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.

 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.

 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.

 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.

 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

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.