Wednesday | December 19, 2007

Board Rule 165 - Part One

The next few entries will be about a rule that the Board enforces strictly and most doctors are in violation of it.  This is in regard to the Board's records keeping rules.  I hope this will be helpful. 
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The Texas Medical Board (“the Board”) views of medical records extremely seriously.  This chapter focuses exclusively on Board rules and policies as it relates to the doctor’s obligation to create an “adequate” medical records, the doctor’s obligation to maintain those records and when and how to release medical records.  This chapter will provide the reader the knowledge and understanding of how the Board views the various obligations that derive from medical records. 

 

If It Wasn’t Documented, It Was Not Done

 

In medical school and residency, if you did not hear the phrase, “if it wasn’t documented, it was not done,” you were not paying attention.  Over the years, Board members often must repeat this phrase during ISCs as the medical records they frequently see are sub-standard.  In the vast majority of “standard of care” investigations that result in ISCs were do in large part to poor documentation.  Generally, the doctor failed to either be legible, thorough, and/or demonstrate a nexus between the diagnosis and treatment.  This failure to adequately communicate and document in the record has been a fatal flaw for numerous doctors that appear before the Board. 

 

Most physicians wrongly believe that following the basic SOAP method (Subjective, Objective, Assessment, Plan) is sufficient for the Board.  It is often insufficient based upon the lack of detail physicians provided in the subheadings of the SOAP method.  This is not the fault of the SOAP method; it is the fault of the person creating the medical record. 

 

The Board had long insisted that a medical record serve two distinct and critical functions: first, medical records are to memorialize for the treating doctor the history and treatment of an existing patient. Many doctors appearing before the Board with sparse records are able to demonstrate a keen memory regarding the histories and treatments of their patients.  They could adequately explain specifically what they did for each patient and why they did it.  Clinically, it often was reasoned, logical and medically appropriate.  However, it failed to document what was done. 

 

However, the Board feels the secondary purpose of medical records is for the subsequent treating doctor.  If the patient seeks a second opinion, sees a specialist or gets another doctor, the new doctor reviewing the medical records that the Board often sees would not know anything about the illness of the patient, the treatment and how the doctor decided on the course of action taken.  In short, the records were generally useless for doctors down the line. 

 

For a considerable time period, the Board merely demanded from its rule on medical records that physician maintain “adequate medical records.”  This was defined as “any records documenting or memorializing the history, diagnosis and treatment of any patient.[1]”  The Board staff found this rule rather incomplete and failed to express the importance placed on the medical record by the Board members.  The rule was far too vague.  The Board members insisted the new rule require licensed Texas physicians to stop thinking as the medical records just for themselves, but for all doctors in the future.  As a result of this frustration and the increased perception of inadequate medical records, the Board radically re-wrote the rules of what is required in an “acceptable” medical record.

by Jon Porter
To contact Jon, go to www.healthlicensefense.com
[1] 22 Texas Administrative Code §165.1.  (2002)
Posted by Jon at 14:20:40 | Permanent Link | Comments (0) |

Tuesday | December 11, 2007

Administrative Licenses

 

Texas Occupations Code Section 155.009 directs the Board to create an Administrative Medical license.  The purpose is to license physicians who no longer directly treat patients, but do make decisions that can directly or indirectly affect patient care, such as doctors who work for insurance companies or are medical directors for large hospitals.  The goal, like with general licensing, is to ensure these individuals have the proper background, education, good ethical character and can be regulated by the Board. 

 

This statute directs the Board to issue these licenses and to create rules to govern them.  However, to date, the Board has not done so.  In fact, there are no rules on this statute, despite the statute directing the Board to do so.  What is done now, for those who bother to apply (we do not know how many have not applied for a license working as an administrative physician) the Board issues a non-disciplinary order granting those doctors a license, but limiting them to administrative medicine. 

 

There are two problems with this:  First, there is no definition for what administrative medicine is, and second, even a non-disciplinary order must be on the Board’s web site.  It may be a reportable event, and costs more money as the doctor must meet with the licensure committee of the Board, which only meets six times a year.  This delays the process, requires the doctor to make an appearance in Austin , and lumps the doctor with others applicants who may have much more significant issues. 

 

The Board really needs to follow its own statute and get moving on this issue, both to make a fairer process for the doctors who do apply for a license and to take action against those who have not applied for a license and who are making medical decisions without a license, affecting patient’s lives. 
Posted by Jon at 10:28:11 | Permanent Link | Comments (0) |

Thursday | December 06, 2007

Five Ideas to Improve the Texas Medical Board

 

The following are five ideas that I believe based on my experience with the Board that would improve the process.  I encourage all readers to share these ideas with their state representatives, senators and professional organizations.  I also would encourage readers to debate this ideas and think of other methods.  The Board has an important job.  I believe it can be done better.

 

1.                  Give Final Decision-Making Authority to the State Office Of Administrative Hearings.  The point of this is to provide true due process to the system.  After an Informal Settlement Conference (ISC), if a decision is not agreed to, the Board will file a complaint at the State Office of Administrative Hearings (SOAH).  After a full blown trial, an administrative law judge (ALJ) issues a proposal for decision (PFD).  The reason it is a proposal is the full Board votes on the proposal despite the fact the Board members were not involved in the hearing in any way.  They can accept the PFD, modify it, or even reverse it.  The Board has done just this on occasion.  As a result, some people are reluctant to exercise their rights as there is a justifiable fear that the Board will merely reverse the decision of the ALJ if there is a positive finding for the doctor.
2.                  Change the Standard of Review on Appeal. Currently the standard of review is called “substantial evidence” this means to challenge the Board’s decision on appeal requires an extraordinary outcome to reverse the Board.  Under the standard of review, the vast minority of cases are reversed. 
 3.                  Statute of Limitations.  There are currently no statute of limitations on complaints to the Board.  Two years like malpractice is likely unreasonable, but seven years since the time of the incident is a reasonable statute of limitation on complaints. 
 4.                  Investigation/Application File.  Under the law the application and investigation file is considered confidential, thus the Board will not release any information to the physician unless they want the physician to see the information.  The Board’s investigation file should be released to the doctor so they can see the evidence in the file, both the good and the bad.  That is what is done in criminal trials, why should criminals get more rights than doctors?  This should equally apply to the Licensure file.  Other agencies do this and it does not negatively impact their job.
5.                  Know your Accuser.  Other agencies disclose who filed the complaint.  I believe doctors should know.  Many accusers are competitors, insurance companies, and other parties.  Many times it is not the patient. It is true the majority of the complaints are patients and their families.  The rationale for the confidentiality of the complaint is patients may not be treated if the doctor knows who filed the complaint.  My personal belief is: if a patient filed a complaint, the patient is not likely to continue to see the doctor.  

 

These five steps will help in making the process fairer and more cost effective for both the doctor and the Board. 
Posted by Jon at 15:18:18 | Permanent Link | Comments (5) |