Health License Defense

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

April Board Committee Meetings
Executive Committee
New Executive Session Procedure
According to Mr. Simpson the Attorney General provision which they had been announcing before going into executive session has been over ruled. Therefore, a new system had to be developed. From now on when moving into Executive Session, a board member must make a motion to move into executive session for one of four possible reasons:
Licensure
Disciplinary
Advice of Counsel
Personnel Matters
After the motion is passed the Executive Session begins and public observers must leave the room. Executive Session will also no longer be listed as an agenda item, because the Board can go in whenever they feel it is appropriate. At least now public observers can know on a basic level why the Executive Session has been called. Other than the changes discussed above, nothing else has been modified concerning the Board’s ability to go into Executive Session.
Dr. Patrick Retiring
After nearly 7 years, and upon turning 70, Dr. Patrick will be retiring from his position as Executive Director for the Texas Medical Board on August 28, 2008. He plans to go on and take a masters degree in music at the University of Texas .

Standing Orders Committee
Requests for Waivers of Prescriptive Delegation Requirements
Two specific requests to waive prescriptive delegation requirements were discussed in depth. A request from the Kay Health Center was denied, and another request from a Dr. Theriot was postponed so that further information could be acquired. Staff informed the members of the committee on previous Board rulings concerning these waivers. The Board has never granted a complete waiver before, but in special circumstances usually involving underserved areas, they have reduced the frequency of visits required.

Rule Review
            Chapter 169- Authority of Physicians to supply Drugs
                         Name updated, nothing substantive.
            Chapter 193- Standing Delegation Orders
                        193.2, 193.2- Name updated
                        193.4- Fixed a double negative
193.6- For underserved populations, physician must be present at least every 10 business days no matter how many days the office itself is actually open. Chart review must consist of charts since the most recent visit. 
193.11- Deleted

Disciplinary Process Review Committee
Report on Investigation
Mari Robinson reported on the Investigation department to the Board. Apparently in February staff “hit a wall”, and “stopped processing anything in a meaningful way”. At that time there were 1,894 cases open with only 19 investigators. So many cases and documents were pouring in that these investigators were unable to make much progress. Only 80 cases were closed in February.
In order to get the ball rolling again, staff has been reallocated to the Investigation department and someone has been hired part time to focus on case closures. Staff has also predicted that the new Fast Track system will reduce the amount of cases moving through the Investigation department by 10-15%.
This month 279 cases have been closed, slightly more than were opened, and they have only 1,865 open cases. In order for the current staff to operate efficiently there should only be around 1,500 open cases. Investigators should have about 50-55 cases each but currently have 95.  If these numbers continue, the Board will be asking the legislature for more staff.

Rule Review
Chapter 182- Use of Experts
            Experts will be matched to cases in the specialty they have declared.
Administrative Agreed Order Modifications
It is the current practice to require an ISC for any modification of an Agreed Order. Some of these modifications however could be considered administrative. For example, a licensee under order may be required to visit a psychologist. If that psychologist retires, under current rules the licensee would be required to go to an ISC to see a different psychologist.
Staff proposed that these administrative kinds of Agreed Order modifications could be screened out and decided by staff members. Then they would be presented to the Board at the meetings for approval, much like the Fast Track system. Decreasing the amount of cases going to ISC will allow the Board to set them up faster and more efficiently. This should also help out with the backlog in the Investigation department.

The schedule for the Town Hall meetings is:

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.