The two big issues that are still unsettled is how to deal with licensees who agree to cease their practice altogether.  The Medical Board and the Texas Physician Health Program are working on finding a method that permits a physician to cease practicing without a form a public disciplinary action.  The second issue is how to appropriate deal with people who have “dual issues:” An impairment issue that is more appropriately handled by the Texas Physician Health Program and some other issue that the licensing Board wants to handle with public disciplinary action.  Again, this is something that agency staff and the Texas Physician Health Program are attempting to determine the best method to proceed.  Some resolution to these issues should be determine in early February.

1.  Texas Physician Health Program.   Dr. Garland introduced Dr. Alison– practicing psychiatrist – took over from Dr. Jackson .   316 total referrals including self referrals and by TMB.  184 active participants.  72 reported back to TMB.  Talking to several about retiring their licenses.  These will come under a short agreement to conclude an investigation.

8 pending transfers from TMB to TX PHP.  47 brought to attention but have not interviewed.

$170,888 budget  included 31% benefit package for salaried employees. Dr. Garland elected not to participate in that in order to remain in budget.  The figure will be larger for the next fiscal year.   $43,553 returned to general funds.   Ms. Robinson suggests the PHP needs some political help in getting their budget secured and set up a meeting with Melissa in Senator Nelson’s office.  The request will need to come from the PHP and Ms. Robinson will go with them.

PHP would like to allow screens to be done as late as the lab is open (even if it is midnight).   The rule was put in place to prevent physicians from delaying a screen in the hopes of allowing the alcohol to metablolize.  This is not a problem with the EtG results.  Motion to staff to gather information to present at the February meeting to allow Board members to make an informed decision on extending the deadline.  They will research the results with all drugs tested for.

 ENFORCEMENT REPORT

Close out for FY 2010.  Received approx same number of complaints.  6968 in 2009;  6849 in 2010.  Did not open as many complaints, down  by 200.  1700 cases active pending.  Highest ever in October.  The probable cause is the hiring freeze and not enough experts to review the cases; this caused a slow down in processing.

Litigation – put the quality assurance in place.  There were 100 less ISC’s than in 2009.  75 more cases were received into legal.  Appears that the Quality Assurance panel is working. 

 Formal complaints filed  at SOAH were  70 in 2008;    82 in 2009 and  141 in 2010.   Dr. McNeese asks if the outcomes of the ISC are harsher?  Ms. Robinson does not feel this is the case.  She feels the physicians choose this because it takes longer.   Mr. Freshour, Litigation Manager and Ms. Robinson monitor case timelines.  She also offered that respondents feel they will get a lesser settlement.   Numbers of probationers has remained the about the same at 820 in 2009  and  803 in 2010.  Is there a way to come to a settlement that will be feasible under their rules.    TMB has told SOAH that if Licensure has determined not eligible or they feel they need to revoke a license and there is not another option, they will not mediate. 

Ms. Robinson feels that they need to reevaluate what they want to get out of mediation and to leave all pre-conceived notions behind and think outside the box.  She would like DPRC members to give her what their impressions are about mediation. 

Changes to Rule 187 – Procedure Rule:  One judge at SOAH asked why revocation cases are coming to SOAH – why are they not being handled at the TMB.  Statute says, if they are incarcerated or initially convicted, a suspension order can be issued while it finishes out the disciplinary process.  Does the Board want to bring forth the same process for revocation?  This process would allow them to revoke a license more rapidly.  The perception of the public is that it is difficult for them to understand how a physician who is convicted of a felony remains in practice.  She also said that a percentage of Physicians who get revoked in a ISC type hearing .  Motion to adopt A-D changes.  On E – motion to reject changes.  Ms Attebury and Dr. McNeese oppose the motion.

 Changes to Observed Screening:  Item 5  change observed urine screen to  “can waive right to same sex observer because there is none available at that clinic and they do not want to change clinics for proximity reasons.  Motion to change rule to allow physician to chose an opposite sex observer.

Reporting Requirement: Law requires a report to the Board on cases that are over one year old.  There are 750 cases.  All cases that have a 09 file date.  A large share are at SOAH.  This number is up by 300 from last year and it is due to backlog in expert panel reviews.   350 outstanding cases waiting for panel review.   100 are waiting for orthopedic review, especially spinal.  The next largest is pain management.  Some respondents have up to ten investigations against them. 

Office Based anesthesia.  The Board was given samples of the reports they receive.  It is a one page report.  The only thing happending now is the reports get filed under “O.”  Directions to staff.  When a new Medical director is hired, they should review these reports.

 Transition of Care: Dr. McMichael spoke with the Hospitalist Association in Austin.  Isabel Hoverman –  The Joint Commission started to write a rule and there were too many parts.  Center for transfroming Health Care – trying to improve guidelines on things like:  hand hygiene, handing off from the ER to the floor.  No action is being taken at this time because is it being looked into nationally by the Joint Accredidation Commission.

 Dr. Garland did discuss the use of Purell and whether it will test positive with EtG.  He stated it could.  An example was given of a group of doctors sat in a room using Purell and then did urine screens.  They all tested positive for Etg.

 Dr. Garland has asked the Board not to refer cases involving sexual misconduct to the PHP.  While the PHP agrees such individuals need monitoring; the PHP does not have the expertise to handle such cases.  Dr. John Jackson, the PHP Chair, suggests that PHP needs to focus on recovery for drug and alcohol abuse.

 Dr. Jackson has tendered his resignation as presiding officer on the Board, but will still serve as a Board member.  Alison Jobs to take over for as the chair.

Dr. Zeitler, the president of the Board,  stated the TMB rules state you cannot prescribe to an adict.   Ms. Robinson, the executive director also stated doctors need to look at Rule 170.  Further, she reminds that the statute says doctors cannot prescribe to anyone who is a know drug abuser.  There are no exceptions.

Sec. 301.4551. Temporary License Suspension for Drug or Alcohol Use.

The board shall temporarily suspend the license of a nurse as provided by Section 301.455 if the nurse is under a board order prohibiting the use of alcohol or a drug or requiring the nurse to participate in a peer assistance program, and the nurse:

(1) tests positive for alcohol or a prohibited drug;

(2) refuses to comply with a board order to submit to a drug or alcohol test; or

(3) fails to participate in the peer assistance program and the program issues a letter of dismissal and referral to the board for noncompliance.

[Added by Acts 2009 (H.B. 3961), 81st Leg., eff. June 19, 2009]

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