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. 

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

In its rules, the Board tries to paint with a broad brush on attempting to define what may constitute sound clinical judgment.  The Board writes “[s]ound clinical judgment results from evidence-based medicine and/or the use of generally accepted standards.”[1]  The method to show sound clinic judgment is “…recording the physician’s rationale for the treatment plan and maintaining medical records that are legible, complete, accurate and current for each patient.”[2] This seemingly insignificant statement is critical.  For the Board, medical records are insufficient to merely provide basic SOAP information.  The medical records, particularly for the treatment of chronic pain, must clearly demonstrate what the physician was thinking when he or she determined a particular course of action for a patient.  All relevant factors should be included in these records, based on the author’s actual experiences with the Board.  This should include, but is not limited to family histories, the patient’s medical history, prior treatments, especially if more conservative treatments were not attempted, consults to other specialists, whether non-narcotics treatments were utilized or even considered, and other factors that fully and comprehensively detail why this course of action was taken and evidence to support that decision.  Failure to do so has lead many physicians into disciplinary action by the Board. 

The rule for the Board is chiefly based on the medical record itself.  The rule states that sound medical judgment can be shown through medical records that are “…legible, complete, accurate and current for each patient.”[3] The Board further suggests that “[t]he extent of medical records should be reasonable for each case.”[4]  Suggestions of what to include in this “complete” and “reasonable” record are justification for narcotics, especially when it is difficult to relate the pain to objective findings and to ensure the use of the drugs are closely monitored.[5] Yet, for all the warnings and suggestions presented, there are so many wiggle words that much of what is asked is in the eye of the beholder.  For better or worse, if a complaint is filed against a doctor, the Board is the beholder. 

Are There Treatment Limits?

The Legislature did place limits on prescribing for chronic pain.  These limits are somewhat obvious.  The doctor cannot prescribe for an illegitimate purpose.[6]  That seems perfectly acceptable.  The second limit can be a little more problematic in actual practice.  The doctor cannot prescribe to someone he knows or should know is improperly using the medications.[7]  From experience, if a patient admits non-therapeutic use of drugs, then the doctor needs to immediately cease prescribing drugs.  However, “should” know that someone is abusing drugs is a more difficult situation.  Should know is typically a product circumstantial information that would lead a common person to believe a patient is abusing drugs.  The problem again is the issue of the subjective nature of pain and the trust involved between the patient and the doctor.  Should that trust be violated, then it is a factor that may lead to termination of the prescribing of controlled substances.  Information from other physicians, pharmacies, law enforcement, family members, and obvious signs of drug seeking behavior could all be factors to consider in whether one “should have known” about non-therapeutic use of medications.  The Board does prosecute physicians who failed to adequately look into their crystal ball.  It is often easy to see a drug abuser in retrospect.  It is often more challenging before the abuse is actually discovered.  It is the doctor’s role to be suspect of any action out of the norm.  The problem is the “norm” for treating pain is not always obvious. 

The law directs if a physician does treat patients with chronic pain, that doctor is under an affirmative obligation to monitor the patient.  The monitoring ensures the medications are used to treat the pain condition.[8]  More importantly, the law mandates that the doctor take certain and specific steps to ensure the proper use of controlled substances by patients.  The doctor is legally required to document an “understanding between the physician and patient about the patient's prescribed treatment.”[9]  In the past, this could have been done by merely documenting patient education.  Of late, the Board has found that insufficient.  Any patient education needs to be specific and direct.  The preferred method of documenting this understanding is through a pain contract.  The Board has rules on pain contracts, which the Board rules refers to as “agreements.”  This will be discussed later in the paper.    

The Legislature also requires strict documentation on the drugs prescribed and administered.  Requiring:

1.                         The name of the drug[10];

2.                         The dosage of the drug and the method of taking the drug (i.e. IM, oral, etc.)[11];

3.                         The number of dose units prescribed[12];

4.                         The frequency of prescribing and dispensing of the drug[13]; and

5.                         Consult with psychologist, psychiatrist, expert in the treatment of addictions, or other health care professional, as appropriate.[14]

The first four requirements appear basic on its face.  Naming the drug clearly and legibly is critical.  It is equally important to document if one is providing the drug as a sample.  Be familiar with the Board rules on documenting the use of sample medications.[15]  Denoting the proper dosage is also critical.  Be careful with decimal points.  Rarely do people list the method of taking the drug, so it is important to double check and add that to your list of requirements when documenting.  Just because it appears self-evident based on the type of medication prescribed, it is still critical to list the method of ingestion or administration.

Frequency of prescribing or dispensing controlled substances is a huge issue.  “The board will not look solely at the quantity or duration of drug therapy.”[16]  The operative word is “solely.”  The fact is quantity and duration has always been at the heart of the investigations by the Board.  Pill counts and graphs indicating the drugs the patients received over a given time period are part and parcel of the Board’s prosecution of a chronic pain case.  The defense, again, is a clearly documented medical argument for the course and nature of the treatment. 

An ironic problem that has been seen in the author’s defense in such cases is the discrepancy that exists on the issue of quantity prescribed and frequency of visits with the doctor.  Prescribing less than thirty days is often seen as insufficient, while prescribing more than sixty days is excessive.  Providing refills without in person follow-ups is often seen as excessive.  Seeing patients more frequently than thirty days can been seen as excessive, especially if this is a long-term patient; whereas seeing patients less than quarterly is viewed as too infrequent.  Providing refills over the phone is often seen as inadequate care, even for patients that have been stable for a long period of time.  Obviously, mailing a prescription to a patient is seen as very poor judgment.  Based on the actions of the Board in disciplining doctors, they have created, in the author’s opinion, a thin tight rope for Texas physicians to walk. 

The fifth factor is often seen as a question of evaluating the judgment of the doctor’s sound clinical judgment.  The Board will question why someone was not referred to consultants.  This can be a critical factor for the Board, especially if there is no evidence that more conservative measures or alternatives were not attempted prior to the use of controlled substances.  If the patient has history for substance abuse, failing to obtain a psychiatric evaluation to judge the risks and benefits of using controlled substances to control the pain will result in action by the Board.

Despite the statute stating a doctor cannot be disciplined for prescribing or administering a narcotic in the treatment of chronic pain, the Legislature placed in several exceptions.  The chief and most frequently used is the prescription was not for a legitimate medical purpose and therefore, non-therapeutic in nature.[17]  In order to provide guidance to both the statute and the rules, the Board enacted several specific “guidelines,” which the Board actually uses as rules.  These guidelines are critical to know and should be made part of one’s practice if they deal with chronic pain patients. 

These so-called guidelines are used by the Board during both its investigations and prosecutions of complaints.  Further, these guidelines are used by the Board’s consultants and others to determine whether the doctor operated within the standard of care and exhibited sound clinical judgment.  Prior to exploring the rules in detail, the Board states “[i]t is not the board’s policy to take disciplinary action against a physician solely for not adhering strictly to these guidelines if the physician’s rationale for the treatment indicates sound clinical judgment documented in the medical records. Each case of prescribing for pain will be evaluated on an individual basis.”[18]  Although this is a part of the Board’s guidelines, through the author’s actual experience before the Board, failure to follow these guidelines makes defending the care rendered extremely difficult.  The vast majority of investigations of those who do not follow the process set by the Board go on to prosecution and the majority of those receive some form of discipline. 

The practice guidelines established by the Board are dramatic and complex.  It is critical to review one’s practice and make sure one is in-line with these processes to ensure compliance. Again, this is the best defense against prosecution.  Moreover, even if a physician only treats one chronic pain patient and has thousands of other patients, that singular patient is covered by these guidelines and the doctor is subject to discipline for failure to adhere to them. 

Part 4 soon

Licensure Committee

A public rehabilitative order was issued granting a license to an individual with a history of substance abuse and two related arrests but had been sober since 2001. The stipulations of the order required three years of drug screens, AA meetings three times per week, and independent psychiatric evaluation.

Juliana Cumbo

Juliana Cumbo is a blind acupuncturist license applicant. She had come to the Licensure Committee in the hopes of being granted a rehearing. Her request for a license had previously been denied by 3 out of the 4 members of the Licensure Committee. The request for a rehearing was granted along with her request to waive confidentiality and hold the meeting in an open session.

Mrs. Cumbo’s case had obviously drawn attention because an article discussing her situation just happened to be on the front page of the Austin American Statesman on the day of the hearing. A link to the article may be found here:

http://www.statesman.com/news/content/news/stories/local/02/01/0201acupuncture.html

A link the outcome can also be found at:

http://www.statesman.com/news/content/news/stories/local/02/02/0202acupuncture.html

The Licensure Committee was obviously concerned about the possible repercussions of denying an applicant based entirely on the fact of their being blind. But they also needed to consider the safety of the public in the hands of a blind acupuncturist. After holding an Executive session for slightly over 2 hours, they were ready to begin the rehearing.

Juliana Cumbo came to the hearing with a retinue of lawyers, disability advocates, professors, close friends, and family. Before the hearing began Mrs. Cumbo’s lawyer, David Cohen, requested that Mrs. Lin, Chair of the Licensure Committee, recuse herself from the meeting. Mrs. Lin wholeheartedly refused to recuse herself in a prepared speech.

The Board’s first questions focused on how Mrs. Cumbo practices acupuncture safely and without blood contamination.

She thoroughly explained her methods of practicing acupuncture. She diagnoses patients using the Japanese Toyohari method, which involves extensive palpation of the abdominal region. She does this in place of the traditional tongue reading method. She uses only shallow insertions of the thinnest possible needles along with non-insertive techniques that she has learned. She removes each needle one at a time and places a cotton swab directly on the insertion point as she removes the needle, and checks the patient’s pulse as well. She claims that using this method prevents any serious bleeding that may occur. She also mentioned that if necessary she could ask the patients questions as necessary regarding the color of their skin or if any of the insertion points have continuous bleeding. She also stated that if she had any reservations about her ability to care for a certain patient, she would refer that patient out.  

The Board could only come up with hypothetical situations in which she might run into problems. She has treated well over 500 patients in her school’s clinic without any complaints or problems. She has passed all of her exams and graduated with a master’s degree in Acupuncture and Oriental Medicine. On top of that she has been to Japan to practice the Toyohari method. One of her instructors, Mr. Shen, was present and vouched for her educational process and ability to practice safely.

The Board expressed that they were concerned about Mrs. Cumbo’s ability to practice privately outside of an academic environment. After a prolonged and unorthodox procedure the board had finished hearing Mrs. Cumbo’s testimony and opened up the meeting to allow any public person in the audience to express their concerns or opinions. Mrs. Cumbo’s professor, the President and Vice president of Ayoma, the President of the National Federation of the Blind in Texas , as well as a concerned citizen voiced their opinions on the matter.

After another executive session the Board had finally come to a decision.

Before a motion was passed Terry Rascoe, M.D., Presiding Officer of the Texas State Board of Acupuncture Examiners, made a final statement expressing the Board’s concerns. Dr. Rascoe insured that the Board wanted to be as objective as possible in this case. So far all of the information that the Board had received dealt with Mrs. Cumbo practicing in an academic setting. The one component that the Board felt was missing was an objective and fair assessment of Mrs. Cumbo’s abilities outside of an academic setting.

Final Decision

The Motion passed was as follows. Action on Mrs. Cumbo’s application was deferred, and the expiration date and fees were extended for 6 months. Mrs. Cumbo will need to be evaluated by two independent consultants approved by the Board and Mrs. Cumbo. One of the consultants must be a licensed acupuncturist and the other may be a physician with knowledge of acupuncture. These consultants will observe Mrs. Cumbo treating one male and one female patient whom she has not previously seen. The consultants will then report their findings to the Board.

It is assumed that this type of evaluation will allow the Board to make a more informed decision on the matter.

Examination Attempt Limits

Before the meeting adjourned there was a discussion regarding examination attempt limits. NCCAOM has an attempt limit of 5, and after 3 attempts they require that proof of continuing education be submitted. The Board wants to be in accordance with the NCCAOM system and moved to have the stakeholder group look into it.

Education Committee

Continuing Acupuncture Education

Various CAE programs were discussed for approval by the Board. All classes were approved for all programs except a Biosthology course with Allen Klein, and the Physiology Approached through Numerology courses with Sharon Weizenbaum, which the Board felt that they needed more information to approve.

Biomedicine CAE Requirement

Various Board members expressed a desire for a Biomedicine CAE requirement. Some suggested keeping the required CAE at 17 hours, but instead of having 6 hours at the discretion of the licensee, there would only be 3. Others mentioned keeping the 6 free hours and raising the total amount of hours to 20. Staff advised the Board that if any new CAE requirement were to be put into effect they would have to delay it for a year to allow for these courses to be offered. No decisions were made except to have the stakeholder group look at this, but it would be reasonable to assume that a Biomedicine CAE requirement will be put into effect within the next 2 years.

Full Board Meeting

The Executive Director’s Report mentioned that any applicant who applies after January first must pass a jurisprudence exam, and that some kind learning document will be provided to applicants.

Information provided by Jon Porter, JD with Aaron Blair.  For questions or concerns, please find contact information on Jon Porter at www.healthlicensedefense.com or call 512-260-6843.

It is fortunate that the Texas Legislature recognized that the treatment of pain is a legitimate practice and created some protections for practitioners who choose to treat pain.  According to the law, a doctor cannot be disciplined for prescribing or administering a narcotic in the treatment of chronic pain.[1]  The law offers further protection by preventing hospitals and other health care facilities from prohibiting or restricting the use of controlled substances for the treatment of chronic pain.[2] 

The Texas Medical Board (hereinafter “the Board”) has promulgated rules on pain as well.  In so doing, the Board expresses its recognition that “[t]he treatment of pain is a vital part of the practice of medicine.”[1]  The Board even states that doctors can treat pain “…using sound clinical judgment without fear” of disciplinary action.[1]  The Board even recognizes that the use of drugs is an “…essential tool for the treatment of pain.”[2] Unfortunately, the reality is these high-minded laws are enforced somewhat differently by the Board.

Definitions You Need to Know

The law defines “intractable pain” as: “…a state of pain for which the cause of the pain cannot be removed or otherwise treated; and in the generally accepted course of medical practice, relief or cure of the cause of the pain: is not possible; or has not been found after reasonable efforts.”[6]    Interestingly, the Board has a slightly different, but important definition of “chronic pain.”  By rule, the Board defines chronic pain as “a state in which pain persists beyond the usual course of an acute disease or healing of an injury. Chronic pain may be associated with a chronic pathological process that causes continuous or intermittent pain over months or years.”[7]

Although the author does not believe the differences between the two definitions of synonymous words are overly significant, in certain situations they can be.  In the statutory definition, the critical factor appears to be the issue of what is generally accepted in the medical practice.  This is, of course, problematic, as the term “generally accepted” possesses wide and varying meaning depending on numerous factors, including practice location, specialty area, advances in medicine, and the like.  Whereas, in the Board’s rules, the critical factor for the Board is the length of time a person is in pain, pointing to pain over months or even years.  This raises the legitimate questions how and when does one decide that the pain has existed long-enough to classify it as chronic.  Must the length of time be two months, ten months, a year, or more?   Pointing back to the statute, it suggests one measures the pain “beyond the usual course of an acute disease or healing of an injury.”  However, that definition is as subjective as pain itself. 

The Board explains its charge is to “…assure that drugs are used in a therapeutic manner.”[8]  It admonishes that a doctor’s duty is to help, and not harm the patients and the public with their prescribing authority.[9]  The Board warns of the failure to use “sound medical judgment” that may lead to harm.[10]  The Board warns of both overuse of medications, but also under use of drugs.[11]  Despite these somewhat dire warnings, the Board advises that as long as the doctor is utilizing “sound clinical judgment” they should not fear the government.[12]  Fear for most practitioners is not so much a concern that they are harming their patients; rather, who is the arbitrator of what sound clinical judgment is?

 By Jon Porter.  If you wish to contact Jon, e-mail him at porter@healthlicensedefense.com

[1] Texas Occupations Code §107.151 (Vernon’s 2006).

[2]  Texas Occupations Code §107.053 (Vernon’s 2006).

[1] 22 Texas Administrative Code §170.1 (2007). 

[1] Id.

[2] 22 Texas Administrative Code §170.1(2) (2007).

[1] Texas Occupations Code §107.151 (Vernon’s 2006).

[2]  Texas Occupations Code §107.053 (Vernon’s 2006).

[3] 22 Texas Administrative Code §170.1 (2007). 

[4] Id.

[5] 22 Texas Administrative Code §170.1(2) (2007). 

[6] Texas Occupations Code §107.002 (Vernon’s 2006).

[7] 22 Texas Administrative Code §170.2(4). (2007). 

[8] 22 Texas Administrative Code §170.1(3). (2007). 

[9] Id.

[10] 22 Texas Administrative Code §170.1(4). (2007). 

[11] Id.

[12] 22 Texas Administrative Code §170.1(5). (2007). 

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.

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. 

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.