When I read the article and the editorial I knew that many people will cheer the limiting of licenses to those with criminal histories, but I think they tend to focus on horrific crimes and don’t realize the impact made on people who commit crimes due to a lack of knowledge or because they are young or with the best of intentions.  If you do not speak to such people daily, then you cannot know the heartache and problems for the licensee or the ultimate ramifications for the public.  What about a licensee who is wrongly accused (it happens more than you think:  bad investigations, witness lies, evidence corrupted) and then convicted (Oh, and it does not matter the licensee received deferred adjudication since some regulatory boards consider deferred adjudications as convictions.).  A situation I have seen over and over is during a divorce or custody hearing, one of the spouses accuses the other of some crime and then lie or plant evidence; the other spouse is sure the law will find on their side since they are obviously innocent, but the legal system does not always work that way, so the innocent ex-spouse is now facing an investigation by the regulatory board.  The criminal incident has nothing to do with the licensee’s profession, but the licensee is investigated then disciplined and  loses their job and is now on public assistance because no one wants to hire them.  It happens again and again, professionals attempting to find work outside of their profession will not be hired because the potential employers think they will leave too soon, are too over-qualified, will challenge them for their position etc and a highly educated professional remains unemployed.

Mr. Dexheimer discusses so many cases where the state’s result does not appear to be justified; that there is no nexus between the criminal charge and the practice of that particular profession.   One of the examples involves pharmacist Emmanuel Kanu who lost his pharmacist license, not because of patient care issues or as a result of actions which could harm the people of Texas (potential patients/clients), but because he did not complete the proper documentation when he sent donated medications to a clinic in a third world county.  Mr. Kanu, a pharmacist with no patient care issues for 17 years, is now removed from being able to care for the Texas public for 10 years; how is this outcome reasonable or just? Would one consider Mr. Kanu to be a criminal?  Is his failure to submit the proper documentation in order to send these medications so heinous that we need to waste tax payer funds to convict him and then remove him from the professional workforce?

I also fear the public will ignore the message of this article (and the subsequent editorial) because it deals with “ex-cons” or those with criminal incidents when the message is so much more–the regulatory agencies are vested with great power and there can be an unfair and unjust tendency to abuse and overuse that power; once again, it depends on the individuals within the agency–there are some excellent staff members who warrant great respect, but there are also some who are not protecting the public, they are just punishing.

The problem our attorneys face is most licensees cannot afford to fight the regulatory boards and they are faced with accepting discipline which is not warranted or in some cases, even legal.  But, it is not clear sailing for those licensees that do choose to fight because as seen in Mr. Dexheimer’s article,  like Mr. Kanu, the licensee pays the money to fight the regulatory board, the licensee wins at the State Office of Administrative Hearings (SOAH) only to have the case overturned by the regulatory board.  This is such a wide spread problem that our attorneys testified during the last Legislative session urging Texas lawmakers to support a bill which would make SOAH decisions final and if either party wanted to appeal at district court, they could do so.  Making SOAH decisions final avoids the “second chance at the licensee” actions which occur now when boards overturn SOAH Judge recommendations.  Making SOAH decisions final levels the process and makes it fair for all involved.

These are problems which should be addressed and the regulatory system, if it is going to be vested with so much independent power, should be fair and just and able to stand up to scrutiny.  Ask yourself, who is on the side of the licensee?  Who is making sure there are enough professionals to provide care to the people of Texas?  Is the system driving good professionals out of practice or turning them into cynics who no longer see the benefit in caring?  The public, the boards, and licensees need to be aware of all sides of a situation; not jump to conclusions; and consider the ultimate impact on all.

 However, there is a strict prohibition about prescribing controlled substances to immediate family members unless it is a documented emergency, cannot get treatment elsewhere, and only for 72 hours.  At the February Board meeting, some Board members were discussing what “immediate family” means.  They decided “immediately family means up to a second degree separation, so it would include spouse, children, parents, brothers, sisters, step-children, aunts, uncles, and cousins.  It would also include step-family members.

 Under the law, if a physician is being investigated for their condition, the Board cannot (in staff’s opinion) allow that physician to voluntarily retire their license.  In order to do so the Board must issue a public disciplinary order to do so.  This is not an outcome many physicians want to do.  Under this new agreement, the Board will refer such individuals to the PHP and under this agreement, they commit to immediately retire their license.  In so doing, the PHP will waive the annual $1200 fee.   Of course, there is a stick.  If the doctor does not follow through with submitting the paperwork to retire his or her license, the Board will then take public disciplinary action. 

 The reason “retired” is being used in this manner is retired is a public status.  It allows the public and other entities to know this doctor is not legally permitted to practice medicine.  The benefit to the doctor is that this is a non-disciplinary status.

1.  Email addresses.   Physicians required to provide phone, fax & email for emergency information notices.   They ask on registration if physicians would like to receive email info.  They had a 30% positive response.  Wanted to reword to say:  “ May we use your contact information for non-emergency situations such as the TMB Newsletter?”  Dr. Arambula suggests:  check this box if you do not want to receive information from us. Dr. McMichael suggests:  if you want to receive Newsletter, check here.  The newsletter is only online.  Ms. Robinson suggests:    It needs to be an opt in situation due to the nature of the Legislative bill Limiting communication from TMB to emergency use only.  Suggests also to confirm with Senator Nelson the intent of the bill and getting her approval on the wording.  Dr. McMichael motions “if you do not wish to receive the TMB newsletter or other communications, please check here.  Please note the TMB Newsletter is not available by regular mail.
2.  New wording regarding death certificate registration.  Changed language to include the word Mandatory and Required in bold.  Will replace the old wording on November 6^th.   Dr. McMichael suggest that wording needs to be included  that states that if you wait till a patient dies, you will not be able to respond within the dealine.    They are only allowed so many chages to Texas online per year without incurring a charge.  This has already been submitted and any chages would require a fee.  Agreed to leave as is. 
3. Open Records requests – Avg. over 12 months is about 90 per month,  last 6 months 98 avg.  1,023  for last 12 months.  There is a full time person dedicated to fulfill open records request and another person who helps.  The problem is many people use this process to bolster their defense case, rather than the original intention of helping or protecting the public.   If open records requests continue to rise, their only resource is to re-assign a current staff person.    They discussed earlier in the year identifying the top five people and charging them an hourly rate.  In order to accomplish this they would spend so much time calculating, that it would become more burdensome.  They do not have to provide documents that are available publicaly, such as Agreed Orders which can be accessed online.  Requesters are directed on how to access online.  They probably use the manpower of two full time FTE’s.  The intent of this agenda item is to keep the Board members aware of the situation. 

Requests were received asking about which legislators had requested information about TMB applicants.  TMB sent a request to AIG asking if this was confidential information.  The AIG’s response is due in November.

 Outreach Program Plan

C urrently  attendance was 7-75 attending.  Reformatting and in September taking one week to go to all the schools.  They will change the format to a game show format.  UTSA is willing to assist.  They are creating online information sessions for 3^rd & 4^th years.  Study has shown the best time to interact with medical students is in the first year before they becme afraid of the TMB.  They will ask each school to guarantee a certain number of attendees.  TMB offers CME credit to attend the licensee portion of the Outreach sessions.   Dr. Holiday complained that trial lawyers come to his hospital and talk about what the licensee needs to be aware of.  He is eager to have someone from TMB come and give the other side of the story – he applauds Ms. Robinson’s efforts to restructure the Outreach.

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.

What is the TMB doing with rehab cases that either have not yet had an ISC or do not have an Order which will be ready by the November meeting? There must be several of these.

Currently, the plan is review each case individually as the investigation is resolved. Then determine if there are any criminal concerns, diversion of narcotics or harm to patients as a result of the addiction. If the answer is no, they will likely be referred to the PHP once it is operational. If the answer is yes to those questions, those investigations will be sent to an ISC for a disciplinary hearing. If the ISC Panel agrees there is one or more of those problems, then those individuals will be subject to a public disciplinary order by the Board. Of course, as the PHP is still in its development stages and the Board still is not fully sure how it is all going to work, all of this is subject to change.

Being a friend, employer, good colleague, or even a family member, you want to make that person happy. You do not want to appear unwelcoming or unable to help this person. The reason physicians choose this demeaning profession is to help people, but at the same time, protocols were established both to help the patient and the physician.

In engaging in a hallway consultation, one arguable establishes a physician-patient relationship. A physician-patient relationship is created a patient consults with a physician or receives medical care, and the patient reasonably believes that a consultation, examination, diagnosis or treatment took place. Therefore, whether a relationship was established is depended on what the patient thought, not what the physician thought or even if money was changed hands.

Providing a diagnosis, recommending treatment, or providing a prescription opens the genii’s bottle on what could occur. If someone walked into one’s office, and make a complaint, a reasonable physician would not provide a diagnosis, treatment or prescribe medications without a history and physical, and not making a record of this treatment. However, by providing a diagnosis, treatment or prescribe medications to someone in an informal setting, that is what you are doing. Without the proper information, one would provide incorrect diagnosis, treatment or prescribe the wrong medication.

Unlike most states, prescribing for yourself or family members is not against the law in Texas. The fact that there is not a law against it does not mean it is advisable. In fact recently, the Texas State Board of Medical Examiners instituted a rule (22 TEXAS ADMINISTRATIVE CODE §190.1(c)(1)(L)(M)) on prescribing habits that are not in violation to the Medical Practice Act.
Generally, the Board requires that one must first establish a proper professional relationship with the patient prior to prescribing either dangerous drugs and/or controlled substances. A proper professional relationship requires the following:
a. establishing that the person requesting the medication is in fact who the person claims to be;
b. establishing a diagnosis through the use of acceptable medical practices such as patient history, mental status examination, physical examination, and appropriate diagnostic and laboratory testing. An online or telephonic evaluation by questionnaire is inadequate;
c. discussing with the patient the diagnosis and the evidence for it, the risks and benefits of various treatment options; and
d. ensuring the availability of the physician or coverage of the patient for appropriate follow-up care.
If the person in question is oneself, a family member, or a “close personal relationship,” requires:
a. prescribing or administering dangerous drugs or controlled substances without taking an adequate history, performing a proper physical examination, and creating and maintaining adequate records; and
b. prescribing controlled substances in the absence of immediate need. “Immediate need” shall be considered no more than 72 hours.
Failure to follow these guidelines may lead to disciplinary action by the Board. It could lead to malpractice suit. Notably, some malpractice carriers will not cover negligent acts that took place outside the traditional practice setting.
The wise thing to do is to refuse to do any hallway consultations. Rather, you can ask the individual to come to your office and formally make them a patient of yours. You are not required to charge the person, but you should treatment them as a new patient. The person should complete a history, should undergo a physical, appropriate diagnostic testing, and documenting all that took place.

As we learn more, we will have more positing on this exciting change.