Health License Defense

On June 23^rd, I attended the Board's Austin town meeting.  Present were three Board staff members, including Mari Robinson, the soon-to-be interim Executive Director of the Board.  There was one Board member, Dr. McMichel and one public District review member, Ms. Sharon Barnes. 

Essentially, Ms. Robinson asked if there were any questions or concerns and opened the floor.  There were only 38 people present.  I do not believe there were any representatives from TMA or TOMA present. 

All told, Ms. Robinson did a find job explaining the Board's position on several issues and weathered some amount of hostility from some members of the audience.  Overall, it was good PR, but not much substance from my perspective.  There were a few times I wanted to chime in and give an alternative view to the Board's position, but I keep my mouth shut for a change. 

The few things that I did find interesting were:

This fiscal year they are estimating 6900 complaints.  Of those, the Board will open more than 2500 full blown investigation. 

The Board views complaints like crime stoppers.

The Board views the fast track procedure similar to a traffic ticket.  I will write in the near future why this is a BAD analogy. 

The Board plans more town meeting in the future, and the "feed back" from these meetings will be presented at the August Board meeting for review and possible future action. 

The Board is thinking about seeking a change in the law that will require the Board to provide more notice for the ISC, but also require the doctor to respond sooner too.  For example, currently the Board only must given 30 days notice to an ISC and the doctor must provide records 5 business days prior to an ISC.  The Board wants 45 days notice and 20 days for the doctor.  I would like this, but I would like 10 more days, for 55 days, and 20 days for the doctor.  The rationale is the Board has much time as it needs to make its case, we don't have a lot of time to rebut the Board case. 

I left after about a 1hr 45min.  I had enough. 

Texas Board of Acupuncture Examiners

Board Meeting

June 6 2008

Licensure Committee

Two applicants were requested to appear before the Board.

The first applicant:

• - Failed to note his second arrest on his application
• - Arrest was for speeding on a motor cycle, illegal lane change.
• - Assumed it was going to be expunged by the age of 21 and forgot about it.
• - 2 arrests showed up on DPS record.

Options:

• - approve anyways
• - determine ineligible
• - Restrict License
• - With draw, re apply with application fees

The committee voted to recommend he receive an unrestricted license.  Motion passed.

Ms. Kumbo

• - October 2007determined ineligible to blindness.
• - December 2007 Requested hearing
• - February 2007 Hearing
• - She did travel to Japan in 2006to continue her studies. She also had a reader come in for the written part of the exam (herbal)

Problems and concerns expressed by the members: 

• - Travel
• - Patient Selection
• - How would she be able to tell if her area is completely sterile?
• - How would she be able to read patients faces/ reactions? (Said she checks there pulse after every needle insertion, always in the room.)
• - How does she distribute RX's? In the video she did not use any gloves, handed over the bag with only verbal instruction. (Claims she always gives written instruction.)
• - How does she react, deal with patients pointing and gesturing to problem areas? (no answer)
• - In the video, she asked the patient to let her know if there is any blood when she removed the needles. (Mr. Ho mentions that this should not be the job of the patient. )
• - Video shows he reusing the same cotton ball - she claims again, video editing.
• - Mr. Cline agrees the video is good- and agrees that it is not uncommon to not use gloves.
• - She did finally explain that when it came to knowing how sterile an area was it came down to common sense. Why would a patient come in covered in paint or grease?
• - How would she know if lids to containers got mixed up? What if there was a dead cockroach in the herbs? How would she tell?

Motion Options

• - 3 year period of group only ( after one year she could request termination)
• - Adaption to other techniques

Motion: Restricted

• - 1 year supervised (check up everything 3 months)
• - Will meet to review after one year
• - She must not work on other blind patients when using the insertion technique.
• - After 3 years if she complies with the restricted license it will naturally terminate.

For more on this see: http://www.statesman.com/news/content/news/stories/local/06/07/0607acupuncture.html

Board also spoke about making guidelines for future blind applicants

Board all agreed her video was good- but with poor editing.

Education Committee

• - Brief discussion on updating visual aids (Problems with adobe)
• - Mostly discussed hours required for license. Want to change one hour of herbal to three hours. No motion was made because of lack of urgency.
• - 9hrs herbal, 3 hrs general = 12 total (Bah Chi?)

Discipline and Ethics Committee

• - Appeal of a dismissed complaint and the committee went to executive session.
• - Enforcement:
• 1. 2 active complaints ( 3 total)
• 2. 6 active legal cases currently being prosecuted.
• 3. No termination requests so far in 2008.

Remainder went to Executive Session.

Full Board

• - There are two new 2 new members, Mr. Seagal, a public member and Mr. Cline a licensee member.
• - Dr. Patrick, Directors Report - via phone recovering from surgery. He spoke about his appreciation and retiring in August 2008.
• - One Rehabilitation Order was considered-Basically had to do with an applicant with a medical condition, currently in remission. Should they continue to practice. Applicant must stay in treatment if they would like to continue. Order was adopted.
• -
• - Changes to 183 in 22 TAC:
• o Adding bio medicine to requirements to CAE.
• o Should transferring acupuncturists have to take state exam again when moving to a new state? ( Not sure what they finally decided, focused on evening the number of hours more than anything)
• o Motion: to change the three strikes on your out testing policy to changed to 5 attempts, NOT eligible after 6 or more attempts.
• o Any applicants that are over a year old are to be considered expired, not inactive.
• o Finger Print cards? Have gone back to FP cards through the DPS, FBI and school when reviewing applicants. Cost: $42. Sent to vendor w/ DPS to show background information etc.
• o Indefinite record keeping: Changed to 7 years. Keep clients records until age 21 or 7 years after last day of treatment. ( min of 7 yrs.)
• o Want to add 3 hours of Herbology, and the bio medicine.

These recommendations must first be approved by the Texas Medical Board.

I believe in simple solutions to these types of problems. 

Solution one is to deem all foreign medical schools as unapproved as we do not honestly know if all schools are substantially equivalent to a Texas school.  This is obviously not politically possible or reasonable.  So, that begs the questions, why are certain schools automatically deemed not substantially equivalent based solely due to location?  It is not fair nor reasonable.

Therefore, a real solution to this problem is the following: 

I believe we maintain the above rules as is with one simple change.  That change would be if the Board has licensed an individual from an unapproved medical school and that first person has meet the requirements required under the rules demonstrating their school is "substantially equivalent to a Texas medical school" no future graduate need do so.  It is a waste of time and resources for both the individual and Board staff.  Moreover, there is no reasonable or logical reason to require an individual to provide the Board information is already has and has approved.  There are dozens of physicians who have graduated from unapproved schools with active licenses.  There are even more who are currently residents in Texas. 

Having a "trial-blazer" perform the work to show someone is substantially equivalent is how the Board handles other medical schools it has not licensed from in the past.  Why not do this with schools like SABA and St. Matthews?  There are now several graduates practicing in Texas who are went to these schools practicing in Texas.  Why does each new application have to go through this if the Board has deemed their individual educational experience substantially equivalent?  It is not logical. 

Under the current rule, to show one is substantially equivalent, the Board require the following:

                                                                (vi) For schools that have geographically separated programs, the principal academic officer of each geographically remote site must coordinate the curriculum with an academic officer of the medical school responsible for organizing the educational program. [Board rule 163.1(12)(B)]

This is a substantial burden both on the applicant and on the school, as much of the information must come directly from the school. 

The results of an interesting study by TMA finds that Blue Cross/Blue Shields rating system to be flawed.  See the story at this link: http://www.texmed.org/Template.aspx?id=6758

It has been my experience over the past two years, the Texas Medical Board has openned a number of cases that we strongly believe are based on complaints by insurance companies, including BCBS.  Moreover, evidence of the BlueChoice Solutions rating system has been used by Board staff and consultants as evidence against my clients. 

I hope something comes about as a result of this report.  I have been doing this long enough not to get my hopes up, but this report is a useful tool.

- Jon

June 9 and 10 - Brownsville - Both sessions will be conducted at the Brownsville Event Center, 1 Event Center Boulevard. The Town Hall meeting will be at 7 p.m. on June 9 and the licensing seminar will begin at 8:30 a.m. on June 10.

June 17 and 18 - Midland - Both sessions will be conducted at the Center for Energy and Economic Diversification, 1400 N. FM 1788. The Town Hall meeting will begin at 7 p.m. on June 17 and the licensing seminar will begin at 8:30 a.m. on June 18.

June 23 and 24 - Austin - The Town Hall meeting will be at 7 p.m. on June 23^rd in the Thompson Auditorium at the Texas Medical Association offices, 401 W. 15^th St. The licensing seminar will begin at 11 a.m. on June 24 in Room 100 in the lobby area of the William P. Hobby Jr. State Office Building, 333 Guadalupe Street.
 

July 1 and 2 - Fort Worth, Both sessions will be conducted at the University of North Texas Health Science Center, 3500 Camp Bowie Boulevard. The sessions will be conducted in Luibel Hall on the second floor of the EAD building, which is at the corner of Montgomery and Camp Bowie. The Town Hall meeting will begin at 7 p.m. July 1. The licensing seminar will begin at 8:30 a.m. on July 2. 

July 8 and 9 - Bryan/College Station - Both sessions will be conducted in Lecture Hall 1 on the first floor of the Joe Reynolds Medical Building at Texas A&M University, at the southwest corner of University Drive and Olsen Boulevard. The Town Hall meeting will be at 7 p.m. on July 8 and the licensing seminar will begin at 8:30 a.m. on July 9.

These sessions were encourged by legislators during two seperate hearings regarding the Board.  Hopefuly this will be a positive experience and the Board will be open to listen to the concerns expressed.

By statute the Board has 180 day complete an investigation.  There are some problems with this.  First, it does not mean anything.  There are no consequences if the Board fails to complete the investigation in this time frame.  Moreover, the Board is required to submit a letter explaining why it takes over 180 days if it surpasses it.  I have never received such a letter and I have several cases well beyond that date.  Even when I asked for such letters, I have not received them.

Second, what does investigation mean?  They have the pre-investigation…that doesn’t count.  When it’s under internal review, does that count?  What about waiting for the Board to act, even in a dismissal, does that count?  I have never received a straight response to what 180 days actually means.

Third, it harms the investigation.  This is a double edged sword; however, because there are only between 22 and 26 investigators (depending on who is hired and who quits) and there is over thousands of investigation opened, investigators cannot give each investigation the time and energy it needs.  The initial reviewers are too liberal when opening investigations and the investigations do not have sufficient time to really investigate claims. 

Several things can be done about this; however, in my opinion the 180 deadline is a joke.  Just get rid of it. 

I have told myself that I need to get back to the blog.  I have not written in a while and I am going to do my utmost to try to post something at least two or three times a week.  I will do my best to get back to this as I feel some of the information that I pass long can be helpful.

As I write this, it's currently before 4AM on a Saturday early morning. I have been unable to sleep as I am still very angry and upset from an ISC that occurred for one of clients on Friday.  I obviously cannot go into any real details regarding the case.  However, I can say that I one point I told the Board members present that my client was afraid of the Board.  One of the members told me that my client should not be afraid.  The Board's role was to protect the public and to make my doctor the best doctor possible.  The Board wanted to make this matter (for which we had three experts that said the client was within the standard of care) was an educational experience to improve the skills of my client.  The client expressed gratitude and only wanted to provide the very best for his patients.  When we returned the Board recommendation was to suspend my client for 30 days!  Of course, I told the Board this was wholly unacceptable.  Clearly, his fear of the agency was justified. 

The odds are this case is going to litigation; which is a shame. 

I am upset for a number of reasons that I cannot go into at this time.  For the last several hours I have been de-constructing the hearing to see what went wrong.  I see some things that could have been do better; but the long and short seems to me that all the information we provided, which included our expert reports, journal articles supporting the care and multiple statements regarding the care; were not considered equal to the Board's consultant report, which was unsupported by peered review statement and rather unspecific.  Moreover, the Board member disagreed with the client's approach to the patient, thus it was a violation of the standard of care. 

My feeling is you 10 doctors in a room, you're going to get 10 different ways to handle a problem.  Different approaches do not necessarily equal a violation of the standard of care. 

I'm just frustrated by this approach.  I do not believe we received a fair hearing as we were not heard.  I feel that had we done nothing, the outcome would have been the same. 

I may be wrong about this...I just can't sleep. 

About an hour ago, Dr. Donald Patrick, the Executive Director for the Texas Medical Board, announced to the Board that he will resign as Executive Director effective August 31, 2008.  If the Board does not determine a successor for his position, Mari Robinson, JD, the Director of Enforcement will be named interim Executive Director. 

More soon. 

Treatment Plans

For the Board, it is critical that each chronic pain patient receive an individualized treatment plan.  This plan must be in the medical record.  The treatment plan should include the following:

• 1. how the medication relates to the chief presenting complaint of chronic pain[1];
• 2. dosage and frequency of any drugs prescribed[2];
• 3. further testing and diagnostic evaluations to be ordered[3];
• 4. other treatments that are planned or considered[4];
• 5. periodic reviews planned[5]; and,
• 6. objectives that will be used to determine treatment success, such as pain relief and improved physical and psychosocial function.[6]

Treatment plans can be a critical tool in demonstrating medical rationale for treatment.  Treatment plans under this rule, and as well as under the Board's rules for other medical records[7], are essentially a written plan of action that is given to the patient with both subjective and objective measures that the doctor and the patient agree upon in order to achieve their stated medical goal.  The treatment plan should be provided to the patient and be in the medical record.  This document establishes a course of action for the patient and the medical treatment to take on the condition the patient presents with. 

A critical consideration with treatment plans is they are not a static document and are constantly being revised based on the condition, the progress of the patient, achieving goals, and the like.  The treatment plan is an evolving document that provides structure for the patient and evidence of success of the treatment or a need to re-evaluate the course of action.  Treatment plans must be developed with input from the patient and other health care professionals that are treating the patient.  This is a multi-disciplinary approach to care.  It is necessary that everyone involved in the treatment plan buys-in from the start, otherwise there will be conflict.  The parties need to work together to determine if the goals and treatment objectives are being met. 

[1] 22 Texas Administrative Code §170.3(a)(2)(A). (2007)

[2] 22 Texas Administrative Code §170.3(a)(2)(B). (2007)

[3] 22 Texas Administrative Code §170.3(a)(2)(C). (2007)

[4] 22 Texas Administrative Code §170.3(a)(2)(D). (2007)

[5] 22 Texas Administrative Code §170.3(a)(2)(E). (2007)

[6] 22 Texas Administrative Code §170.3(a)(2)(F). (2007)

[7] 22 Texas Administrative Code §165.1.  Also see "Dissolute Documentation: TMB Rewrites the Rules for Medical Records" The Record TMLT March/April 2007.  Jon Porter and Jane Holeman.