Health License Defense

This Blog Has Moved!

2009-10-30T08:00:00.004-05:00

The Blog has moved to my law firm's website (Finally!) Please continue to subscribed and follow news from the Texas Medical Board and other health licensure agencies. I am blogging far more frequency and there are lots of changes coming. I look forward to you continuing to reading the blog. If there is anything you would like to have me blog about or have questions, please left a comment or e-mail me at porter@healthlicensedefense.com.

The new blog can be found at: http://www.healthlicensedefense.com/b/

See you there!

Medical Board Thinking of By-Passing the ISC Process

2009-09-22T18:29:00.000-05:00

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

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

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

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

Perry Appoints Doctor to Acupuncture Board

2009-06-04T11:31:00.000-05:00

Gov. Rick Perry has appointed Dr. Rey Ximenes of Austin to the Texas State Board of Acupuncture Examiners for terms to expire Jan. 31, 2015.

Dr. Ximenes is owner, medical director and pain management specialist of the Pain and Stress Management Center. He is a member of the Texas Medical Association, Texas Society of Anesthesiologists and Texas State Naturopathic Association. He is also a volunteer race doctor for the Capitol 10K. Dr. Ximenes received a bachelor’s from the University of Texas at Austin and a medical degree from the University of Texas Medical School at Houston. He replaces Dr. Donald Counts of Austin.

Notes from the May 28th & 29th Texas Medical Board Meeting

2009-06-01T10:23:00.002-05:00

THURSDAY MAY 28, 2009 Texas Medical Board Meeting

Executive Meeting
Executive Session at 8:35 am to discuss Item # 1 on Agenda – Discussion of personnel matters.
Robert Simpson, the Board’ General Counsel, resigned last week. Nancy Leshikar was named interim General Counsel. Ms. Leshikar was the Litigation Manager. Scott Freshour was named interim to that position.

Joe Tabarraci was counsel to the Board to this meeting.
On Friday, the Board will hold election on Friday to elect a new Vice President. Mr. Tim Turner indicated he was interested. If he becomes Vice President, then there is a Secretary /Treasurer opening. There will be a call from the floor for nominations on Friday. Dr. Price’s term as Vice President expired last meeting when his term expired.
Adjourned 9:09

Finance Committee at 9:10 AM

General Revenue appropriated 6.5 M expended 2.4M
Received 18.4 M in revenue. 2.6 M appropriated
1.7M in dedicated funds as of April 30

General Revenue and Gen Revenue Dedicated are 2 separate funds that cannot mix.
Problem – Controller’s office said they could take money out of one pocket, but then it changed and said no. They had this agreement to use funds from the fund in question in writing. Decided to start charging for something they had not charged for before. They met with the LBB and Board members contacted their legislators. Found out yesterday the issue has been resolved where they will not suffer a 1M loss. The legislature expected the Board to raise the money needed. Julie Attebury stated the Board has always brought in more revenue into the system than needed to cover expenses, but all revenue goes into the system, and they will only give you back what they want to give you back. The Board will need to make some changes and start tracking the cash more closely.

Had adjustment for the $800,000 but got additional money

They have received money to hire additional employees. They can hire a person to do education, hire an IT person, hire additional staff and make adjustments to staff salaries since they were told they were underpaying staff. The Board will need to raise fees. License renewals for all licenses will incur an increase of $28.50 per year.

They will now have a challenge of where to put people. The Board will be increasing staff by 14 – 20 people. They have requested the people in charge of space do a walk- through and consolidate other spaces so TMB can get more space and possibly keep al staff in one location. The other option is to remove one of their divisions and put it into lease space. They do not want to do this, but that will probably need to happen.

APPLICATION FEES
Question: Is there another avenue to increase fees other than licensure? Mari Robinson’s response is” not really”. Need to raise an additional $5M.
Question: What was the result of the idea of selling large Medical License certificates? This endeavor will take a rework of their web page to allow people to do that and it is simply would not bring in enough money. Every other board raised fees. There has not been a fee increase for over 5 years. Dr. George Williford asked should there be a definite program to explain why the fees are being increased. He hopes there is some thought about how the message will be presented.
They now have money to create the educational system where they go out into the community every month. Spoke with TMA about crafting a message stating: “This is what the legislator has decreed, and this will pay for what you want.” 1) Physicians have indicated that they would like to be involved in the initial review process. 2) Offer free CME in 12 different cities. 3) Improving the IT systems in order to make systems more user friendly. Dr. Williford learned from legislative session that they need to continue to get the message out about what is going on at the Board. Educational sessions may include pod casts. Suggestion to use all communication conduits to make the Board seem fairer.

Question Dr. Scott Holiday asked how do our fees rank compared to other states. Considering that TX has biannual registration, probably about the middle or the top third. $400 of the fee is an occupations tax. If you take that away, the fee is really low. In comparison, some states have income taxes.

Dr. Irvin Zeitler feels that communication and education to the doctors will help them to understand the need for the fee increase. The rules will go into effect Sept 1, 2009. First registration group will go into effect Nov 30, 2009. This time period will give them time to figure the best way to inform current licensees. They are considering a letter to be read at the time of online registration. Dr. Williford cautions that this is not adequate, as doctors and other licensees will begin to hear about the increase before they need to re-register and spread negative opinions about it without understanding the rationale.

Item # 4 Change to 171.3F: There are 2 sets of fees changes within this rule. Acupuncture providers could submit between 1 to 10 CAE courses and there would be a flat rate. Change to fees will reflect a fee per course basis due to the amount of time needed by staff to review multiple courses where they only paid the flat fee. Change to 172 also.

Adjourned 9:37

Welcome to new members. They will be introduced on Friday, May 29, 2009 and will be invited to make a statement.

DISCIPLINARY PROCESS REVIEW COMMITTEE
Called to order 9:55 AM

Dr. Melinda McMichael opened the meeting as chair for the committee.

Three people appearing for appeals --2 under jurisdictional, 1 under jurisdictional not-filed.

Went into Executive Session 9:57 am Ended Exec session at 11:41

08- 576 Psych facility and use of Seroquil in an amount not ordered by the physician. Could direct TMB to refer to the Nursing Board to look at the actions of the nurse and the doubling the dose. Ms. Julie Attebury moved to refer to nursing board. Deny appeal as to the physician.

09-0031 Case with feeding tube placement. And death certificate. Dr. Zeitler questioned about the death certificate. Physician has 10 business days to sign this. Expired on May 5th and document signed on the 21st (12 days). Really don’t know when the physician received the certificate. Dr. Allan Schulkin moved to deny the appeal regarding feeding tube. Dr. Zeitler Moved to go back and get records from the funeral home as to the delivery and receipt of the death certificate.

08-3978 Denied the appeal. The law required a report be made if there is suspicion of abuse. This doctor was required by law to file the report.

JURISDICTIONAL COMPLAINTS
08-2261 Dr. Patrick Crocker – overview of the case: 60 year old male died suddenly with URI. Appeal based on suspicion of pulmonary embolus that was not diagnosed. Patient was treated for URI, bronchitis, possibly pneumonia. Died in hospital. Post mortem did not show signs of pulmonary embolus. Not enough info to grant appeal.

08-2467 Elderly lady presented with abdominal pain and weight loss. Did not have CT scan three months later found with abdominal cancer. He agrees with the dissenting panelist that the standard of care required a CT scan in an elderly patient. The key factor was the weight loss. An appeal would require a new set of experts with specific questions for them to focus on. Question: Should a CT scan be done? One of the panelists was a physician in the military and Dr. Williford wondered if the Standard of Care was the same in the military as in secular medicine. Dr. Williford moved to send to another set of experts focusing on the question above.

LEGAL CASES 07-5994 08-0351 Felt they did not have all of the information in the file. Main issue was upcoding. Panel found that post ISC docs may lead the panel to believe this was not a violation of upcoding. Dr. Margaret McNeese could not find a report of what happened at the ISC. There is a very brief memo. A letter was sent out indicating dismissal to the Doctor. Executive Session to discuss above case
Moved to appeal by sending back for review to verify the number of files audited.

Case: 16 yo female Doc doing examination without gloves or washing hands. Dr. Zeitler wants to recommend sending a letter to the doctor pointing out the consequences of what he did. Motion to deny appeal and write a custom letter. Passed

Motion to deny remaining appeals
JURISDICTIONAL NON-FILED COMPLAINTS
Motion to deny appeals except for 08-3978
Working in session during lunch. Board Members sat reviewing cases.

06-1133 Second review of this very old file says no violation occurred. It was completely re-reviewed. The original DPRC did not feel that the reviewers did a complete job. The files were lost when they switched over to computer files and recreated the file. Voted to Dismiss the case

Item # 4 ENFORCEMENT REPORT
April numbers. Expect to have as many investigations as in 2007, which was a watermark year. Difficult to get cases through the process. There are currently 1,600 active investigations. Staff members Rui Bernardo and Kim Ferron are working on getting assignments for consultants done. They do not have enough panelists to review files. Lots of the invitations they sent out did not come back. Robinson made an appeal to the Board to think about asking people they know to become Board panelist.

They are looking for oncology, pain management and neurosurgery especially.
Dr. Alan Moore, the Medical Director, spoke about the tutorial. All of standard of care complaints for 2008 were reviewed. Dr. Moore will be recruiting panelist with the offer of CME for reviewing cases. He plans to visit campuses to recruit people. This will start in July. He will also be speaking with specialty societies in Texas. Some are requiring members to serve on the Expert Reviewer panel of the TMB

There have been 532 ISC this Fiscal Year. Last year 532 total ISCs. Eleven additional staff will help, but they do not have any addition board members. Dr. Crocker Question: brought up about continuances. Wondered how to improve on cases getting rescheduled. The rules were made more stringent beginning after the Feb 2009. The numbers of continuances have dropped significantly. They did not have exact numbers. The rule is after first 5 days, they loose their easy access to a continuance. 344 ISC held in same time period for 2008. Summer will be even busier. Biggest filing months for SOAH is June, July, August. Projecting a record increase.

Dr. McNeese Question on Experts. Could Dr. Moore send an email to Board Members indicating who they need. Board members can reply with suggestions

Item # 5 PRIVATE LIST OF WAIVERS
People subject who are in compliance and want to waive their appearance before the Board to save time for ISC’s
Five Expert Panelists are being recommended to be added to the List. Board moved to approve the entire list. Motion carried.

Item #7
QA rejected files
Dr. Williford QA Standard of Care 08-2026. Concern on panel report. He feels it is completely out of line and totally inappropriate. The report was quoting individuals three different times, which Board members do not need to be reading. He wonders what the cost was for this. The report is too big and it goes on and on. Is there a way to have a more concise report. The report is 35 pages long. Dr. Moore offered that he is working on a tutorial for panelist in order to prevent situations like this. The panelists have not had the benefit of learning what the TMB wants. Motioned to go back for another review

09-1479 Lady who fell cut her leg. Expert panel did not find SOC on initial visit tetanus booster was not given. When represented, the tetanus was given. Given CME and fine for untimely administration of tetanus. Dr. Crawford felt this was a little overboard. This case was being presented for dismissal.

08-3799 16 malpractice suites. Respondent’s behavior has become increasingly unstable, seen walking around his office wielding a baseball bat. Throwing phones, foul language. Option to send to ISC to address Unprofessional Conduct issues. Dr. Williford Question: How do we globally help this guy, because obviously, something is going on. 8 of the malpractice have been investigated and dismissed by the TMB. Currently, 2002, 2003 investigations are still open. They can request he appear at an ISC, put him under an order and require a psych evaluation. Dr. McNeese Question: Is there enough here to bring him to ISC and require the evaluation?

FAST TRACT CASES

09-4350 Death certificate case received on 14th signed on 15th. The complainant says the doctor is not on the electronic system, but the certificate was signed in time. There is no problem. Motion to dismiss with custom letter to get on the electronic system.

09-3991 Admits they did not release the records on time. Complained the fine was too high. Go ahead with order to pay fine with letter saying fees are set by TMB
09-3691 Medical records case. Physician did not release the paper records within the time frame, even though they release all the electronic records. The doctor sent a response letter saying that after receiving a letter from the Board, they sent the paper records

90-3418 Medical Records case. The physician had done the exam and sent the records back to the entity that requested the evaluation. The physician has filed a cease and desist harassment notice to the patient stating that they do not have any records, as the records are with their PCP. Dr. Zeitler moved to dismissed.

09-3306 Respondent did sign the death certificate on time, but filled it out wrong twice. Complainant filed that if the physician would get on the electronic system, these types of errors would not be made. Moved to send a custom letter.

08-9550 Advertising case. Saying Board Certified, but it eventually expired and she was getting recertified and had her webmaster removed the designation the next day. Moved to dismiss

09-2723 Person requesting documents – it was unclear if this person was able to request records. There is no proof either way. Moved to get more information
09-1203 Medical records. They said united health care said not to release the records and physician said they didn’t want to release a second set of records because they could be accused of double billing. Moved to close with letter explaining the records release rules.

09-4287 Death Certificate. Compliant about physician was not on the electronic system. Moved to send custom letter.

09-3917 Advertising violation. Physician had more experience with an eye procedure than any other doctor in Houston. Should have said, I was the first in Houston to do this procedure. Physician responded that he had removed the offending statement and the complainant was satisfied. Move to contact respondent and review at future date. Passed.

09-3501 Death certificate case Doctor refusing to get on electronic system. Moved to send custom letter.
The electronic system is difficult to use, hence the reticence to begin using it

09-3693 death certificate case. Moved to go back to gather more info

09-3246 Med records case. Call for records, mailed them, but did not get proof of delivery. There is no proof from the other side that they actually requested the records. Dr. McNeese moved to dismiss as there is no proof of the request.

09-1396 treatment of cardiac arrhythmia in 20 year old patient. Dr. Crawford Motion to recommend CME in a custom letter

QA Rejected SOC 09-3490 Mr. Baucom: Doctor accused of practicing without a license and writing prescriptions. For pain medication, but no evidence of this. License suspended since 2001. Not practicing, but they are a physician and may appear as an expert witness. The Complainant did not have any evidence except a business card. Motion to dismiss for lack of evidence. Meeting adjourned at 3:24 PM

Licensure Meeting:
HB 3674 goes into effect as soon a Governor signs the bill or 20 have passed, which ever first. This means that Board certified doctors from unapproved schools can get licensed without completing Form Z. Also it does away with the requirement on showing proof that one can be licensed in the nation in which one graduates medical school from. If the applicant is not Board certified, then they still must show their school is substantially equivalent.

Texas Medical Board Meeting
FRIDAY, May 29, 2009
Executive Director Report
After June 2nd the Board will send out an email to reflect what actually happened with Bills affecting the Board

Regarding rule to allow States to share information, but guard the confidentiality. TMB does not release disciplinary files because each state has their own laws and the TMB does not have assurance that other states will follow Texas guidelines. Adopted a resolution to develop a Federal Law.

Senator Shapely report through Robinson
Regarding underserved areas in El Paso. This area needs 640 additional licensees to provide for the surge in population in the next few years. Shapely has asked for the TMB’s help in serving these areas. The Board is working on holding seminars in this area and producing a pamphlet on all the ways the TMB can license. They cannot recruit, but can make applicants aware of this need. This perceived need is due to military base closures and adequate numbers of medical providers will not be moving to the area from the closing military bases. Senator Shapely is reaching out to many different institutions.

They are moving forward with installing security cameras in the ISC room. The panel table will be at the back of the room near the doors.

Dr. Moore reporting that Robinson did a fantastic job at the Texas Legislature. She and Jane had a great game plan. He was reviewing the cases , working toward being prepared for the DPRC Meeting. It confirms that the dual leadership model definitely works during legislative sessions. The litigation attorneys are consulting him on a regular basis and lots of Q & A is going on. The tutorial to send to the expert panelists was delayed in its targeted launch date of May and will probably go out in July. He attended the TMA meeting.

TMA Resolutions passed: Utilization Review , Rule 190.8 already includes this. Dr. Moore indicated to the TMB that this was already in the rules. Investigation of Physician in training. Suggested change that the initial contact be made with the residency program director. They want to simplify the current process. Statutes prevent the TMB from discussing this with the Residency Program Director. Referred this resolution back. For Administrative violations, may invoke a statute of limitations of 7 years unless a minor, keeping in mind rule 165.1. Resolution about medical experts that come from other states to testify needing a temporary license. They amended this based on Dr. Moore’s suggestion that the TMB does not consider testifying as the practice of medicine.

NOMINATIONS AND ELECTION OF OFFICERS
Nominations from the floor: Benevides nominates: Dr. Melinda McMichaels for Vice President. First he did a tribute to Dr. Price and the fine job he did. Excellent leader who is calm, cool, collected, clear speaking. The board looks after 61,000 licensees.

Dr. Michael Arambula nominates Mr. Turner. He Feels Mr. Turner is in a prime spot from his “watchtower” in Houston.

Dr. McMichaels: Although she was not actively seeking the position of VP, after meeting with legislators this spring, she feels the VP needs to be a physician. Dr. Moore is proving to be an asset to the Board.

Mr. Turner: Been on the board 6 years on Executive Committee for 2. He was the only member of the Executive Committee who sat in on the decision to divide the Executive Director position between a Medical Director and an Executive Director. He is actively seeking the position of VP and what he has done proves he has the leadership needed for this role. He actively launched a solicitation of funds to set up the LIST system. He sought the funds directly. He was instrumental in Pill Mill Legislation and worked with lobbyists for the TMA. He stood up to Senator Patrick and Dr. Hotsey in Houston. He has not missed any of the meetings except for his wedding.

By secret ballot, Dr. McMichael is voted the new VP for the Board.

Agenda Item # 6 Open Forum for Public Comment to Address the Board. Robinson stated that they would review if they would continue to allow Open forum. The Board agreed to continue.

Dr. Zeitler did a presentation to Ms. Ragette, who was present, for her years of service on the Board.

Item # Specialty Board Certification in Advertising
The board has outlined which certifications they will accept: ABMS ABOS, Maxifacial groups are primarily the groups recognized by the Board to be allowed in advertising. American Board of Pain Intervention wanted formal recognition from this Board to allow their members to use it in advertising. They presented material why they should get recognition. The entirety of membership is 130 members from 37 states. Robinson says if you approve this group, many other groups will ask for recognition. There is no precedent for this, except for the Maxifacial. McMichael: There are many of these Boards that only require signing up to join and become a diplomat. Some do have training and testing requirements.

Agenda Item # 10 NON PUBLIC REHABILITATION ORDERS Motion passes
Agenda Item # 11 AGREED ORDERS

Pulled Orders:

In 1992 Order for misdiagnosis of a patient. Current order for non therapeutic prescribing. Board members wanted a chart monitor for 2 years.

Dr. Charles Oswald: objection and asked for dismissal. Dr. Arambula distonic reaction to Haldol, tightening of the muscles is rare and even rarer in younger patients. The patient was 59 and it is unusual for this allergic reaction to occur. Mr. Timothy Webb: During the ISC, the physician was rather nonchalant and that was disturbing to him. The expert panels did not attribute the death to the administration of the Haldol and the patient was recovering from the effects. Motion by Dr. Crocker to amend to drop the public reprimand and change the 20 hours of CME on risk management to 10 on pharmacology. Motion passed.

Dr. Oswald: Neonatologist misdiagnosis. Wants to reduce the 30 hours of CME in one year to 2 years, as it would be physically impossible to do this in one year. Passed

Ms. Attebury: Psychiatrist who had sex with patient and had a relationship with her. Long term relationship and provided drugs as well. This was co-mission. Ms. Attebury: Question about where a public reprimand is best used. Ms. Paulette Southard: Did not like the doctor one bit. It is a felony for mental health providers to have sex with a patient, according to Dr. Arambula. Ms. Southard read a nonchalant letter from the respondent where he admits to having mutual oral sex, but there was “no coddling or intimacy used as a therapeutic technique. Respondent was a 79 year old male with degrees in psychiatry and law. The physician signed a prescription for meds to be administered by a prescription assist program on the date the relationship began, which technically re-establishes the professional relationship. Motion to amend for a public reprimand.

Ms. Attebury: Patient expired from myocardial infarction when the EKG was normal. The non action did not seem intended and feels it does not warrant a public reprimand. Motion to remove the public reprimand.

Dr. Arambula: Question on Louisiana Board suspending physician’s license. The case involved an impaired physician. Can this physician still practice here? Texas has him under order if he comes back to Texas to practice. After discussion Order approved as written.

Dr. Arambula: sexual relationship with patient after prescribing opiates. Prior to this relationship, respondent engaged in similar relationships with other patients. Order required female chaperone with female patients. Ms. Southard: Motion to limit practice to male patients only. Mr. Turner: concerned modifying Order will allow this physician to practice while the case awaits the SOAH process.
Went into Executive Session to discuss details. Passed motion to limit practice to male patients.

Passed all non -pulled orders
190.8 Comment from Debora Smithers, nurse. Her concern is it will be the nurses who prescribe and if there is contra- indications, they would not be aware. Motion to approve.

Item # 25 telemedicine rules. Public comment – concerned that they are too restrictive. Suggestion to withdraw the rule and get more input from stakeholders. Given the unknown status of the legislature, they would like to withdraw. Motion to withdraw for further clarification and review by an interim group. Motion passed.

CONSENT AGENDA
Motion to approve Items :
Item #1 A Board Minutes for April 3, 2009 and
Item # 1 C Disciplinary Panel minutes regarding Dr. Gadasali. Motion passed
They skipped over item B: Consideration and approval of march 24, 2009 disciplinary Panel Minutes regarding Shirley Pigott, M.D., Temporary Suspension with Notice
Item # 2
Finance Committee: Robinson suggested change the increase to license fees to $64 bi-annually . This change came from information from the legislature on the need for the Board to raise additional income. Motion carried
Executive Committee: discussion of interim general counsel, discussion of the election of officers. Motion to approve. Passes.
Disciplinary Process Review Committee: 11 appeals denied, 1 being referred to nursing board. 15 appeals denied on # 2. 5 new Expert Panelists were approved. 355 case files closed 2 continued, 11 recommended for closure. 2 referred to ISC . Minutes accepted (This was all I could record, as Dr. McMichael was rattling the stats off quite rapidly.
Licensure: 3 granted unrestricted ,2 ineligible, 5 deferred, 1 granted TX public health license. 3 surgical asst, 1 request for rehearing. Rules be published with changes noted. Minutes approved. Meeting adjourned 12:09 pm

Two Appointments to PA Board

2009-05-21T12:17:00.000-05:00

Gov. Rick Perry has appointed Ron Bryce of Red Oak and Edward W. Zwanziger of Eustace to the Texas Physician Assistant Board for terms to expire Feb. 1, 2015. The board establishes and maintains standards of excellence used to regulate physician assistants and ensure quality health care for Texans.

Dr. Ron Bryce is the site medical director for EmCare Inc., and medical director for Family Medical Care P.A. He is a member of the Christian Medical Association and a diplomat of the American Board of Family Medicine. He is also director of Feed A Child, Lake House Church, GeoBound and Boanerges Marketing. Bryce received a bachelor’s degree and a medical degree from Oral Roberts University. He is being reappointed.

Edward Zwanziger is a physician assistant at Primary Care Associates. He is a member of the American and Texas academies of Physician Assistants, and a life member of the Veteran’s Caucus of the American Academy of Physician Assistants and Texas Chapter of the American Heart Association Board of Directors. He is also an honorary lifetime member and former membership chair of the Louisiana Academy of Physician Assistants. Zwanziger served in the U.S. Air Force, and received a bachelor’s degree from the University of Nebraska and an associate degree in nursing from Miami Dade Community College. He replaces Pamela Welch of Mount Vernon.

Three New TMB Members, Four Re-Appointments

2009-04-17T11:42:00.002-05:00

Today, Gov. Rick Perry appointed seven members to the Texas Medical Board for terms to expire Apr. 13, 2015. The board protects and enhances the public’s health, safety and welfare by establishing and maintaining standards of excellence used in regulating the practice of medicine and ensuring quality health care for the citizens of Texas.

David Baucom of Sulphur Springs is president of Baucom Insurance Services Inc. He is a member of the Independent Insurance Agents of Texas, founding director of First American Mortgage Company, and a director of First American Bank. He is also a past member of the Sulphur Springs City Council, past mayor of Sulphur Springs, past president of the Sulphur River Basin Authority, and past member of the Texas Medical Board District Review Committee. Baucom served in the U.S. Army National Guard, and received a bachelor’s degree from Baylor University. He is being reappointed.

Patrick J. Crocker of Austin is chief of emergency medicine for emergency service partners in the Emergency Department of Dell Children’s Hospital, and an assistant clinical professor of emergency medicine for the University of Texas Medical Branch. He is a member of the SETON Board of Trustees and Take Heart Austin Steering Committee, and is a fellow of the American College of Emergency Physicians. He is also a member of the Travis County Medical Society and Texas Medical Association, and chair of the Austin/Travis County EMS Quality Assurance Board. Crocker served in the U.S. Army, and received a bachelor’s degree and master’s degree in nutrition from the University of California at Berkley, and a doctorate of osteopathy from the University of Health Sciences College of Osteopathic Medicine and Surgery. He replaces Larry Price of Belton.

John D. Ellis Jr. of Houston is chairman of John Ellis and Associates. He is a past foreign trial observer for the Federal Republic of Germany and consul general for the Republic of Malta. He is a life fellow of the American, Texas and Houston Bar associations, and a member of the American Bar Association House of Delegates and Houston Bar Association Board of Directors. He is also a member of the University of Texas Health Science Center Houston Development Council and Dean's Advisory Committee, and the Houston Livestock Show and Rodeo Board of Directors, where he is also life time vice president. Ellis served in the U.S. Army and in the Judge Advocate General's Corps, and graduated from The Citadel as a Distinguished Military Graduate and received a law degree from Southern Methodist University and a master’s degree in forensic science and from George Washington University. He replaces Annette Raggette of Houston.

Manuel G. Guajardo of Brownsville is a physician in private practice. He is a fellow of the American College of Obstetrics and Gynecology, and American Fertility Association, and a member of the Texas Medical Association. He is also a member of the Valley Zoological Society Board of Directors and the University of Texas at Brownsville/Texas Southmost College Foundation Board of Directors. He also serves as president and chairman of the Brownsville Doctors Hospital Board of Directors. Guajardo received a bachelor’s degree from the University of Texas at San Antonio and a medical degree from the University of Texas Health Science Center. He is being reappointed.

Allan N. Shulkin of Dallas is a pulmonary and critical care specialist in private practice. He is a fellow of the American College of Physicians, and a member of the American Thoracic Society, Dallas County Medical Society and Texas Medical Association. He is also a past member of the Dallas County Hospital District Board of Managers, and a member of the Jewish Federation of Greater Dallas Community Advisory Council and American Israel Public Affairs Committee Executive Board. Shulkin received a bachelor’s degree from the University of Texas at Austin and a medical degree from the University of Texas Medical School at San Antonio. He is being reappointed.

Wynne M. Snoots of Dallas is an orthopedic surgeon and medical director of the Baylor Sammons Bone Tumor Center at Baylor University Medical Center. He is a member of the American and Dallas County Medical associations, American Academy of Orthopedic Surgeons, and Texas Medical Foundation. He is also past president of the Texas Orthopedic Association. Snoots served in the U.S. Army and received two bachelor’s degrees from Texas A&M University and a medical degree from the University of Texas Southwestern Medical School. He replaces Amanullah Khan of Dallas.

Timothy J. Turner of Houston is principal of Tim Turner and Associates LLC. He is a member of the State Bar of Texas, and a past member of the American Association of Professional Landmen, Federation of State Medical Boards, Greater Southwest Houston Chamber of Commerce and Caring for Children Foundation. He is also chairman of the Texas Statewide Health Coordinating Council Health Information Technology Advisory Committee. Turner received a bachelor’s degree from the University of Texas at Austin. He is being reappointed.

My Take: Dr. Price, Ms. Raggette and Dr. Khan will all be missed as intelligent and hard working Board members. I did not always agree with them, but I did respect them and I always thought them to fair. As defense counsel, that is all that I want from a Board member. Thank you for your service.

HB 3816 Heard Yesterday

2009-04-15T10:20:00.002-05:00

HB 3816 was heard yesterday by the Public Health Committee in the Texas House. This bill can be reviewed at http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=81R&Bill=HB3816.

The bill does a number of things that makes complaints more difficult, gives a physician right of access to information, places a 4 year statute of limitations on standard of care complaints, creates a watch-dog committee over the Board, required a physician to the Executive Director and many, many other things.

The Austin-American Statesman ran a story on the hearings. http://www.statesman.com/news/content/region/legislature/stories/04/15/0415medboard.html

HB 998 Needs a Push

2009-04-09T10:24:00.001-05:00

HB 998, which would give Administrative Law Judges final decision-making authority in contested disciplinary proceedings, has yet to be voted out of committee. We need to give the committee a push.

Please contact the members of the committee as well as your own state representative and senator and tell them to vote HB 998 out of committee and to the Calendar’s Committee. Judiciary & Civil Jurisprudence Committee
House Judiciary & Civil Jurisprudence Committee

Note -- To email members using their website email form, go to: www.house.state.tx.us/members
Committee Chair:
Todd Hunter (R) Corpus Christi; District 32
(Office) E2.808 (ph) 512.463.0672 (fax)512.463.2101
Committee Vice Chair:
Bryan Hughes (R) Mineola; District 5
(Office) E1.508 (ph) 512.463.0271 (fax)512.463.1515
Roberto Alonzo (D) Dallas; District 104
(Office) 4N.6 (ph) 512.463.0408 (fax)512.463.1817
Dan Branch (R) Dallas; District 108
(Office) E2.322 (ph) 512.463.0367 (fax)512.322.9935
Will Hartnett (R) Dallas; District 114
(Office) 1N.8 (ph) 512.463.0576 (fax)512.463.7827
Jim Jackson (R) Carrollton; District 115
(Office) E1.402 (ph) 512.463.0468 (fax)512.463.1044
David Liebowitz (D) San Antonio; District 117
(Office) E2.410 (ph) 512.463.0269 (fax)512.463.0555
Tryon Lewis (R) Odessa; District 81
(Office) E2.812 (ph) 512.463.0546 (fax)512.463.8067
Jerry Madden (R) Richardson; District 67
(Office) GW.11 (ph) 512.463.0544 (fax)512.463.9974
Armando Martinez (D) Weslaco; District 39
(Office) E2.312 (ph) 512.463.0530 (fax)512.463.0849
Beverly Woolley (R) Houston; District 136
(Office) GS.2 (ph) 512.463.0696 (fax)512.463.9333

Committee Clerk:
Jennifer Welch
(Office) E2.120 (ph) 512.463.0790 (fax)512.463.0174

April Texas Medical Board Meeting

2009-04-09T10:18:00.000-05:00

Texas Medical Board Thursday, April 2, 2009
TELEMEDINCE COMMITTEE
The Committee heard an interesting study on of Quick Med.com performed at the University of Utah. Dr. Munger conducted the study after he heard the presentation from QuickMed while he was head of the Pharmacy Board in Utah. In the study he compared the online assessment to the brick & mortar clinic care in how care for erectile dysfunction is handled. What he found was the on-line care was better in findings possible adverse interaction.
FINANCE COMMITTEE @ 9:48
For the fiscal year (September 1st to August 31st) the Board has spent 3.2 million dollars or 48.6% of there annual budget.
Regarding the 2.5% cuts they were asked to make, they do not know if the money will be taken or the funds will b e left in the budget. May be waiting to see how the stimulus money will be used.
DISCIPLINARY PROCESS REVIEW COMMITTEE 10:12 AM. EXECUTIVE SESSION @ 10:14 Reconvene at 2:02
According to February’s numbers, the Board is still experiencing in tremendous growth in the number of complaints and investigations. Half way through year and already the Board surpassed the number of investigations from last year. Ms. Robinson estimates the Board will open more than 2800 investigations. However, the Board has completed about 1/3 the number of investigations as compared to last year. Ms. Robinson states the Board does not have enough investigators and panelists to close them out. The Board has conducted 376 ISC this year, at half way through the year; whereas 482 ISC’s were done in 2007.
Ms. Robinson reports the Board has asked for money from the legislature to hire a physician to do some initial front end analysis. This would help to weed out complaints that need to be dismissed. They cannot control the number of complaints coming in. The temporary suspension system still works and the fast track is available.
Joe Tabarraci reported to the committee about Rule 22 T.A.C. 165.3 regarding patient access to diagnostic imaging studies from physician’s office. This rule does not address non-static images. The amount charged for second films was in question. This is updated non-static versus static records. The maximum charge can be $8. This came about from an inquiry about charging $50 for a CD of an angiogram.
The Board can only regulate the physician charges; they cannot regulate any charges made by hospitals. Motion made to re-write the rule.
Review of Probationer’s Appearances. People who are in 100% compliance it is recommend probation appearance be waived for both public and non-public order.

FRIDAY, APRIL 3, 2009 TM BOARD MEETING
Executive Director Report: Risk Management – Ms. Robinson will approve courses that help improve doctor’s practice. She will not approve course that cover “What do I do if I am sued?”
Mr. Williford wants sheet of commonly approved and suggested CME at the ISC. Mary has Master list. Once she approves a course it goes on the list and the list will get updated. The list will be put on micro-fiche for Board members.
CME must have a post test to be approved.
LEGISLATIVE UPDATE – Robinson
101 bills are being tracked. This legislative year 18-26% more bills filed. The Appropriations did pass out of Senate. The Board did get everything they asked for. They Board is still determining if they will be required to off-set that cost by generating additional income. The House bill did not adopt fees for new staff. If they need to raise fees, they will only be raised a maximum of $25 but it will probably be more like $10.
A couple of the bills will add responsibility to the Board these encompass anesthesiology assistants and genetic counselors.
PHR Bill working with TMA. This is going to committee next week. It is fiscally neutral for the Board. The participant will pay.
The Bill for Pain Management clinic registration will likely be modified. The Board will have the authority to inspect these if they suspect they are a “pill mill.” They may create a task force, especially for the Houston area. There will be an increase in chart monitoring and number of hours of oversight for the overseeing physician. Senator Williams is the sponsor.
SOAH bill went reasonably well. They were able to give them the impact on the Board from the legislation.
Bills coming up
Removing the requirement for eligibility to practice in the country of Med School graduation and don’t have to prove substantial equivalent if they are Board Certified. April 14th the bill is up in Committee. This bill is supported by the TMB stake holders.
Watching the AAPS bill which asks for change to complainants not be confidential and the expert identify revealed. Ms. Robinson felt that this would make it impossible to retain expert reviewers. If bill passed, they would have to fire her, as it requires the Ex Director to be a physician. April 14th is the hearing.
Many bills on prescriptive authority. May increase the number of people doctors can delegate to, the number of miles away and amount of time to review charts.
Methodist Hospital backing bill on Faculty license – passed out of senate
Shapley bill states not does not have to fulfill exam requirements if you go to underserved area.
Hartnett Bill affects physician profile data. The material is removed after period of time 3 to 5 years. Any complaint filed at SOAH if dismissed that complaint will no longer be on profile after the time period expires.
Medical Director Security update. Violent individuals that may pose risk to ISC members will be evaluated. Put together with Dr. Arambula’s input. (i.e. Respondents with head injuries, substance abuse, etc.) Trigger events listed that may precipitate something. Policy: once individual is identified will notify panel members of potential problems and why this may occur. If they want security measures after receiving the assessment, they can request it. Suggestion to leave handbags or briefcases outside the ISC room. There was an individual who showed up for ISC and didn’t get what he wanted and had an outburst. Overall assessment to determine threats. Direction to staff to continue process.
Med Director report ETG and ETS testing process. Use has increased across country. Number of articles have been published and they have been able to learn more. ETS companion can be used in conjunction to identify alcohol consumption. ETS testing may be added to test panels. No additional cost. Reviewed Dec Jan Feb, 2009 results and positive test results. There were 3329 tests and 0.7% were positive. 200 people per month tested. 9 individuals that had at least one positive result. Bacteria can produce ETG in the urine after it is collected. Individuals with Geaubere syndrome don’t make ETG. They are considering having a screen for this. ETG is detectible from 1-7 days after ingested. ETS cannot be produced by bacteria in the urine. Looking at everyone who had a positive result (9 individuals). Anticipating ETG will be eliminated in the future. McMichael would like a sheet in the ISC room to refer to. Considering getting a billirubin on everyone which will indicate Geaubere’s. Would only have to be done once or twice. He will report in the May meeting on having a targeted approach to assigning the people to handle the cases who have the experience in certain fields.
STAFF Introductions Rick Romoff is the new Manager of Compliance.
Licensure is now full. Only 2 FTE open. Administrative Asst for Rui and one investigator.
Current litigation AAPS lawsuit – no action. Good news on Rodriquez-Aguiro case. Appeal the decision and heard by district judge and he has affirmed the decision of the board.
2 lawsuits regarding open records requests which included Compliance Files requested from the Attorney General’s office.
# 6 Non-Public Rehabilitation Orders
Approved all but 2 of these. McMichael wants change to Finding of Facts. Order states that Respondent may have impairment to cognitive ability. Respondent fell from a hot air balloon while in Med School. Dr. Arambula heard the case. The Board is getting psych reports on a regular basis. The language is standard admission of the Respondent to having a problem rather than a concern of the Board.
McMichael wants reminder on who is able to have a confidential order. When previously on Order and then in trouble again and getting another confidential order. The prior Order was actually a Public one – a public reprimand for a DWI that was unreported. So they are eligible for a Non-public Order, as the Respondent self-reported.
#7 Approval of Agreed Board Order
Remaining 43 Orders were approved
Pulled from the group for discussion:
Williford : Med Director of Colonic Hydrotherapy clinic for perforated colon. Please be aware of this as a real problem. Order passes
Attebury: Order was written in a way that the patient could be identified from the wording in the Order. Motion to remove language regarding patient’s 5 children.
McMichael: Physician who didn’t have the Board notice posted in the office. Why was this not a fast track case? Because the physician’s office kept referring the patient to the county medical society rather than the TMB
McMichael: In the Military and had court marshal. 164.051 (a)( 9) violation of the Act to have action taken by another Board or the Military. Order passes. Leaving language in about adultery under the UCMJ will make it clearer to the public what the underlying crime was, as the Order was for obstructing justice.
McNease : Found in their car and spouse did not know what they were doing. Change language to “altered mental status” and that Methadone was prescribed in addition to other drugs Order approved
Attebury: Concerned about the repetition in the behavior. Wants to add a Chart Monitor. Shulkin was on the panel and in favor of four monitoring cycles completed and after two clean reports the Order terminates with completion of CME. Order passes
#9 Approval of Modification Request/ Termination Request Orders
One pulled by Benevides: Issues with this case falling through the cracks. This individual was last seen at the Board in March 2008. Has lots of Standard of Care issues. Respondent appeared before the Board many times and connected with the same type of issues. Wondering if they have a benign group of attorneys at the Board . (WENT INTO EXECUTIVE SESSION TO DISCUSS)
RECONVENED
Determination: File at SOAH and ask for revocation in order to protect the public based on long history with the Board and failure to comply with current order. Motion to revoke passes
Mediated Settlement Agreed Order Moved to approve all
Approval of Termination of Suspension Orders Moved to approve the one pending
#Suspension by Operation of Law none
Temporary Suspensions: info item Those 2 people have been suspended Dr. Ramahi and Dr. Paiget
McFarland suspended due to violation of Order
Public comments none
# 20 regarding Rule Change by Department of Health regarding prescribing of controlled substances/dangerous drugs for the partners of patients that have been diagnosed with STI’s
Jennifer Kaufman presented an emergency rule. The rule will be in effect for six months. Will be posted to public comment. McMichael: Concern that they are leaving things open to abuse of avoiding real treatment Want language like “episodic treatment or something like that. Must still meet the standard of care with this rule change. This rule change dose not remove their adherence to standard of care. Approved as written. And Approve to publication
# 21 Rules published for Public Comment
No public comments
Chapter 166.2 CME credit motion to approve
Chapter 183 Acupuncture Allowing more exam attempts. JP exam language. Approved as written
Chapter 189 Limitations on Physician Probation’s Practice the adoption of this was delayed. TMA approved
Can a physician supervise a PA while under an Order. Mr. Simpson is working on language to make it clearer. It will be presented at a later time. . What is the distinction between restrictions and terms and conditions. Restriction is a provision that restricts a physician authority to practice medicine . There are guidelines by the NPDB where the TMB must report. They only want to know if the physician cannot practice medicine in the same way as an unrestricted practitioner. Attempting to make clarification for supervision of PA’s only. Motion to approve language change as written. Approved.
COMMITTEE REPORTS
a. DPRC Ten experts added to Expert Panel Approved
b. Finance Doing well on budget Approved
c. Licensure : 3 applicants be granted restricted. 1 ineligible 1 deferred for mini residency 3 apps granted license for permanent as outlined. 8 Order proposed and accepted 565 applicants for permanent licensure 1 Accudetox TMB Rules 162.1 & 173.1 changes be approved
Average time through the licensure process is down to 30 days on turn around, which is remarkable. Staff is to be congratulated on their work. Approved
d. Telemedicine 174.1 – 174.6 changes to rules and PCMI Pharmacy. The presentation came from recommendation of the Pharmacy Board.
ADJOURNED at 12:17 PM

Perry Appoints Three to Chiropractic Board.

2009-03-26T18:07:00.001-05:00

Gov. Rick Perry has appointed three members to the Texas Board of Chiropractic Examiners for terms to expire Feb. 1, 2015.

Larry R. Montgomery of Belton is president and clinic director of Montgomery Chiropractic. He is a member of the Texas Chiropractic Association, American Academy of Pain Management and American Chiropractic Association Council on Orthopedics. He is a past member of the Belton Christian Youth Advisory Board and Belton Rotary Club, and is a member of the Belton Area Chamber of Commerce Board of Directors, Belton Planning and Zoning Commission and Belton Lions Club. Montgomery attended Central Texas College and San Jacinto College, and received a degree from the Texas Chiropractic College. He replaces David Sime of El Paso.

Patrick J. Thomas of Corpus Christi is a chiropractor in private practice. He is founder of the Chiropractic Alliance of Corpus Christi and co-founder of the Chiropractic Alliance of Texas, Texas Alternative Health Network and Spinal Disease Management Network of Texas. Thomas attended Texas State University and received a degree in chiropractic from Texas Chiropractic College. He replaces Scott Isdale of Belton.

Tom O. Turner of San Antonio is founder and CEO of Pisces Capital Group and family owner of TETCO Inc. He is a member of the San Antonio Public Library Foundation and San Antonio Academy Alumni Council, and is a past board member of the San Antonio Rape Crisis Center and United Way of Metropolitan Chicago. Turner received two bachelor’s degrees from Washington and Lee University. He replaces Marcia Daughtrey of Tyler.

Committee to Hear HB 998. Your Actions is Required!

2009-03-26T10:57:00.003-05:00

Hearing Location and Time: HB 998 (Rep. Fred Brown/Rep. Eddie Lucio, III) is set for a hearing before the House Judiciary and Civil Jurisprudence Committee in Room E2.010 on Monday, March 30th. The committee meeting starts at 2:00 p.m. and will likely continue well into the evening. HB 998 is listed 8th on the agenda, but the committee chair has the discretion to re-order the agenda so the bill could be laid out anytime after 2:00 p.m. In all probability it will be considered in the late afternoon or early evening.

Bill/Committee Substitute: HB 998 will make the Administrative Law Judge (ALJ) the final decision-maker in contested occupational licensing cases at the State Office of Administrative Hearings (SOAH). A committee substitute for the bill is expected to narrow the application of this legislation to just health care provider licensing for agencies that fall under the Health Professions Council (i.e., Texas Medical Board, Texas Board of Nursing, Texas Physician Assistant Board, Texas State Board of Acupuncture Examiners, etc.) The committee substitute is also expected to crystallize the effective date of the new law so it will be any decision rendered by a SOAH ALJ on September 1st and thereafter.

Testimony and Registering Support: The legislation is expected to have full public support and no detractors from the general community; however, some agency personnel may testify as “resource” witnesses. You can make a difference if you will stop by the committee hearing room the afternoon of the hearing and fill out a form registering your support. From parking to filling out and submitting the form and returning to your car, it will probably take no more than 20 minutes. It will be 20 minutes well-spent. Forms in support are noted for the record and can be critical in convincing the committee to pass the legislation out for consideration on the House floor.

Contacting Committee Members and Other Legislators: Whether you can show support at the committee or not, you can also help if you contact your own senator or representative to voice your support. You can also contact members of the House Judiciary & Civil Jurisprudence Committee. Express your support and ask that HB 998 be passed out of committee as soon as possible. See contact information below.

Bill Benefits and Fiscal Note: The Legislative Budget Board has indicated that there will be no adverse financial impact from passage and the legislation can be implemented with existing resources. The new law will have a number of positive effects. Among the positive effects are:
will eliminate extra delay in the current system (no longer waiting for boards to meet);
will cut costs for both the state and licensees (personnel, paperwork, time);
will promote good faith negotiations resulting in more agreed resolutions sooner;
will allow neutral 3rd party expert ALJs to take a burden off of agency board members;
will renew faith in the system by avoiding the extremes of either a “good ‘ol boy system” or bullying by a “punitive, and heavy-handed agency” while reducing the adverse impact of professional bias, political pressure, and media influences.

House Judiciary & Civil Jurisprudence Committee

Note -- To email members using their website email form, go to: www.house.state.tx.us/members
Committee Chair:
Todd Hunter (R) Corpus Christi; District 32
(Office) E2.808 (ph) 512.463.0672 (fax)512.463.2101
Committee Vice Chair:
Bryan Hughes (R) Mineola; District 5
(Office) E1.508 (ph) 512.463.0271 (fax)512.463.1515
Roberto Alonzo (D) Dallas; District 104
(Office) 4N.6 (ph) 512.463.0408 (fax)512.463.1817
Dan Branch (R) Dallas; District 108
(Office) E2.322 (ph) 512.463.0367 (fax)512.322.9935
Will Hartnett (R) Dallas; District 114
(Office) 1N.8 (ph) 512.463.0576 (fax)512.463.7827
Jim Jackson (R) Carrollton; District 115
(Office) E1.402 (ph) 512.463.0468 (fax)512.463.1044
David Liebowitz (D) San Antonio; District 117
(Office) E2.410 (ph) 512.463.0269 (fax)512.463.0555
Tryon Lewis (R) Odessa; District 81
(Office) E2.812 (ph) 512.463.0546 (fax)512.463.8067
Jerry Madden (R) Richardson; District 67
(Office) GW.11 (ph) 512.463.0544 (fax)512.463.9974
Armando Martinez (D) Weslaco; District 39
(Office) E2.312 (ph) 512.463.0530 (fax)512.463.0849
Beverly Woolley (R) Houston; District 136
(Office) GS.2 (ph) 512.463.0696 (fax)512.463.9333

Committee Clerk:
Jennifer Welch
(Office) E2.120 (ph) 512.463.0790 (fax)512.463.0174

Moving to EMRs?

2009-03-26T09:39:00.003-05:00

Yesterday, All Things Considered on National Public Radio did a good, insightful story on physicians and hospitals making the move to Electronic Medical Records (EMRs). The story confronted many issues that I have experienced with clients who make the move to EMRs. There are many challenges, pitfalls and costs experienced moving to EMRs. If you are considering the move or just interested, I would suggest you listen to the story and a subsequent interview.

http://www.npr.org/templates/story/story.php?storyId=102333325

Interview:
http://www.npr.org/templates/story/story.php?storyId=102360638

Support HB 998

2009-03-12T15:39:00.002-05:00

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.

On-Line Posting vs. Doctors

2009-03-10T08:17:00.004-05:00

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.

Perry Appoints Two Members to Acupuncture Board

2009-03-09T12:07:00.001-05:00

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.

Why Physician Ads Should be Pre-Approved.

2009-03-05T09:05:00.001-06:00

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.

Full Board Meeting: February 6, 2009

2009-02-19T23:00:00.000-06:00

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.

Notes From Disciplinary Process Review Committee 2/5/09

2009-02-12T09:22:00.000-06:00

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

2009-02-11T02:11:00.000-06:00

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.

Perry Names A New Board Member and New DRC Member

2009-01-26T15:51:00.000-06:00

Gov. Rick Perry has made two new appointments to the Texas Medical Board. The first is Scott Holliday, D.O. of University Park to the Texas Medical Board for a term to expire April 13, 2013. He replaces Dr. Roberta Kalafut.

Dr. Holliday is an anesthesiologist at Pinnacle Partners in Medicine and chairman of the Arlington Memorial Hospital Department of Anesthesiology. He is a member of the American Society of Anesthesiologists, Texas Osteopathic Medical Association, and Texas Medical Association. He is also an American Board of Anesthesiology Diplomate, and the Texas Society of Anesthesiologists District 2 State Delegate. Holliday received a bachelor’s degree from the University of Texas at Austin and a doctorate of osteopathic medicine from Kansas City University of Medicine and Bioscience. He completed his anesthesiology residency at the University of Texas Health Science Center at San Antonio.

John Guerra, D.O. was named to the Texas Medical Board District Four Review Committee for a term to expire Jan. 15, 2012. He replaces Bobby Howard.

Dr. Guerra is a board certified obstetrician/gynecologist, and a member of the American Osteopathic Association, Texas Osteopathic Medical Association, and American College of Osteopathic Obstetricians and Gynecologists. He is a member of St. Paul’s Catholic Church where he volunteers as a medical youth educator. Guerra received a bachelor’s degree from the University of Texas Pan American and a doctorate of osteopathy from the Texas College of Osteopathic Medicine.

December TMB Board Meeting

2009-01-22T11:59:00.000-06:00

TMB Executive Committee: 12/11/08

There was discussion on policies and procedures regarding individuals wanting to speak before the Board as there has been an increase the individuals wanting to address the Board. Ms. Robinson, the executive director, expressed a concern that if people are set on the Board’s agenda it may appear those people have been asked to appear and address the Board. Dr. Larry Price suggested a 30 minutes open forum, with a sign in sheet for those showing up the morning of. It was suggested that this time period go from 12:00 pm to 12:30pm. Those signing up to speak will provide a summary. This policy was approved.

Finance Committee: 12/11/08
Based on the report, there was approximately $100,000 left for the prior year’s budget. There may be some small outstanding receipts that need to pay from this reminder. Board staff estimated that in the first quarter of the fiscal year (which starts September 1st) the Board has spent 23% of its total budget.

Disciplinary Process Review Committee: 12/11/08
The Board heard four appeals of jurisdictional complaints, with one case re-opened. It also reviewed two non- jurisdictional complaints, with one opened to an investigation.
The Board discussed adopting a rule allowing doctors treating patients with STD’s to prescribe medication to their spouses and partners, as this is a public health issue. Some partners refuse to seek treatment due to lack of insurance and other reasons.

Dr. Melinda McMichael has query on limiting this to Gonorrhea and Chlamydia, as they do in other states. Ms. Robinson offers that the more specific you make the rule; the more often it will need to be changed. The Board motioned to adopt this new rule for publication.

Ms. Robinson thanked the Board members for their many nominations for expert panel suggestions, as the Board has experienced a shortage of experts willing to review cases. An appeal was sent out to all the specialty boards requesting nominations. Board member questioned whether it would help to advertise in a publication like Texas Medicine. Dr. Charles Oswalt mentioned that they needed to be careful of advertising in a widespread fashion as it could allow doctors with their own agenda to get their foot in the door and trying to change the way the board operates. Ms. Robinson will speak with Dr. Alan Moore, the Board’s Medical Director, regarding advertising for the panel positions. She is also considering having Dr. Moore begin an auditing program to review the panelist reports. Motion regarding approval of list of panel experts. One individual was removed from the list because his ex-wife was a lawyer on the board. Board approved the list with the one exception

Full Board Meeting: DECEMBER 12, 2008
Arrived 8:12 am
Directors Report: National Federation of State Medical Board -- Board wants to bring resolutions that would allow sharing of information between states. They specifically spoke about Applicants withdrawing applications and then applying in other state. The thinking is that if they withdraw, they may have something to hide and the state boards should be able to communicate this to each other.

Discussion on deleting the set of guidelines regarding anesthesiology assistants. This information will be removed. Board will continue to enforce Rule# 157 regarding physicians delegating to adequately trained assistants. This covers anesthesiologists as well.
Agenda item # 6 No order on this. A discovery motion was filed by Bob Simpson.
Consent Agenda – approved by motion.

Non Public Rehabilitation Orders. One Order was pulled and discussed. The Order was approved with deletion of a duplicate paragraph. Respondent changed specialty to ER medicine. Dr. Kalafut questioned whether this change was to avoid the stipulations of the Agreed Order. He passed the JP exam, and the Order is completed, but then could go back to the prior area of practice. Dr. Kalafut wanted to be sure that this individual would need to come before the Board in order to go back to previous area of practice. And if so, he would be under the original 5 year term of the Order.

8:30AM Senator Armbruster addresses the Board.

Various Proposed Orders were pulled, reviewed and discussed:

One Order was pulled by Paulette Southard regarding a doctor whose patient saw nurse practitioner 9 times from August to September. As x-ray done and found a tumor. Under the Order, the doctor can still able to supervise subordinates. Dr. McMichael proposes a fine for not adequately supervising the nurse practitioner and removing supervisory ability. It was discussed to place a three year restriction. It was proposed to issues a 3 years Order, removing supervisory delegation. Issue a $5,000 penalty and chart monitor. Also the Board directed staff to report the nurse practitioner to nursing board.

One Order was pulled by Julie Attebury as she did not see term for order. Respondent has a PIT and will have to present the order during the licensure process.

Ms. Southard pulled another Order. She questioned an Order regarding a physician who was already under an Order from 2005. She wanted to know why the new Order is only a one year term? Tim Turner explained that there was a specific reason for the one year term. The Order was approved with no changes.

Ms. Southard pulled another Order and expressed her opinion that there should be a fine. Only thing in the order is a requirement to comply with CME requirements. This was a from a fast track order. Sign this order and become compliant on CME immediately. The Order was approved without the change.

Ms. Southard asked about an Order in which a doctor prescribed medications to his son. She was not sure the whole story based on the Findings of Fact. She expressed a concern that when the Order is published in the newsletter, it brings up many questions because there is not enough detail. Rule 198 states -- standard of care – not allowed to prescribe to family member except in emergency and not to exceed 72 hours. It should clarify the board rule governs this controlled substance to a family member in amounts exceeding what is allowed. The drug in question was for ADHD and period was for one month. The Findings of Fact will delete that this was the doctor’s son and state it was an immediate family member and that the drug was on the controlled substance list. This doc was previously disciplined by the board. The first order was for CME violation. Several board members wanted to include the rule violated in the Findings of Fact. Ms. Robinson pointed out it was cited in Conclusions of Law.

Dr. Jose Benevides questioning the period of time for family prescriptions in the current Rule. Costs are same for 3 days of medications versus 30 days of medication. Ms. Robinson directed staff look into changing rule.

All Administrative Orders passed.

All Modification Requests passed.
All Nunc Pro Tunc Orders passed.

All Mediated Settlement Agreed Orders passed.

All Termination of Suspension Orders passed.

The Board reported that if they receive funding , the Board will continue with education outreach for physicians. The report sent to the Board members includes all notes from the town hall meetings. They did 13 meetings in 14 weeks and will not do that again as that was too many. The Board expressed that communication is important and continue to work at outreach. The format will change in the future. Plan to continue to pursue different communication efforts. It was expressed that the Board should take an active approach with informing the medical community.

In terms of outreach, it was express to make regular written submissions through TMA and county newsletters. It was opined as almost no one reads the disciplinary items on the Boards newsletter. Establishing better communication with different stakeholders and having information available at health fairs. Ms. Robinson asked Board Members to thoroughly read the report and give feedback. Dr. McNeese offered that TMA has blast email, which might be an avenue to use for educational items.

Dr. McMichael was named to be liaison during this legislative session.

479 physicians’ licensure applications were approved.

RULE CHANGES
Chapter 163.5 163.5 approved

Chapter 165 161.5 & 161.1 approved

Chapter 166 166.2 & 166.6 will be republished in final form with changes. Robert Simpson, general counsel, recommends passing. Republishing language of established rule approved.

169 – 169.7 approved

Chapt 173 approved

Chapt 178 Complaints approved

Chapt 179 approved

Chapt 180 approved

Chapt 182 Use of Experts – Public comments Elizabeth Naugle. Asked Board to consider changing statutes to include Experts from outside of Texas. She will bring the issue to Legislature. Approved

Chapt 187 approved

Chapt 190 disciplinary guidelines Board looks at AMA guidelines, suggested that they should publish this , but AMA asked them not to, as it can be used as a sword by patients.
Ms. Robinson suggested they approved everything but point # 8 and make adjustments to that point with input from the stakeholders. Approved 190.1 and 190.14.

Motion on 190.8 to direct staff to make amendments

Chapt 192

Changes delete 191.2 which talks about standards for anesthesia services, level one. Regarding certain drugs being available in every O.R. in pre-measured doses. The problem and feedback is they do not come in premeasured form. Dr. Kalafut suggests change “pre-measured doses” to “have on hand” . Specific stakeholder group came up with the initial set of guidelines, but now that it has been implemented, changes need to be made. Will be removing pre-measured. Approved

Shirley Pigott, MD asked to address the Board. Elizabeth Naugle asked to address the Board.

Sorry for Not Writing

2009-01-22T11:09:00.000-06:00

Ok. I have not written in a while. Sorry about that. I am going to try to get back into the habit of writing. My goal is no less than two posts per week. I should have information on the last Board meeting up soon.

President Resigns; New President Named

2008-12-12T09:41:00.000-06:00

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

2008-12-09T11:24:00.000-06:00

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

2008-12-08T11:52:00.001-06:00

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

2008-11-18T09:55:00.001-06:00

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

2008-11-11T08:41:00.000-06:00

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

2008-11-04T15:06:00.000-06:00

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?

2008-10-31T15:45:00.000-05:00

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

2008-10-15T08:37:00.000-05:00

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

2008-10-15T06:53:00.000-05:00

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?

2008-10-10T14:55:00.000-05:00

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

2008-09-29T11:12:00.000-05:00

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

2008-09-26T11:40:00.000-05:00

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

2008-09-17T09:33:00.000-05:00

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?

2008-09-16T10:05:00.000-05:00

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?

2008-09-11T09:39:00.000-05:00

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

2008-09-09T13:25:00.000-05:00

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

2008-09-05T09:26:00.000-05:00

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

2008-09-04T09:31:00.000-05:00

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

2008-09-03T11:40:00.000-05:00

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

2008-08-21T00:59:00.000-05:00

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”

2008-08-19T10:04:00.000-05:00

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

2008-08-18T10:59:00.000-05:00

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

2008-08-14T16:32:00.000-05:00

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

2008-08-14T13:17:00.000-05:00

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

2008-08-12T09:25:00.000-05:00

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!)

2008-08-11T09:43:00.000-05:00

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

2008-08-06T09:41:00.000-05:00

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

2008-08-05T15:45:00.000-05:00

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

2008-08-05T14:43:00.000-05:00

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

2008-08-04T14:20:00.000-05:00

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?

2008-08-01T08:55:00.000-05:00

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

2008-07-31T08:21:00.000-05:00

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

2008-07-10T18:19:00.000-05:00

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