers to the test. You know the answers to the test; hopefully the licensee will learn the law.
3. On the issue of Board members making complaints, m feeling is that the Board is currently suffering from a serious perception problems on this specific topic. The fact of the matter it does not matter if all complaints made by Board members are wholly legitimate, it does appear to be an abuse of power. As with many things in life perception is reality. Therefore, the Board members need to be careful in this regard. I believe that Dr. Zeitler is correct in his efforts to encourage people who complain to him to report their concerns to the Board. That is the proper method of dealing with this matter. Moreover, if a Board member has a legitimate, factually based concern regarding a practitioner, I do not have a problem with them reporting this. However, I believe the Board member should also sign a waiver to disclose that he or she made the complaint. That transparency will help the Board and the image of the Board. This will diminish the allegations of abuse of power. Note that I said legitimate, factually based concern. I strongly do not believe any Board member or Board staff should file a complaint against a licensee based solely on comments made by someone…that is hearsay, plain and simple. If there is objective evidence that’s one thing; subjective, unsupported comments are another. Whether that has been done or not in the past, I don’t honestly know. But is it the perception that it has that has hurt the image of the Board in the physician community. Transparency is the solution to this issue.
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