A member of the board could not participate in any matter that related to a physician called before the TMB if the member received compensation from an entity other than a medical practice or had a common financial interest with, or was a competitor with the physician who was under investigation.

 Complaints before the TMB. The board could not consider or act on a complaint regarding patient care that was provided more than seven years before the complaint was filed, unless it involved the care of a minor. In the case of a minor, the complaint could be pursued until the minor’s 21st birthday or the seventh anniversary of the date of care, whichever was later.

 The TMB could not accept an anonymous complaint, and each complaint filed would have to include the name and address of the person submitting the grievance.

 The TMB would be required to provide a physician with a copy of the complaint that included a statement of the alleged violation written in plain language. It would have to be delivered by certified mail or personal delivery within 15 days of receiving the complaint. The TMB could send an additional complaint by first class mail with a confirmation of receipt if the physician rejected the original notice. The copy issued to the physician could not be delayed or redacted, unless the complaint: was filed by a patient or a legal guardian or agent under a power of attorney; posed a risk of harm to the public; or would jeopardize the investigation.

 A physician would have at least 30 days after receiving a complaint to prepare and submit a response. The schedule for conducting each phase of the complaints process would be established within 30 days of the expiration of the physician’s time to respond. The TMB would have to complete a preliminary investigation of the complaint within 45 days of the board’s receiving the complaint. The board also would be required to deliver a copy of the preliminary and final reports, including any dissenting or minority report, to the physician.

 Peer review panel. A member of an expert physician panel reviewing the initial complaint would have to be actively practicing medicine in the same specialty as the physician who was the subject of the complaint.

 Informal hearing. A physician in the same medical area as the accused physician could serve as a panelist for a randomly assigned informal hearing to determine whether an informal disposition was appropriate.

 Recording of an informal settlement conference. On request of the physician under review, the board would be required to make an audio recording of the informal settlement conference proceeding and provide a copy of the audio recording to the physician. The costs of producing and copying the recording would be paid by the physician. The recording would be a part of the investigative file and could not be released to a third party unless authorized.

 Administrative hearings. The bill would require the TMB to resolve a contested case with a final order based on the administrative law judge’s findings and conclusions. The board could not change a finding of fact or conclusion of law issued by the administrative law judge, but could obtain judicial review. For each case, the TMB would have the sole authority and discretion to determine the appropriate action or sanction, and the administrative law judge could not make any recommendation on the appropriate action or sanction.

 Judicial review. A physician whose license had been revoked would be entitled to a jury trial in a district court in Travis County.

 This bill is now in the hands of the Texas Senate with only a couple of weeks to go before the close of the legislature.  The Senate should have an up or down vote on this bill.  Given that ever House member voted for the bill, it is possible this will pass as long as it is placed on the calendar of the Senate. 

If you are interested in seeing this bill become law, you should call, write and/or e-mail your State Senator.

WHAT NOT TO DO:  answer the Board without having an attorney review your response.  It is so sad when a health care professional receives a disciplinary order due to an incorrect answer to a renewal question; so often, these violations are easy to avoid.  Sometimes a health care professional answers a renewal question in a manner which causes Board action on the answer but not on the original criminal issue.  In addition, you need someone on your side advising you regarding what actions to expect from the Board and making sure you do not agree to a disciplinary action which is not warranted.  DO NOT rely upon advice from your criminal attorney, your family, your co-workers, your boss etc.  This is not a time to risk talking to inexperienced people.  Some Board do not take action on minor criminal incidents as long as you do not try to hide the criminal incident from the Board.  For example, the Texas Board of Nursing will typically not take action on a one time shoplifting case, but if you do not disclose the criminal incident to the Board you will be deemed as being deceptive and the Board is more likely to require some type of remediation (once again there are various Board responses and which is used depends on the information provided to the Board).

WHAT TO DO:  Obtain the criminal court records and contact an administrative lawyer with experience before that particular Board.  When you call the lawyer, is the lawyer able to answer your questions or do they say they have to do research?  If an attorney practices frequently before a Board, the lawyer will know the types of questions asked by the Board and what is required to be disclosed.  This type of legal advice is not usually expensive as long as the case does not progress to an investigation before the Board and an attorney can give you estimated costs when you speak to the lawyer.

I know this response looks like an advertisement for hiring lawyers, but seeking appropriate legal advice is the best action to take to protect your license and the risk of possible disciplinary action is too great not to at least speak to a lawyer.

 Travel Reimbursement Process:  Board members fill out a claim form with receipts or indicating direct billing to TMB.   The can write down their mileage or check on the form for the finance dept. to use mapquest.

 Dismiss Cases: Question on whether DPRC can grant authority to individual board members to dismiss a case. The answer to this question is no.  This is the status of the law.  They will discuss with Mr. Bernardo to try and streamline the process.  There were over 500 investigation dismissals back in August. 

 DPRC ITEM DISCUSSION:  As far as significant numbers, are cases filed at SOAH.  This went from 10% two years ago to 25% of the cases currently.  Ideas on why they go to SOAH:  The simpler cases are being dealt with by Fast Track and reviews.  This leaves the more complicated cases and may be the reason a higher percentage goes to SOAH.  If the perception is that the Order is better/lighter and the penalty will be less if you go to SOAH, then it seems like it is a good idea to go to SOAH.  With the current case load, they would need to mediate 98 cases and they do not have enough Board members to schedule mediation days to cover the case load.  Ms. Robinson has been working with Mr. Freshour to look at their process and determine if there is anything they can do.  She would like input  from all Board members on what is valuable about mediation and what is not.  Mr. Freshour will talk with his staff to get their perspective.  They will come back in February with a report.  Question about whether they can make it standard that they start meditations after lunch.   Mr. Turner:  When we reserve mediation and a judge, we may feel that we need to take all day.  We can go in with the intent to only take four hours.  Dr. Crocker on Standard Of Care cases, some of the reviews are “Ivory Tower” ; “University approach” reviews and they are not the true standard of care.  Ms. Robinson:  When we get a Medical Director in, we can start looking at these issues. 

 Retirement of License with Active Investigation:  One change, when someone checks on registration that they have an impairment, the TMB sends them the option to retire.  Spoke to PHP, if somebody does not want to retire, when it is a physical impairment, they will refer to PHP.  PHP can offer an agreement to terms and conditions, once the licensee signs the agreement.  The PHP can write to TMB saying the issue is resolved.  They will send to DPRC for dismissal.  Can say agree to retire license within 30 days of the closed investigation.   They will have two opportunities to retire license before disciplinary action is taken.  One glitch is the $1,200 fee.  Robinson:  the PHP does not have to charge every single person $1,200.  They could make a written exception that says anyone who gives up license in it’s entirely within 30 days, can reduce the fee.   The Board can draft a carefully written letter to PHP asking them to consider this.  Or, TMB can pay the $1,200.  This past year, the TMB covered the PHP’s 5% cut so they could continue to operate.  This situation only occurs about 20-30- times a year.  Mr. Turner:  they have the option to request statutory change to dismiss these cases after investigation.  He has an issue with respondents or the Board paying the $1,200.  Three things to know:  1) cannot rely on any legislation passing this session; 2) even if passed, cannot take effect for one year. 3) there was purpose behind this law.  Motion passes.

 Proposal for Decision on Randy Ramahi, D. O.  Tom Walston, ALJ.  Seek revocation o f license.  Self prescribing medications while license was restricted and DEA/DES  had expired.  Has not practiced since 1997.  Has a chronic back problem, which resulted in hs self prescribing.  Doctor has six Board Orders.  Heisler:  All of violations are drug related, mostly for self-prescribing.  Dr. Ramahi, states he is sorry this happened.  The Board did not give him any alternatives.  It was the opinion, The respondent is unrepentant and unlikely to change his ways. 

 Termination Request of Non-Public Rehabilitation Orders:  Pulled order.  Charged with indecent exposure in 2006.  Had initial order requiring a chaperon in all exams, polygraph tests, reports from supervisor and seeing therapist.  Order Dec. 2008.  He is back asking for modification.  Removed chaperon requirement and polygraph and report from supervisor.   His indiscretions were not practice related according to Dr. Arambula.  Move to deny request. Passes.  Motion to approve all remaining Orders.  Passes.

 Agreed Board Orders: Dr. Holiday pulled order.  Dr. Shulkin was on the panel.  A consent form issued,  Dr. Holiday questioned the necessity of requirement of JP exam, as well as CME in record keeping.   Allow as is.

 Dr. Oswaldt pulled case.  Respondent was sanctioned for prescribing dangerous drugs over a ten year period of time.  The Order does not have prohibition on writing scripts for family.   Moved to add prohibiting self prescribing and to family.  Oswaldt withdraws motion after explanation.

 Dr. McMichael pulled case.  Physician who neglected to take care of prenatal glucose and obesity, did not address patient’s complications, did not perform C-section on a timely basis, which ultimately resulted in fetal demise.   She wants to add public reprimand.  Suspended from hospital until he completed CME .  Motion to add public reprimand.

 Board Rules:

Chapter 164 Physician Advertising, 164.4 Board Certification

Testimony begins at 11:00 AM  ends at 1:00 PM

President of ABEM – disagree with the grandfather clause.

John Becker, D.O. – American Osteopathic  Assoc. – wants to define the word “substantial” and exclude specifically experiential experience.    Supports stronger rules regarding advertising.  The AOA is currently developing an online resource to verify Board Certification. 

 Joe Nixon –  American Board of Physician Specialties.  Encourages Board to remember comments made by him to the Board in letters.  Wants to remind the Board that there is no evidence that any patient in this State has been harmed by misleading advertising.  Asked Board to please consider how this will affect doctors in rural Texas.  This is not a win/lose situation. 

Ms. Robinson:  in rule change the Certifying Board would seek approval from the TMB, if they can show they meet the requirements of (b). 

William Carbone, President of ABPS.  Believe there should be criteria for limiting who can say they are Board Certified.  Feels  the Rule should remain the same.  No ABPS physician has been disciplined by the Board.  Feels the organizations who want to discredit ABPS. 

Compton Broaders, representing himself.  Speaking for emergency medicine.  Has written many memos to TMB.

Ernest Stroop with ABPS.  20 yr ER physician.  Changing rule would be bad for medicine and patients.  There are not enough physicians to staff programs. 

 Sandra Snyder, President of American College of ER physicians.  Would like request that j TMB remove section (i).

 Nathan Deal,  ER Resident and member of ER Resident Association.  Speaking against section (i) and request removal of this clause.

 Otto Marquez, practicing ER medicine for 20 years.  Addressing Mr. Webb’s comment from last meeting that this is a “turf war.” 

 Robert  Petrala, MD,   wants to demonstrate that this is a workforce issue and why is ER medicine being excluded.

 Tom Sartwell, lawyer from Houston.  Here to speak for 25 million patients in Texas.  Proposed Rule change makes no sense to the Public .  It is based on biases.   There is no evidence, no patient complaints. 

Kevin Weiss President of American Board of Medical Specialties.  Support the changes.

 To clear up confusion on  164.B.  They will add physicians or physician based certifying Boardson behalf of their members.  Dr. Crocker moves for approval of the rule change with the non-substantive change in language listed in the previous sentence and underlined.   Motion passes by 12 in favor.  Southard and Turner wanted previous rule to stay.

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.

§108.9.Dishonorable Conduct.

The dishonorable conduct section is intended to protect the public from dangerous, unethical, and illegal conduct of licensees. The purpose of this section is to identify unprofessional or dishonorable behaviors of a licensee which the Board believes are likely to pose a threat to the public. Actual injury to a patient need not be established for a licensee to be in violation of this section. Behavior constituting dishonorable conduct includes, but is not limited to [A licensee is in violation of this rule if he or she]:

(1) Criminal conduct–including but not limited to conviction of a misdemeanor involving fraud or a felony under federal law or the law of any state as outlined in Chapter 101 of this title.

[(1) Aids or abets in the violation of a criminal statute or participates in a conspiracy to procure (by corruption, fraud, misrepresentation, or bribery, or both) a dental license for an unqualified person.]

(2) Deception or misrepresentation–engages in deception or misrepresentation:

(A) in soliciting or obtaining patronage; or

(B) in obtaining a fee.

(3) Fraud in obtaining a license–obtains a license by fraud or misrepresentation or participates in a conspiracy to procure a license, registration, or certification for an unqualified person.

(4) Misconduct involving drugs or alcohol–actions or conduct that include, but are not limited to:

(A) [(2)] providing [Provides ] dental services to a patient while the licensee is impaired through the use of drugs, narcotics, or alcohol ;[.]

(B) addicted to or habitually intemperate in the use of alcoholic beverages or drugs;

(C) improperly obtained, possessed, or used habit-forming drugs or narcotics including self-prescription of drugs;

(D) [(3)] grossly [Grossly ] over prescribes, dispenses, or administers narcotic drugs, dangerous drugs, or controlled substances;[.]

(E) [(4)] prescribes [Prescribes ], dispenses, or administers narcotic drugs, dangerous drugs, or controlled substances to or for a person who is not his or her dental patient;[,] or [not for a dental purpose.]

(F) prescribes, dispenses, or administers narcotic drugs, dangerous drugs, or controlled substances to a person for a non-dental purpose, whether or not the person is a dental patient.

(5) Assisting another in engaging in the unauthorized practice of dentistry or dental hygiene–holds a dental license and employs, permits, or has employed or permitted a person not licensed to practice dentistry to practice dentistry in an office of the dentist that is under the dentist’s control or management.

(6) Failure to comply with applicable laws, rules, regulations, and orders–violates or refuses to comply with a law relating to the regulation of dentists, dental hygienists, or dental assistants; fails to cooperate with a Board investigation; or fails to comply with the terms of a Board Order.

(7) Inability to practice safely–is physically or mentally incapable of practicing in a manner that is safe for the person’s dental patients.

(8) Discipline of a licensee by another state board–holds a license or certificate to practice dentistry or dental hygiene in another state and the examining board of that state:

(A) reprimands the person;

(B) suspends or revokes the person’s license or certificate or places the person on probation; or

(C) imposes another restriction on the person’s practice.

(9) Failure to comply with Medicaid, insurance, or other regulatory laws–knowingly provides or agrees to provide dental care in a manner that violates a federal or state law that:

(A) regulates a plan to provide, arrange for, pay for, or reimburse any part of the cost of dental care services; or

(B) regulates the business of insurance.

(10) Improper delegation–improperly delegates any task to any individual who is not permitted to perform the task by law, this chapter, or practice restrictions imposed by Board Order.

[(5) Indicates a fee for dental services on an insurance or other third party reimbursement claim form which is other than the fee which the dentist expects to collect for services rendered.]

(11) [(6)] Unprofessional conduct engages–[Engages] in conduct that has become established through professional experience as likely to disgrace, degrade, or bring discredit upon the licensee or the dental profession.

Recently, I have received several inquiries regarding “setting aside board orders.”  This cannot be done and this is misinformation.  While criminal incidents can sometimes be expunged or sealed, administrative actions currently cannot be removed from one’s license.  Once a disciplinary action occurs, the history remains even once the “probation” is complete.

1.  Make sure you have malpractice insurance so that you have the financial resources to go to a hearing if you do not agree with the BON’s decision in your case.

2. When looking for a job, ask everyone you know for help in finding a job.  It tends to be easier to get a job if someone is on the “inside” vouching for you and your skills.  There are also employers out there that understand that most nurses with a Board Order are not “bad” nurses; that the nurse just made a mistake, or was overworked/understaffed, or had a disease relapse etc.  These employers recognize that most nurses that have had a Board Order become extremely cautious nurses and become definite assets to the facility.

3. Make sure that you have an experienced and BON knowledgeable attorney assist you with your case before the BON so that you get the best outcome possible.

4. You must present a professional appearance (this includes your resume, your social networking site pages, and any application you complete).

5. Contact your state senators and representatives and ask them to make some changes for the next legislative session in 2011.  Some areas that need changes: expand the corrective action provisions to apply to minor practice violations, allow non-public orders for mental health issues and substance abuse (these are diseases, so why allow the publicity?), allow deferred adjudications to be just that and not be considered a conviction by the BON, and change the language in the NPA from shall to may to allow the BON leeway to make determinations based on mitigating factors.   As 2010 progresses, I will probably think of more…

I also have more info here:  http://nursinglaw.blogspot.com/2009/07/how-to-explain-past-board-orders-to.html