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.

 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.

 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

http://www.npr.org/templates/story/story.php?storyId=120346411

 I point of the story in relation to what I do is with regard to open and frank communication with patients, documenting both the education and the decisions made, and following through; with the knowledge that patients do change their minds, so the dialogue and the documentation must evolve with the patient.

1.         A documented medical history and physical examination, including an assessment and consideration of the pain, physical and psychological function, any history and potential for substance abuse, coexisting diseases and conditions, and the presence of a recognized medical indication for the use of a dangerous drug or controlled substance.

In my experience included in this history and examination, the physician should review and have copies of all prior treatment records.  You need to have a documented pain scale.  In some cases, a psychological evaluation is warranted and should be a common treatment tool.  A written inquiry to local pharmacies and documenting this investigation is good protection if you are not sure.  The physician should exhaust non-controlled substance options first:  steroids, PT, OMT, and the like.  If the patient has immediately rejects this notion, you need to ask why?  What have the other physicians said and why?  What were the past treatment options for the patient, and were they followed?  If so, what were the results? If not, why not?

2.         A written treatment plan individually tailored to the patient that can objectively measure results, including but not limited to pain relief and/or improved physical and psychosocial function.  This treatment plan must consider pertinent medical history and physical examination as well as the need for further testing, consultations, referrals, or use of other treatment modalities.  This treatment plan should have both objective and subjective treatment goals. 

Part of this individualized treatment plan should be a pain contract.  Within this contact, the patient must agree that you will be the only physician to prescribe pain medications except in emergency situations, defined to mean only hospitalizations.  That the patient agrees to fill prescriptions at only one specific pharmacy of their choosing, agreed upon by the physician.  That lost medications or medications taken before the refill period will not be replaced but for emergency situations.  That if the physician makes a referral to other physician or for a diagnostic study, the patient must do so.  Failure to follow these guidelines will result in the physician firing the patient with 30 days notice a referral to three or more physicians, or refer them to insurance provider 

A normal check up schedule should be followed, with appropriate physical examinations and diagnostic studies.  All consultant reports, labs and studies must be included within the patient record.  Occasional inquiries to the designated pharmacy and to others in town should be done to ensure compliance with the contract.

 3.        The physician should discuss the risks and benefits of the use of controlled substances with the patient or guardian. 

This must be well documented in the medical record.  A statement of “patient educated” is not enough.  If the patient or family members have questions, answer the questions, and attempt to document the general tone and response to the questions.  It is even better to follow-up on such a Q &A session with a letter to the patient and/or family regarding these issues.  The letter must be included in the medical record.   At this counseling session, basic written information should also be provided.  Even if should action is basic protocol for your office, I would recommend this be also included in the medical record.

4.   The progress of the patient should be noted at reasonable (regular) intervals to evaluate the treatment objectives.  As the subjective and objective progress or regress of the patient should be evaluated and the individualized treatment pain can and could be modified, including any new information about the etiology of the pain.

As noted before, the patient should be seen a regular intervals.  I would recommend on a thirty day cycle.  This will allow you to control the prescriptions and not have to rely on refills.  It controls access to the medications all the while allowing you to see the month to month status of the patient. 

5.         Complete and accurate records of the care provided must be kept.  When controlled substances are prescribed, names, quantities prescribed, dosages, and number of authorized refills of the drugs should be recorded, keeping in mind that pain patients with a history of substance abuse or who live in an environment posing a risk for medication misuse or diversion require special consideration. 

This can become a record keeping nightmare.  A good method to comply with this provision is to photocopy the prescriptions and place it in the medical record itself.  For patients at higher risk for substance or possible diversion, document whatever safe guards utilized to continue to have the controlled substances are used for the legitimate medical purpose.  This includes counseling, charting by the patient, drug screens, and the like. Again, the key is to document.

This is merely a brief outline.  It is critical to review Board rule 170.  If you plan to work in the area of chronic pain, review the rules often, consult with an expert on your documentation, and take annual CME in this area.

TMB is demanding that doctors justify what you are doing.  Your medicine may be right, but if you don’t show the “why” some Board consultants, members and staff will find your records are deficient.  I liken this to Eight Grade math.  Take  144  ÷  12 , you know it’s 12.  Well in Eight Grade math, the teacher would mark you wrong because you didn’t show your work.  If you have written

12

12 /    144

144

0

That would be right because you showed your work.  Think about this with your medical records.