Information provided through Jon Porter at www.healthlicensedefense.com
This information is from the June 7th and 8th, 2007 Texas Medical Board Meeting in Austin, Texas. The next meeting will be held August 23rd and 24th in Austin.
Executive Committee – June 7, 2007
Rules Requiring Further Work
Among the lengthy list of proposed rules coming up in the main Board meeting, two in particular need to be pulled down and reworked. These rules are 172.14 on administrative license and 190.8 n disciplinary guidelines. 190.8 n requires reworking because its impact on other state organizations was not considered.
Legislation
There were 90 bills with direct or indirect impact on the board and 14 passed. They also received 64 requests for fiscal notes on bills.
Priority Legislation of 8 Bills was discussed and is also thoroughly explained in the TMB Priority Legislation – 80th Legislation document below.
The Sunset Advisory Commission
The Sunset Advisory Commission to review the TMB in the 81st Legislature was discussed. The Board is unsure of what the evaluation will entail. Looking back at the 2005 Sunset review Board Staff believes that the sunset review is objective, interested in process and good government rather than politics, and is certainly not a group to automatically feel uncomfortable about looking into the agency. Board Staff will do everything in their power to help direct, influence, or advise the review process. For a look at the H.B. 3249 concerning the TMB and the Sunset review see document of Article 6. Special Purpose Review below.
Possible Loss of Licensure Division
The back up in Licensure caused a near disaster for the TMB. Board Staff and Board Members had a very close call pulling all nighters and any strings available to prevent the loss of the Licensure division to the Licensing and Registration Agency. This movement was thought to have little steam but ended up being very serious. Board staff reminded that this issue will not go away and that the most important thing to do is to educate legislatures about the TMB. Dr. Kalafut expressed to all present how grave the situation truly was reminding them that the proposed changes would allow licensing for doctors to be handled with the likes of plumbers. This movement is in reaction to the huge backlog in Licensing the Board is currently attempting to handle. The Board wants it known that the delays in processing applications are due to a large influx of doctors wanting to practice in the state. Although some of the numbers seem to be improving Board Staff reminded the Board that they were currently processing the “easy” applications and that before the fiscal year they would need to hunker down and really get through some of the more difficult ones.
Appropriation Issues
The Board was given the opportunity to hire 7 additional FTEs, 6 in Licensure, and 1 for IT projects. Two IT projects are in the works, some sort of budgeting system that staff is working on that will be ready by July 1st, and an upgrade to enforcement systems including Lasorfiche and issues with the internal database. Also some funds have supposedly been set aside for creating an as yet undefined online presence in September.
The Board is able to hire 6 additional Licensure staff “contingent upon prioritizing licensure for physicians who treat Medicare and Medicaid patients.” Other Appropriations issues can be seen in the TMB-80th Session Appropriations Issues document below.
Confidentiality of Compliance Files
The confidentiality of compliance files is currently under fire. In one lawsuit settled regarding a requested discussion paper required by an agreed order, it was ruled that anything in the compliance file might be public. Just in the last week they received another decision from open records saying compliance files must be disclosed. They have sent a letter to request an appeal. This is an issue that the Board will be facing. The Board wants all compliance files and investigations to be confidential.
Retreat
The Board discussed some ideas for the Board’s next retreat. Some of the issues mentioned were Board Members role in public protection, public perception, impaired physicians, long term prognoses for impaired physicians, red flags to catch a relapse at an ISC, and standard of care dilemmas when deviating from experts.
Discussion, Recommendation, and Possible Action Regarding Proposed Policy for Complaints Filed Concerning a Physician Board Member’s Practice
In any case when a complaint is filed against a Board member and goes past the initial 30 day review the following changes will be made: The Executive Director will be excused from the case, the President will step in on administrative matters, and the chairman of DPRC would be involved in some fashion, essentially all else will be standard procedure. The general consensus is that these proceedings would need to be attuned to sensitivities and done in a professional manner.
Report on Internal Audit
The Texas Medical Board is the smallest agency subject to the state auditing act, which is tailored for larger agencies that have an internal auditor. This year topics proposed for the Audit are communications issues, review of existing procedures of sharing information with other entities, and confidentiality. Staff needed acknowledgement to select a vendor for the audit which the Board passed. With recent funding, as seen in the Appropriation Issues document, the Board is better able to handle the internal audit. Board staff is looking into forming a partnership with another similar sized agency to share an auditor in an effort to save money and to have continuity in auditors.
Report and Discussion Regarding Personnel
The big news is that, barring anyone else quits and the recently hired employees actually show up, the TMB will be fully staffed for the first time. There are also three positions posted that they are trying to fill in as soon as possible. Eight positions have been filled since the previous meeting bringing the current FTE count to 125.
Standing Orders Committee – June 7, 2007 Chapter 181
This rule was only brought up because agencies are supposed to review rules every 4 years. They made a slight change to make the verification of prescriptions for contact lenses consistent with the Occupations Code.
Chapter 194
This rule concerns non certified radiological technicians. This rule is in place because in many rural areas it is difficult to get a certified “rad tech”. Being certified requires 40 hours of CME per year and technicians must go through the health department for this certification. It is difficult in rural areas to keep a full time rad tech on hand, because there is not enough for a full time technician to do. Many doctors are letting their nurses sign up for the non certified registration with the Texas Medical Board. As of yet there have been no complaints against the non certified rad techs. Registration with the board is required of all non certified rad techs. The application can be sent in online with $50 and there are about 2000 of these non certified techs in Texas . It is the responsibility of the doctor to insure that the rad tech is registered. Registration expires every year and non certified rad techs must reapply.
Chapter 197
Some surface level changes were made fixing outdated agency names. The two substantive changes are 197.4(c) which required physicians to be familiar with protocols in any area they may be traveling to. The enforcement stakeholder group met and decided that it was unfair to require physicians to know the protocols of these regions. It was also discussed that all names and license numbers of EMS personnel be given to the Board.
Chapter 200
Complimentary and Alternative medicine was discussed in relation to this Chapter. This issue seemed to be at the same time very important and also elusive. No one board member could put their finger on a strong definition of alternative medicine. Different definitions were thrown around and consensus was reached that the current definition was weak. The board also has no experts in this area and felt like the rules pertaining to practitioners of alternative medicine needed clarification. One of the main ideas discussed was that the board holds these doctors accountable to the Standard of Care based on traditional medicine. Many wondered what was to keep a physician who practices alternative medicine, or just claims to, from saying that they did nothing wrong because they do not follow the traditional standards of care. Are the same standards applicable to practitioners of alternative medicine? Board members also agreed that if the patient were not able to distinguish the alternative or complimentary medicine and treatment they were receiving from standard medical treatment then it would be assumed to be medical treatment and not alternative or complimentary. It was obvious to anyone in the room that this was a growing problem and an area that is in dire need of further consideration.
DPRC Committee – June 7, 2007 DRC Qualifications
There was some discussion as to what is required of DRC’s who sit on an ISC without a physician board member, as far as medical competency is concerned. The new rule stated that the extra DRC member would be required to have the same qualifications as the expert panel. It was pointed out this was not even required of physician board members. It was not intended to hold DRC members to a higher standard than even physician board members. The rule was sent back to be rewritten and emailed to board members.
Experts and Necessity Cases
Rule 190 brought up discussion on holding doctors liable for decisions made in necessity cases to be looked at by experts who have a background in medical necessity. Board members questioned if this expert would be aware of standard of care and they felt he or she could consult with someone in his/her panel. Having a medical director as an expert for a medical director in such a case was discussed. But there is no board certification for a medical director so the case would go to whatever the doctor was certified in. If the doctor is certified in pathology but it is an OB case then the file would have to be sent to a pathologist expert who would then have to recommend the case be sent to the proper expert. It was also mentioned that medical directors would be easy on other medical directors, and that maybe the case would be sent to a medical director and one other expert. No one knew who the case would be sent to in case of a tie between the two experts. At this point they went into executive session for 40 minutes to discuss the issue in private. When they came back into session there was a whirlwind of actions and votes the jist of which seemed to be that the term expert would be removed and replaced with something that did not require active practice in medicine.
Appeals
When time came for the appeals no one had shown up and the Board was not happy about one person who had asked for a delay for the 2nd time. Throughout the rest of the meeting this issue was brought up. Another issue was that some board members were concerned that the appeals were not mentioned in the final letter send out. The letter does however direct physicians to the website where they could learn of the appeals process. It was finally decided best not to put it in the letter because they thought many people would call for no reason. It was decided that only extenuating circumstances or new information that would otherwise be unavailable would be required to delay an appeal. The Board directed staff to create a policy about delaying an appeal that would be similar to a continuance for an ISC.
Cases recommended for 2nd ISC
This case involved a knee fracture diagnosed late with popliteal artery compromise that the doctor checked off that the vascular exam was done but did not document the findings. This had an adverse outcome and so it was recommended for another hearing.
In this case the respondent had a patient’s credit card on file and would charge the card with late fees without the patient’s knowledge.
A residency director had a resident with Fentanyl abuse. A residency director is supposed to notify the board within 7 days of the discovery of abuse, and notify the board of a resident being out of the program for 21 days. This residency director did neither of these things. Dr. Kalafut wants to send a message to residency directors that they have a responsibility to make sure we do not have impaired physicians treating our citizens. This is a blaring violation and needs to go back to a 2nd ISC.
A doctor failed to report 3 arrests on his original application and has had no discipline for lying on the application.
May 2007 Statistics
The board staff requested more people in the pain management area for expert panels. They will be fully staffed in enforcement by July 2 and they hope it lasts. There were 259 investigations in May, and completed 235 investigations. There are 1232 current investigations underway. There have been 325 ISCs with around 100 scheduled for this summer. Summer is going to be very busy for the board. Many other statistics can be found in the Enforcement Report May 2007.
Full Board Meeting – June 7th and 8th, 2007 Introductions and Awards
There are two new board members Dr. McMichael and Mr. Webb.
Mr. Webb received a plaque from the Texas Board of Physician Assistant Examiners.
Dr. Paik received a plaque but was not present and a letter was read in his stead.
Mr. Miles also received a plaque and gave a speech to two standing ovations.
Board staff opened with reminding the Board that the sunset review is coming up and will take up the staff’s time. They believe that the public and legislators will listen to the sunset review. Staff also stressed that it was important that everyone get the word out that the backlog in licensure is due to the increase in physicians, not the fault of the board or staff.
New Staff Members
Mathew Hays: Enforcement
Brenda Bibbs: Enforcement
Patrina Henry: Field Investigator, Compliance Department.
Alfredo Conales: CIC
Harry Deckert: Attorney
Lee Buckstein: Attorney
John Heissle: Attorney
Jennifer Kaufman: Attorney
Sorry if the spelling is wrong on the names.
A donation from the Texas Health Institute for $25,000 is being used to pay for around 400 hours of temporaries, and to pay staff some overtime. Legislative Summary
Staff told of the additional 2.5 FTE’s they could hire and that they were authorized to raise fees. Staff also mentioned a 250k 2% staff salary increase. Staff is considering raising the initial application fee from $805 to $905, or at least something in that range.
Status of Licensure Department
Licensure is still flooded with applications expecting to meet or even break the amount of applications of last year. They have completed 2300 so far and have 2500 active applications. Licensure is working overtime and streamlining the process. Completion time has been going down but staff admits that this is only because they have been doing all of the “easy ones” first. They have a goal of making the process for an application only 51 days. They are expecting a tough summer when they have to dig in and work on some of the harder applications.
Robert Simpson’s Presentation and Discussion on Dismissed ISC Cases
He said that half of all cases closed in the first 30 days, 40% dismissed at staff level before ISC. Out of 416 ISCs in 2006 about 112 were dismissed by the panel, finding violations in 60-65% of ISCs. He wondered why so many cases are dismissed at the ISC level if staff was doing its job correctly. Mr. Simpson then started a discussion about why cases are dismissed at ISC. He said some panels dismiss due to new facts, panel members disagree with the expert panel report, or staff listens to the facts and it is not a clear cut case so they send it to an ISC. He also said that sometimes the panel considers mitigating factors such as it being the physician’s first offense, no harm was done, or the physician admits his mistakes and has made an attempt at changing his practice and doing CMEs.
After some more debate Dr. Price spoke up saying that the reason we have the ISC is to meet respondents face to face and sort out ambiguities, sometimes the ISC doesn’t always turn out the way one plans. He ended with saying that he though there was still a good function for the ISC panel.
Deferred ISCs
Mr. Simpson brought up that there were 20 deferred ISCs. Out of all of these there was 1 agreed order, 1 case dismissed, 1 case went to an ISC, 4 have ISCs scheduled, and 13 cases have had no action at all, to which Ms. Robinson the staff attorney stated that 4 of the 13 had been referred. This still leaves 9 cases with absolutely no action at present.
The Board on Experts
At this point it was said that it is the inclination of the board to give more weight to their own experts over those of the Respondent. Ironically a board member stated that it seems that the Respondent’s experts see things our experts do not always see.
Some board members voiced that board experts would be more prepared if they could review the expert reports of the Respondents, but this is just not possible in the 5 day time span.
The Board on Peer Reviewed Journals
A board member said that they had noted that Respondent’s experts provide a lot of peer reviewed journals that their own experts had not consulted.
“Do we ask our panels to include literature review”?
“No, not encouraged either”, was the response of the Staff attorney. She then went on to explain the basis for this decision was that they wanted to consult practicing physicians not academics.
Enforcement of 5 day rule for ISC
What ensued at this point was a fairly heated debate on the lateness of ISC materials. The rules state that the Respondent has 5 business days before the ISC to turn in their information. The Board seemed evenly split between enforcing this rule with no exceptions and allowing late material. Some though that because the rule is 5 days it should be 5 days. Others however noted that sometimes the late material is very relevant to the case. Staff has been unsure of what to do with late material, and whether or not to send it to the panel. Staff also brought up a lawyer tactic being used by Respondent’s attorneys to inundate the panel at the last minute with boxes of information and those… peer reviewed articles. Oddly enough staff failed to mention to the board members complaining about late material that sometimes material is on time and still fails to reach the panel before the ISC. The debate raged on with valid arguments on both sides until a board member motioned staff to enforce the rule by the next fiscal year and to inform defense attorneys of the changes in a letter. It was seconded and passed. All respondents will be required to have their ISC information in 5 business days before the ISC or it will not be considered. Of course some board members still mentioned even after the motion that material could be brought to the ISC and it was up to the panel to decide whether or not they wished to consider it.
Modified Agreed Orders
In a case involving unnecessary and excessive surgeries the board added a public reprimand, a chart monitor, and, because it was financially motivated, they increased the administrative penalty.
A call for public reprimand was added to the order of a doctor who had sexual relations with a patient.
Dr. Kalafut brought up an order where a 2.5 year old child had died. The original order was 1 year with 15 hours of CME and a $15,000 penalty. This order was changed to 30 hours of CME, PALS course, SPEX, JP exam, and a public reprimand. The administrative penalty was removed.
Elections
Elections were held for the Secretary Treasurer and the Vice President.
Mr. Turner and Ms. Fredricks ran for Secretary Treasurer with Mr. Turner winning the votes for the position.
Dr. Anderson, Dr. Arambula, and the incumbent Dr. Price ran for Vice President with Dr. Price taking the victory. Dr. Arambula withdrew his candidacy before voting.
SOAH Cases
Andrew W. Campbell Case
This physician focuses on the links between illness and molds. Basically the doctor was found to have overly charged his patients for tests that were not deemed to be relevant by the Board’s experts. The respondent argued that this was a developing area of medicine and furthermore that his tests were justified.
Judges recommended brief suspension, a monitor, admin penalties, and a public reprimand.
Board agreed with the judges giving a public reprimand, suspension until February of 2008, a $210,000 administrative penalty, and a chart monitor. They also added 25 hours of CME, Respondent is to prepare a paper relating to standard of care about use of new medication, and the paper must demonstrate an understanding of the findings of fact due by January 1, 2008, and a requirement of obtaining written consent from each patient that he has disclosed proper information on the tests they will receive. If he meets all of these requirements he will be on probation for 5 years.
Tone Johnson Jr. Case
This case involved a patient in the ER who was not diagnosed quickly enough with a severe medical condition.
Staff recommended suspension for 1 year with immediate stay, with a chart monitor for 2 years, $5,000 penalty, and CME. Board followed recommendations of ALJ.
Dr. Jha Case
This case involved the death of a patient with some type of miscommunication between the anesthesiologist Dr. Jha and the CRNA concerning an early extabation of the patient. The judges found all of the staff’s witnesses to be completely unreliable and even calling them established liars under oath. This case boiled down to credibility and Dr. Jha came out on top with the judges recommending no action. Staff disagreed with this but advised the Board to yield to the judges because issues of credibility are not usually appealable.
The Board followed the judges’ recommendations.
Rules
Passed with no comments:
161, 163,166, 173, 182, 184, 187, 190 except n, 190.8n, 196, 198
Passed with comments and no changes:
Rule 164: There were comments from an organization of palliative medicine which asked that the Board recognize board certification of a group not done so by the American Board of Medical Specialties. It was mentioned that there would have to be some rewriting to accommodate this. This organization wanted the Board to recognize those certified by a board that was not previously certified. The Board decided to adopt the rule as is without changes.
Rule 172.5: A witness came representing the Texas Association of Community Health Centers. He made several requests all of which were rebutted by Staff attorneys and the rule was adopted without change.
Computer Issues
Some time was left at the end of the meeting for Board members to discuss issues that they are having with the Lasorfiche system. Essentially most are unhappy with the system with the chief complaints being that it has intermittent crashes, is always slow, and Board members are receiving materials late. IT staff members noted these complaints and are in the process of getting help from the vendor.
