Initial Encounter

Upon the initial visit with the patient, the doctor must spend some quality time with the patient.  There is a necessity to gather a substantial amount of information in order to come to the conclusion that the individual suffers from chronic pain.  The doctor must obtain a “…medical history and physical examination that includes a problem-focused exam specific to the chief presenting complaint of the patient.”[1] The medical record must obviously document the history and physical.  The medical records should include at a minimum:

• 1. the nature and intensity of the pain[2];
• 2. current and past treatments for pain[3];
• 3. underlying or coexisting diseases and conditions[4];
• 4. the effect of the pain on physical and psychological function[5];
• 5. any history and potential for substance abuse;[6] and,
• 6. the presence of one or more recognized medical indications for the use of a dangerous or scheduled drug.[7]

Again, the expectation of the Board is there will be a strong narrative supporting the information gathered.  The nature of the pain should be descriptive (i.e. burning, stabbing, throbbing) and should be tied to actions (i.e. sitting, standing, working, sleeping).  The intensity should be some type of scale that represents or even visually demonstrates the level of pain.  The most common examples are the one to ten scale, with ten being the worst possible pain, or the smiley to frowny faces visually representing the level of pain.  The family or self-history of substance abuse is also a critical factor.  If there is positive history, this must be explored in great detail.  The general belief of the Board is such an individual requires psychiatric evaluation to determine the likelihood for addiction and to opine as to whether treatment with narcotics is ultimately in the patient’s best interests.   If for some reason the doctor decides to treat the patient with such a history and against the recommendation of the evaluator, the physician must greatly explain their medical rationale for doing so. 

Please submit questions or concerns to Jon Porter

Part 5 soon

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

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

[3] 22 Texas Administrative Code §170.3(a)(1)(B)(ii). (2007)

[4] 22 Texas Administrative Code §170.3(a)(1)(B)(iii). (2007)

[5] 22 Texas Administrative Code §170.3(a)(1)(B)(vi). (2007)

[6] 22 Texas Administrative Code §170.3(a)(1)(B)(v). (2007)

[7] 22 Texas Administrative Code §170.3(a)(1)(B)(vi). (2007)

Texas Medical Board - February 8, 2008

Full Board Meeting

Pulled Agreed Orders Modified

A doctor charging a patient’s credit card even though it had been withdrawn had their case dismissed because the patient had been compensated.

A doctor, who wrote non-therapeutic prescriptions, had his Agreed Order changed from just a chart monitor to a revocation of 2’s and 3’s. The Board member who had participated in the ISC felt that this doctor was more a victim of circumstance than a bad actor. However, this was not enough for the board, his lack of documentation on dosage increases and “indiscriminate use of 2’s,” called for these modifications.

Following this order, Mari Robinson, Director of Enforcement, gave an update on the Board’s collaboration with federal authorities to crack down on “pill mills” in the Houston area.

A doctor performed a large volume liposuction and abdominal plasty in an 8 hour surgery. The patient’s vital signs were all low and after they arrested they were sent to the ICU. This case was originally pulled because a Board member wished to open an investigation on the anesthesiologist. But this one year Agreed Order was voted to be extended to three years with continuous monitoring, and 10 CME hours in Liposuction and 10 CME hours in Post Operation added for each year. The Board wished to send a message to all Plastic Surgeons that might think of taking on risky procedures.

Fast Track Discussions

Following the approval of all the proposed rules, Mari Robinson headed up a discussion concerning what violations would fall within the jurisdiction of the “Fast Track” system. These “traffic tickets” are meant to handle administrative violations. Any doctors receiving one of these tickets, merely has to write a check and send it back in within 30 days. Specific violators will not be mentioned in the newsletter, but all Fast Track violations will be listed aggregately. But, if one were to look up a specific doctor’s name, these violations would show up in their profile. A doctor may receive no more than one ticket concerning a specific violation, or three tickets all involving different violations. The Board decided that Peer Review cases would not fall under this new system. Minor violations of Board orders, and any misleading advertising will result in a $1,000 fine. Mr. Webb expressed a desire to have clearer definitions in place with consistent punishments. All other violations that are administrative will be included in this system.

TMA/Board Impairment collaboration report

Dr. John Jackson, Chair of the Texas Medical Association Physician Health and Rehabilitation Committee, came before the Board to present a possible collaboration between the Board and the TMA in dealing with impairment issues. Right now the Board handles all of these cases, but in many states there are systems which involve the community organizations as well as the state Board. The system proposed by Dr. Jackson would allow for the strengths of each organization to complement each other to help impaired physicians and protect the public. There would be a centralized organization that all parties would buy into, wherein the Board would retain ultimate authority.

The TMA would be able to act quickly and get to the doctors faster than the Board. If a doctor is cooperative, he will be able to recover in a confidential system under this centralized organization. However, if the doctor is not cooperative, they will be reported to the Board and the order will be made public. Rules and guidelines will be carefully placed so that the doctors who are willing to get help will be protected in a confidential system, and doctors who are a danger to the public will be prevented from doing so by the Board.

Drug testing would still run through the Board, but rather than having names, the Board would have ID numbers. If a test came back positive the Board would be able to investigate the situation through the centralized organization. This would provide a type of check on the confidentiality system for the Board.

The Board would have hiring authority for this organization and it could be funded by adding a surcharge to licensees. This new system is still in the preliminary stages and the vast majority of its actual applications and structure have yet to be decided. Dr. Jackson came before the Board to see if there would be interest in this collaboration. This kind of organization can not exist without support from the Board. If the Board approves of the possibility of this new system, then more meetings and liaisons between the Board and TMA will guide the creation of this new organization.

This is still in the “thinking” stage and no formal decision has been made to in regard to this program.

Thanks to Mr. Blair for taking notes. 

Please send questions or comments to Jon Porter

Texas Medical Board: February 7, 2008

Executive Committee Meeting

Arrived 8:10 am.  The Committee was discussing vacancies and hiring of staff.  It was stated Boar staff is nearly 100% with all but 3 of the vacancies.  The Committee went into Executive session at 8:15am.  The Committee remained in closed session until adjournment.  Adjourned at 9:15.

Finance Committee     

The meeting was called to order at 9:20am.  It was announced to the committee the hiring of  budget  analyst Judy Monroe.  Ms. Monroe worked previously in the private sector, prior experience in Dept info resources.

The committee was also advised of a change in purchasing.  The committee was informed the Board’s  Operating budget was  $6.3 Million.  As of the end of January, the Board had spent $2.5 million  (which is only 42% of the total budget) leaving $3.7 million for the remained of the fiscal year which ends on August 31^st.

The committee adjourned at 9:32

Disciplinary Process Review Committee

The Committee convened at 9:40AM and immediately went into Executive Session.

Once out of executive session, the Committee discussed Investigative Case 08-1028.  At this case, a dismissal letter sent to the doctor, but the doctor was advised to increase communication with patients.  The complaint’s issue shared  that she had a diagnosis of abnormal pap with HPV.  The complainant  maintains that she does not have HPV.  She was in a monogamous relationship for 29 years.  She was requesting that the Board required her physician to reimburse her for the HPV testing that was ordered, apparently without the knowledge of the patient.  She was also requesting that the physician be required to removed information about her pap test regarding a diagnosis of HPV.

The Committee discussed there was no way to require physician to expunge the patient’s records.  No way to take out information about the procedure and pretend it did not happen.  The physician could  reimburse for services they performed, but cannot required outside facilities running tests to refund money.  Not within the jurisdiction of the Board to request this.  The complainant asked for suggestions for future and was told to ask more questions, are you going to do any additional testing.  Testing is not always conclusive on existing conditions.

The Committee discussed Investigative Case 07-0918.  The Complainant described that she sustained a rotator cuff  injury at work.  She was out of work for 12 months.  She participated in physical therapy and did her own rehabilitative work at home.  She feels she has 100% functioning of her arm.   The reviewing Physican recommended that she not be rehired after the 12 months, stating that she would not have full function of her arm.  The patient negotiated with her employer, for whom she worked for 25 years and was reinstated.

The Committee voted that the case should remain closed.  However, the Committee directed staff to sent a letter to the physician that directs the doctor to documents patient’s expectations and a review of the records.  Physicians may review a functional evaluation report. Some will do a physical exam to determine level of function and others will determine that full function is not possible and make a decision based on that.

The Committee reviewed Investigation 07-3135.  The Committee voted to uphold the dismissal. 

The Committee reviewed Investigation 07-1500.  The Committee directed staff to send a letter to the doctor advising that more time should be spent with patient. 

The Committee reviewed Investigation 07-1578  and moved to close the case on ineligibility of records.

The Committee reviewed Investigation 07-3035  and moved to further supply expert additional information on patient’s chart, thus re-opening the case.

The Committee reviewed Investigation 07-6543  and moved that the complaint remain closed.  However, the Board would open a new investigation to review the medical records.

The Committee reviewed Investigation 07-254 and moved to dismissed the investigation. 

The Committee reviewed Investigation 08-0621 regarding a supervision case of a PA.  The Committee directed the investigation should be re-opened. 

The Committee moved that all files that were not pulled be approved for closure.

Board staff reported to the Committee there were currently 1,700 ACTIVE INVESTIGATIONS with 19 Field Investigators.  This means the average investigator has 89.5 investigations.  According to staff, ideally an investigator would carry 40-50  cases.

Fiscal year 2008, the Board has opened 1100 complaints and completed 798 investigations.  Staff advised that  Jurisdictional field complaints were down, but December is typically a slow month for complaints. 

Staff advised that the Legal Division currently has 493 active cases, which is more than in 2007. 

In December the Board has two Temporary suspensions.

Staff also advised there are currently 71 cases at SOAH.  Board staff argued the part of the problem is SOAH’s issue.  Board staff advised that SOAH is severely understaffed and as SOAH deals with the driver’s license cases as we due to the 3 strikes on your license and you lose it.  More people are defending their licenses when they have a second offense, trying to get them dismissed.

One of the Board members felts that if timely filing occurred, people will be willing to settle. 

Staff advised there are another 40 cases where no settlement has been reached.  The plan of action in these cases is to file at SOAH if no complaint is reached.  It was explained that there is no incentive to settle, if the doctors believe proposed orders can just sit out there with no consequence.

Board staff also complained that more doctors are using lawyers to handle their cases.  Staff theorized that this could this be because the Board has developed a reputation of being stricter and the physicians want to protect themselves.

Dr. Anderson asked could something be put on the website stating that it is a choice to hire a lawyer, not required.  Staff responded that something could be put on the website, but it can only say that “hiring an attorney is up to you.”  Staff also advised that physicians do receive information on the process and Rule 187.

Board staff predicted that more than 48 cases will be filed at SOAH by June.   16% of the total Legal Division docket is at SOAH.  In 2007 it was 14% and 2006 it was 13%.  They also advised that mediations are down from previous years. 

Test advised there were currently 607 Probationers in the Board’s Compliance program.  More than 4000 drug tests have been conducted this fiscal year. 

A question was posed about requests for extensions for longer than 14 days to respond to initial notice of investigation.  Staff stated they could not grant such extensions.  However, the belief is if they permitted doctors to respond in 30 days, more cases could be initially dismissed.

The Committee moved for Executive Session.  

The Committee returned to discuss various rules: 

Board rule 164.3 regarding Solicitation was reposted and approve for publication.  On the issue of “drumming up business”  the Committee referred back to the statues, but could not define drumming.

Board rule 196.1 worked on cleaned up language of the rule.  There was discussion on resigning while under investigation.  The Committee reviewed this as possible disciplinary action.

The Board was to discuss issues relating to delegation authority on the use of Lasers.  Staff took the Laser Rule discussion off the agenda, saying that there was language that needed to be amended.

There was a discussion regarding medical devices:  Medical devices meaning all devices used at clinics and physicians offices such as lasers, fetal monitors, colonic irrigations instruments, however, the Board focused on using Laser Clinics as the example.  The Office of the Attorney General contacted the medical board asking for their help in the area of medical devices.  As it stands the Federal law is that these devices must be purchased by a physician and the use of ordered by a physician.  They proposed that the Medical Board institute a distance rule for supervising physicians.  Something like a supervisor cannot be more than xxxx miles away and remain the supervisor, as it would be too far to adequately supervise the technicians.  The example was a physician located in El Paso supervising clinics in San Antonio and purchasing equipment when he is never at that clinic.  They also proposed a time rule, i.e. visiting the clinics (being physically present) X times per month, quarter, etc.   They decided to table the discussion and make no decision at this time.  However, there was much energy and input to the affect that some rule be put in place.

It was offered that the telemedicine rules might upset a distance rule.  The issue at hand for the Board is can a doctor respond adequately to the emergency?  It was suggested that they follow similar rules that Physician Assistants following regarding prescriptive rules.  It was mentioned that:  “This will open up the same issues we have currently with laser centers in Dallas being supervised by physicians in San Antonio. Currently, when there is a problem with supervision or purchasing of equipment not meeting the Federal rules, they impound the devices.  As soon as compliance occurs, they need to give the device back and many times the same scenario goes on, harming the public.

The Board decided to table the discussion because of time and too many variables.

 Regarding Board Rule 193.11 Laser Hair Removal, the Committee moved to repeal the Rule.

At this point, the public got sent out of the Disciplinary Process Review meeting after discussion of the rules.  The Committee did not call Executive Session.  One of the women who was there questioned them on this and staff gave some excuse about why the public could not stay.  This woman decided to make a complaint about this.

Licensure Committee Meeting

Meeting reconvened from the morning in the large meeting room in tower 2. (previously they had been meeting in the ISC room on the 7^th floor of Tower 3 and were not allowing the public in.

There were 4 case outcomes regarding false and misleading information on applications.  The 4 cases were granted licensure with fines, but many Board members offered opinions on how fortunate these individuals were to be granted licenses.  Board members offered these opinions:  

“False and misleading information given to the Board was viewed as intentional, in order to mislead the Board.” 

“Forgetting about arrests was unbelievable, as arrests are a serious, life altering event that they find hard to believe applicants could possibly forget.  These incidents are viewed as misrepresentation to the Board.”

“Applicants need to understand how important it is to fill out the Application themselves.”  This was in response to a contention that someone else had filled out the application.

Adjourned at 4:15PM

FULL BOARD MEETING                             

The meeting was convened at 4:23 pm and a quorum was present

The Federation of State Medical Boards is on May 1^st in San Antonio.  There was discussion about hosting a reception for the other State Board members.  Members felt it would be appropriate to host an event.  It was offered that there would be funds, since salary expenses were down due to vacancies.  It was estimated that it would cost about $2,000.  Requests were made to Board members to donate the money for the reception.  No takers.  There may also be funds to reimburse Board Members for travel to the event.

EXECUTIVE DIRECTOR’S REPORT

Moved to go into Executive Session

PUBLIC INFORMATION REPORT

They had planned to do a presentation with overhead slides, but the projector was not working.

It was an overview of what the application process looks like to applicants who apply online.

Suggested moving the agenda item to Friday’s Agenda.

December 16^th and 17^th are the dates for the Sunset Hearing. A Limited Purpose Review is set for sometime in August.

The Governor’s office Process Review of Health License Processes showed that the Medical Board shuffles more paper than any other Board.   This could be due to all the vouchers for medical records and the expert opinions.

Moved to go into Executive Session at 4:45 pm to discuss remaining items and then they would adjourn. 

Thanks to Ms. Bissar for taking notes. 

For questions or concerns, contact Jon Porter