Health License Defense

At the June Board meeting, there was a discussion regarding “abuses” of open records requests.  Board staff informed the Public Information Committee about 22 TAC 199.3, which generally provides if someone continues to make open records requests over 36 hours of staff time, they can charge additional money.  According to staff there are a handful of people who make open records requests over and over again.  To be able to enact the 36 hours they would need to track the time spent and the Attorney General’s office has said they must track time on all requests not just on the ones who make multiple requests.  There are requests from licensees (3-7 people) for information on all communications between two people (staff did not identify these people in public session) over a five year period, as an example.  Another example is whenever new panelists are approved, information is requested on qualifications of the panels and how they were approved.  The TMB wanted these individuals to feel the cost of their requests on staff time.  However, according to staff the time spent tracking would cost more to the Board then dealing with the requests.  Copies of fewer than 50 pages, no charges are incurred.  The Board staff determined that cost for computer programming to pull data is $28.50 per hour.  Board staff reported that open records imposes a large cost on all agencies.  The TMB has a person who spends 90% of her time doing opens records.  Board staff estimated that it averages approximately $100,000 to $150,000 per year on dealing with and complying with open records.

During this decision, Dr. George  Williford, a member of the Board, asked staff if the individuals making these large requests could be mentioned in the newsletter and listing the cost to the agency.  He asked if this was a form of harassment.  Mari Robinson, the Executive Director, responded the Board could put together a report on requests, which it is doing it and how many requests these people have made.  This information will be presented at the November meeting.

The following are rule changes put forward by the Texas Chiropractic Board.  These rules are currently open for comment.  If there is a rule you agree or disagree with, all comments should be forwarded to the Board.  The proposed changes are:

Proposed Rules of Practice – Scope of Practice The Texas Board of Chiropractic Examiners (Board) proposes an amendment to §75.17(c)(3), to add a new subparagraph (C) this amendment with an increased requirement that, in order to administer this test, a licensee must have received a diplomate in chiropractic neurology and successfully completed an additional 150-hour post-graduate specialty course in vestibular rehabilitation.

Adopted Rules Applications and Applicants – Approved Chiropractic Schools and Colleges The Texas Board of Chiropractic Examiners (Board) adopts an amendment to §71.5,

The adopted amendment clarifies that bona fide reputable chiropractic schools are those accredited not only by the Council on Chiropractic Education (CCE), but also by other chiropractic educational accrediting bodies that are members in good standing with the Councils on Chiropractic Education International (CCEI). CCE is the American component of CCEI, so American schools currently considered to be “bona fide reputable chiropractic schools” will not be affected by this amendment. The Board has determined applicants from foreign chiropractic schools accredited by CCEI member accrediting bodies should be allowed to be licensed if the applicants meet all other licensing criteria in the state of Texas. Section 201.302 states that an applicant must be either a graduate or a final semester student of a bona fide reputable doctor of chiropractic degree program. Section 201.303 sets forth parameters for determining what qualifies as a bona fide reputable doctor of chiropractic degree program 35 TexReg 5557-58

 Adopted Rules Licenses and Renewals – Renewal of License The Texas Board of Chiropractic Examiners (Board) adopts an amendment to §73.2,

§73.2 The adopted amendment adds subsection (j), which deals with information required to be furnished by licensees to the Board pursuant to license renewal applications. language MOVED FROM 80.3(G)

 Adopted Rules of Practice – Spinal Screening The Texas Board of Chiropractic Examiners (Board) adopts new §75.23, concerning spinal screening, to set forth the minimal standards for conducting out-of-facility spinal screenings, such as at a health fair or other community event. The new rule provides standards for the training required of persons conducting out-of-facility spinal screenings and for the information that must be provided to the public at such screenings. School spinal screenings would still need to be conducted in compliance with DSHS rules and guidelines.

 Adopted Rules of Practice – Impaired Licensees and Applicants Texas Board of Chiropractic Examiners (Board) adopt new §75.25, establishes criteria for when the Board can require an impaired licensee or applicant to undergo mental and/or physical examination. Previously, this information was contained in §80.3, which deals with requests for information and records from licensees. The Board determined that information regarding impaired licensees and applicants would be more appropriate in new §75.25.

 Adopted Rules Formal SOAH Proceedings –amendment to §76.3, concerning Commencement of Enforcement Proceedings corrects an incorrect citation to the Administrative Procedure Act (APA). Previously, subsection (b) cited §2001.052 of the APA in declaring that a respondent is entitled to reasonable notice of a hearing of not less than then days prior to the hearing. However, the correct reference to the APA should be §2001.051, as reflected in this adopted amendment.

  Adopted Rules Formal SOAH Proceedings – Default Judgments amendment to §76.11, concerning Default Judgments, changes the font size of the required default judgment disclosure in notices of hearing. Previously, subsection (b) read that the default judgment disclosure in a notice of hearing was required to be 10-point font Therefore, the adopted amendment changes the required font size for a default judgment disclosure in a notice of hearing to 12-point font.

 Adopted Rules Professional Conduct – Request for Information and Records from Licensees amendment to §80.3, the adopted amendment removes subsections (g) and (h). Previously, §80.3(g) dealt with licensees providing information to the Board about answers to questions on an application for license renewal. The Board determined that §73.2(j) is a more appropriate place for this information. Additionally, §80.3(h) dealt with impaired licensees.

On July 16^th, the Texas Medical Board published it proposed rule changes to be considered at it next Board meeting in August.  It is important for licensees and other interested parties to review these rules to determine how it affects you and your practice. 

 If you support or oppose a rule change, you can write to the Board with any concern you may have.  The following are the proposed changes:

 Proposed Rules General Provisions – Meetings The Texas Medical Board (Board) proposes amendments to §161.5, concerning Meetings. The amendment to

§161.5 provides that adoption of committee minutes are to be approved by the full board rather than by the individual committees.

Proposed Rules Licensure – Examinations Accepted for Licensure – The Texas Medical Board (Board) proposes amendments to §163.6, concerning Examinations Accepted for Licensure. The amendment to

§163.6 clarifies that if an applicant takes multiple types of licensure examinations, attempts at comparable sections shall be combined to determine eligibility for licensure. (counting towards the 3 attempts) Language is currently under a different subsection, and the language is being moved to be cleared on its application.

Proposed Rules Medical Records – The Texas Medical Board (Board) proposes amendments to §165.1, concerning Medical Records. The amendment to §165.1 provides that physicians receiving medical records from other practitioners in relation to the treatment of a specific patient, must only keep those records that are salient to the patient’s treatment.

(This rule change I have a question about.  Who decides what is “salient” to the patient’s treatment.  Likewise, what does it mean to the doctor if he or she did not obtain “salient” records?)

Proposed Rules Telemedicine – The Texas Medical Board (Board) proposes amendments to §174.2 and proposes new §§174.7, 174.9 and 174.11, concerning Telemedicine. The

amendment to §174.2, concerning Definitions, defines distant site provider, established medical site, face-to-face visit, patient site location, patient site presenter; amends the definitions for physician-patient e-mail, telemedicine medical services; and deletes the definition for telepresenter.

 New §174.7, concerning Telemedicine Medical Services Provided at Sites other than an Established Medical Site,

establishes under what conditions a distant site provider may provide telemedicine medical services at sites other than an established medical site, such as a patient’s home.

New §174.9, concerning Technology and Security Requirements, establishes requirements relating to technology and security regarding the provision of telemedicine medical services and physician-patient communications through e-mail.

New §174.11, concerning On-call Services, establishes that physicians in the same specialty who provide reciprocal services may provide on-call telemedicine medical services for each other’s patients.

Proposed Rules Fees and Penalties – Application Fees – The Texas Medical Board (Board) proposes amendments to §175.1, concerning Application Fees. The amendment to §175.1 eliminates application fees for regular temporary licenses for distinguished professor temporary licenses and adds the fee amount for a regular temporary license to the application fee for full licensure, provisional licenses, telemedicine licenses, reissuance of licenses following revocation, and administrative license.

Proposed Rules Certification of Non-Profit Health Organizations – Complaint Procedure Notification The Texas Medical Board (Board) proposes amendments to  §177.13, concerning Complaint Procedure Notification. The amendment to §177.13 updates the name of the Texas Medical Board as used in this chapter.  Formerly the notice just said “the board”

 Proposed Rules Investigations – Requests for Information and Records from Physicians – The Texas Medical Board (Board) proposes amendments to §179.4, concerning Requests for Information and Records from Physicians. The amendment to §179.4 clarifies that this section applies in all respects to licensure applicants.

 Proposed Rules Texas Physician Health Program and Rehabilitation Orders – Texas Physician Health Program and Rehabilitations Orders The Texas Medical Board (Board) proposes amendments to §§180.2 – 180.4, concerning Texas Physician Health Program and Rehabilitation Orders. The amendment to

§180.2, concerning Definitions, adds that the Texas Physician Health and Rehabilitation Committee shall also be referred to as the TXPHP Advisory Committee. The amendment to §180.3, concerning Texas Physician Health Program (PHP), amends language to be consistent with the proposed amendments to §180.2.

The amendment to §180.4, concerning Operation of Program, provides that the drug vendor used by the PHP must be approved by the Texas Medical Board, and establishes standards for processing referrals, requiring evaluations, settings terms for agreements with participants, and facilitating interventions.

 (I take some issue with this too.  The TxPHP should be given the freedom to enter into its own contracts without the Board being involved in it.  I am concerned about the relationship between the Board and the current vendor, First Advantage.)

 Proposed Rules Procedural Rules – The Texas Medical Board (Board) proposes amendments to §187.27, concerning Written Answers in SOAH Proceedings and Default Orders, and §187.81, concerning Reports on Imposition of Administrative Penalty. The amendment to §187.27 corrects an incorrect citation. The amendment to §187.81 requires that disciplinary orders that impose administrative penalties related to the delivery of health care services must be reported to the National Practitioner Data Bank.

 (I have a big problem with this.  A fine should not be reported to the NPDB.  Fines are given out like candy at the Board and usually the licensees are ok with a fine if this matter is not given to the NPDB.  This change is really going to make settling cases more difficult than they already are.) 

Proposed Rules Disciplinary Guidelines – Violation Guidelines – The Texas Medical Board (Board) proposes amendments to §190.8, concerning Violation Guidelines. The

amendment to §190.8 provides that (1) a physician-patient relationship is not necessary when a physician prescribes medications to a patient’s family members if the patient has an illness determined to be pandemic; and (2) unprofessional conduct includes contacting a member of a peer review body for purposes of intimidation in relation to a board investigation.

Proposed Rules Standing Delegation Orders – Delegation of the Carrying out or Signing of Prescription Drug Orders to Physician Assistants and Advanced Practice Nurses The Texas Medical Board (Board) proposes amendments to §193.6, concerning Delegation of the Carrying Out or Signing of Prescription Drug Orders to Physician Assistants and Advanced Practice Nurses. The amendment to §193.6 clarifies that certified registered nurse anesthetists (CRNAs) who only sign or carry out prescription drug orders are not required to register with the Board.

 Withdrawn Rule Telemedicine – The Texas Medical Board withdraws the proposed amendment to §174.2 and new §§174.7, 174.9, and 174.11 which appeared in the April 30, 2010, issue of the Texas Register (35 TexReg 3390) 35 TexReg 6283

At the June meeting for the Texas Medical Board, staff reported to the Board members that the Board is doing well for its 2010 budget, which ends on August 31^st.  Currently, the Board has spent 7.5 million out of an 11 million dollar budget.   Most of the remaining money will go to staff salaries and to the Board’s expert reviewers.

 As we know times are tight for government due to the poor economy.  As such, the Governor asked all state agencies to cut 5% of their budgets.  For the Board that is 1.46 million dollars.  The Board was awarded by the Governor 2.5% of that money back.  In response to this new money, the Board lifted its hiring freeze.    

 Mari Robinson, the Executive Director reported the Board will post jobs in July, and actual hiring in August.  She also reported that the Licensure Division does not operate on laser fiche, they have to scan everything.  This is large efficiency loss, if they do have funds, some will be expended to bring licensure in line to laser fiche.  Also would like to get technology to allow board members to attend ISC’s remotely.  The camera they purchased did not give them the quality they had hoped for; Board members want to be able to see expressions on Respondent’s faces.  The Board is looking at spending money on a better camera to cut down on travel expenses.  Information Technology is researching the costs, and they expect to recoup the money in one to two months in travel savings.

 Ms. Robinson also reported Board staff met with chair of appropriations committee.  A big portion of the cuts were on the expert panel reviews.  They feel they are currently closing many of the cases on the front end. 

 TMB just received legislative appropriations request and fully intended not to ask for additional funding.   They are required to submit a budget and then two appendendacies with additional cuts in each.  Board staff is of the opinion that it does not have any additional monies it can cut.  If they can save on travel, they will put that in, but when you are talking about cuts of millions, it will not be a great help.  Board staff reported it will go back to letting cases sit and wait for expert reviewers, as this is a major expense.

 Board staff reported that Licensing fees have been increased, which was pointed out when they submitted the budget cuts.  This may be why they received money back.  Board staff is concerned about the budget for 2012 and 2013, which will not be finalized until the end of June 2011.  The Board believes it will need to look at brining in additional revenue.  Board staff pointed out the agency brings in triple of what is appropriated through licensure fees, renewal fees and fines.  Board staff hopes the Legislature will take this additional revenue rather than cut the Board’s base budget.  Board staff encouraged Board members communicate with legislators on how budget cuts effect the operations of the Board.

In the Texas Board’s strategic plan, the Board reports the following:  “The median age for all Texas licensed RNs is 47 years of age. The median age for Texas female RNs is 47 years of age and 42 for male RNs. The median  age for all LVNs is 45 years of age.  The median age for Texas female LVNs is 45 years of age and 42 for male LVNs. The largest population group for female RNs is ages 45 to 54 (50,592 – FY 09). The largest population group  for LVNs is ages 35-44 (18,692 – FY 09). The largest population group for male nurses is ages 35 to 44 (7,024 – RN, 2,670 – LVN). All age groups of RNs increased in size from 2000 to 2009  (See Appendix I).

Nurses ages 55 to 64 increased 142% and RNs over age 65 increased 158% in number from FY 2000 until FY 2009. The number of RNs ages 25 to 34 only increased 26%. The smallest increase from 2000 to 2009 among RNs was nurses under age 25. Among LVNs, two age groups decreased in number from FY 2004 to FY 2009. The number of LVNs under age 25 decreased 7% and LVNs ages 45 to 54 decreased 2%. LVNs ages 25 to 34 increased 13%, LVNs ages 35 to 44 increased 18%, LVNs ages 55 to 64 increased 25% and LVNs over 65  increased 32% from FY 2004 to FY 2009. Industry analysts express concerns that this shift in age will cause a decrease in the supply of nurses as licensees reach retirement age.”

This is very concerning because unless there is a shift towards getting more new, younger nurses there will a huge shortage as the general population becomes older.  This is also in relation to the decreased size of the younger generation and that it is projected there will not be enough to support the older generation with Social Security.  But the effect on one’s health care in older years is just as worrisome.

Dr. Donald Patrick, 72, the former Executive Director of the Texas Medical Board joined the Texas Department of Insurance, Division of Workers’ Compensation as the Medical Advisor effective July 12, 2010.  The Medical Advisor’s office conducts investigations against physicians alleged of overutilization — overtreating and overbilling for services the worker’s compensation system.

The LPC Board has instated a number of new rules that all LPC licensees should be aware of.  You can obtain a copy of the rules from the LPC’s website.  It is crtical for any LPC to keep informed on the new rules and how they may apply to you.  The new rule changes are as follows:

SECTION-BY-SECTION SUMMARY LPC Rule Changes

Section 681.14(a)(10) has been added to authorize the board to charge a fee of $50 for pre-evaluation of a criminal history for eligibility for future licensure.

New §681.17 authorizes the board to pre-evaluate a criminal history by request of future licensees.

Section 681.41(e)(6) is amended to require LPC Interns to provide their supervisor’s name on all documentation.

Section 681.41(j) is amended to allow LPCs to promote and sell products to clients as long as it is for a therapeutic purpose and does not hamper the counseling relationship.

Section 681.41(l) is amended to clarify a dual relationship. REMOVES LANGUAGE REGARDING DUAL RELATIONSHIP AND SIMPLY STATES NON-THERAPUETIC RELATIONSHIPS WITH CLIENTS ARE PROHIBITED UNLESS THEY OCCUR TWO YEARS AFTER THERAPY TERMINATED OR IN THE CASE OF SEXUAL RELATIONSHIPS—FIVE YEARS AFTER THERAPY TERMINATED.

Section 681.42(e)(2) is amended to clarify language. REMOVED THE WORD “Inappropriate” regarding seductive, sexual behavior and sexual comments.

Section 681.48(a) is amended to require LPC Interns to provide their supervisor’s name on all documentation. In addition, §681.48(e) is added to require LPC Interns to inform clients of their supervisor’s name, telephone number, and address.

Section 681.49(d) is amended to ensure the understanding that all degrees must be accepted and reported by American Association of Collegiate Registrars and Admissions Officers. THIS REFERS TO ADVERTISING AND THAT A DEGREE MUST BE RECOGNIZED BY AACR

Section 681.52(e) is amended to require LPC Interns to provide their supervisor’s name on all documentation.

Section 681.72(d) is amended to require the supervisor’s renewal card to be submitted with the supervisor agreement form.

Section 681.83(a) is amended to clarify that an applicant must take at least one course in each of the core areas. REMOVES LANGUAGE:  “obtain academic course work”

Section 681.92(g) is amended to allow supervision over the Internet using live Internet webcam.

Section 681.93(e)(2), (4), and (6) is amended with minor editorial revisions in grammar, renumbering within the section, and removing unnecessary existing language.

Section 681.93(k) is amended to clarify the requirement for repayment of supervision fees.

Section 681.111(g) is amended to ensure the understanding that all degrees must be accepted and reported by American Association of Collegiate Registrars and Admissions Officers.

Section 681.125(e) is amended to remove repetitive language.

Section 681.142(b) is deleted to disallow carry over of continuing education credit.

Section 681.164(d)(6) is amended to clarify the rule. Removes the words “insurance claim” and leaves the word” fraud.”

Gov. Rick Perry has appointed Diane Stoebner-May of Montgomery to the Texas State Board of Examiners of Psychologists for a term to expire Oct. 31, 2015.
Dr. Stoebner-May is a licensed psychologist on staff at the Sam Houston State University Counseling Center. She is a former adjunct faculty member in the Psychology Department at Our Lady of the Lake University. She is also a member of the Sam Houston Area Psychological Association. Dr. Stoebner-May received a bachelor’s degree from the University of Texas at San Antonio, a master’s degree in counseling from the University of Texas at El Paso, and a doctorate degree in counseling psychology from the University of Houston.

For Physicians, Physician Assistants and Acupuncturist, if you have a website for yourself or your practice effect July 1, 2010, the Board has instituted new rules that directly affect you. The rule, I believe is some what onerous and vague. I think it may be difficult for some people to comply with; but if you want to keep the Board off your back, you best attempt to adjust your website accordingly.
The rule is 164.6.Required Disclosures on Websites.
(a) Disclosure. A licensee that maintains a website in relation to the license’s professional practice must clearly disclose:
(1) ownership of the website;
(2) specific services provided;
(3) office address and contact information;
(4) licensure and qualifications of physician(s) and associated health care providers;
(5) fees for online consultation and services and how payment is to be made;
(6) financial interest in any information, products, or services;
(7) appropriate uses and limitations of the site, including providing health advice and emergency health situations;
(8) uses and response times for e-mails, electronic messages, and other communications transmitted via the site;
(9) to whom patient health information may be disclosed and for what purpose;
(10) rights of patients with respect to patient health information; and
(11) information collected and any passive tracking mechanisms utilized.
(b) Accountability. Licensees must provide patients with a clear mechanism to:
(1) access, supplement, and amend patient-provided personal health information;
(2) provide feedback regarding the site and the quality of information and services; and
(3) register complaints, including information regarding filing a complaint with the Texas Medical Board as provided for in Chapter 178 of this title (relating to Complaints).
(c) Advertising/Promotion of Goods or Products. Advertising or promotion of goods or products that a licensee sells outside the normal course of business from which the physician receives direct remuneration or incentives is prohibited.
I would strongly advise you to review your website to ensure it complies with this rule and the information demanded of it is complied with. You may want to consult a professional to ensure compliance.

There are new prescriptive delegation rules drafted by the Texas Medical Board and many physicians, APRNs or PAs may not be aware of the changes.  The rules apply to prescriptions, delegation by physicians, practice sites, and review of charts.  One of the big areas that can impact an APRN or PA is the requirement for registration (the forms and further info can be found on the Medical Board’s website).  Physicians that delegate prescriptive authority to PAs or APNs are required to register with the Texas Medical Board. This became effective on 1/31/2010.