Julie K. Attebury of Amarillo is a senior business consultant with the West Texas A&M University Small Business Development Center. She is a past member and past co-chair of the Governor’s Commission for Women, past board member and past president of the Amarillo Independent School District, and the 2005 award recipient of the Amarillo Globe News Woman of the Year. Attebury received a bachelor’s degree from Rice University and a Master of Business Administration from West Texas A&M University. She is being reappointed.

Stanley Wang of Austin is a clinical cardiologist and director of legislative affairs for Austin Heart. He is a member of the American Heart Association, American Society of Nuclear Cardiology, and Travis County Medical Society. He is a delegate of the Texas Medical Association, a councilor of the Texas Chapter of the American College of Cardiology, and vice chair of the TEXPAC Board of Directors. He is also a volunteer speaker with Go Red for Women and a volunteer with the Championship Hearts Foundation. Wang received a bachelor’s degree from the University of Texas, a medical degree from the University of Texas Southwestern Medical Center at Dallas, a law degree from the University of Pennsylvania, and a master’s degree in public health from the Harvard University School of Public Health.

George Willeford III of Austin is a physician and founding partner of Austin Gastroenterology. He is a member of the Texas Society of Gastroenterology, American Gastroenterology Association, and Texas Medical Association. He is also a member of the Austin Heartgift Board of Directors, and a past board member of the Travis County Blood Bank and Austin Center for Attitudinal Healing. Willeford received a bachelor’s degree from the University of Texas and a medical degree from Southwestern Medical School. He is being reappointed.

Irvin Zeitler of San Angelo is vice president of medical affairs at Shannon Medical Center, and a staff physician at the Shannon Minor Emergency Treatment Center. He is chair of the Shannon Medical Center Pharmacy and Therapeutics Committee, and a member of the Trauma and Quality Management Committees, American Academy of Family Practice, Texas Medical Association, Concho Valley Medical Society, and Texas Osteopathic Medical Association. He is board certified by the American Board of Family Medicine. Zeitler received a bachelor’s degree in pharmacy from the University of Texas, a master’s degree in healthcare management from the University of Dallas, and a doctorate of osteopathy from the Texas College of Osteopathic Medicine.

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.

Applicants were required to take an English Proficiency test and the Board made an exception to this if the applicant could prove the course of study was  conducted in English. This will formalize the Board’s historical practice in rule.

 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.

The rules are not strictly limiting;  according to the Board’s posted rationale, “It should be noted in this example, however, that a nurse who works in a cardiac unit is not necessarily limited to such specialized continuing education courses under the adopted amendments. A cardiac nurse could complete continuing education courses covering a wider range of topics, provided that the courses are designed to enhance, enrich, and update the knowledge and skills she reasonably utilizes in her area of practice. Examples include courses related to patient assessment, kidney function, the healing environment, progressive care, diabetes, depression, medication administration, nutrition, the safety and efficacy of needless IV access, nurse/patient interaction, pain management, and infection control, just to name a few. A cardiac nurse must be knowledgeable and skilled in all types of issues that may affect her patient care. Each of these courses contain information and material that is reasonably designed to enhance a cardiac nurses’s ability to identify, recognize, and react to such issues. As such, a cardiac nurse could complete any of these courses in order to demonstrate her continuing competency. Further, this example is not meant to limit the types of continuing education courses that a cardiac nurse could complete under the adopted amendments. Any continuing education course in which a cardiac nurse learns about new technology or treatment regimens that are relevant to her practice area or any course which is designed to update or enhance her clinical skills will meet the adopted requirements. The completion of such continuing education courses should result in a better quality of care for her patients because the information she receives as part of those continuing education courses directly relates to the issues she encounters regularly in her area of practice, and her skills and knowledge should better reflect a mastery of that information.”

 Rule 75.25  Impaired licensees and applicants—Broadens the range of records and criminal offenses the Board can use in order to determine if  probable cause exists for requiring a possibly impaired licensee or applicant to undergo a mental and/or physical examination.

 Rule 80.3  Amendment to  clarify fees that may be charged by a licensee for certifying records that are released to patients or to third parties.

 Rule §71.19, concerning Criminal History Evaluation Letters, without changes to the proposed text as published in the July 9, 2010, issue of the Texas Register (35 TexReg 6014) and will not be republished. The new rule is adopted to comply with the requirements of House Bill 963, allowing persons who are enrolled in chiropractic school or who are considering enrolling in a chiropractic school to request a letter from the Board concerning the possible effect of the person’s criminal history on the person’s ability to obtain a license after graduation.

 Rule 75.7 The amendment sets a fee of $150 for the request of a criminal history evaluation letter, as authorized by House Bill 963.

Proposed Rules of Practice – Scope of Practice The Texas Board of Chiropractic Examiners (Board) proposes an amendment to §75.17(c)(3), to add a new subparagraph (C) this amendment with an increased requirement that, in order to administer this test, a licensee must have received a diplomate in chiropractic neurology and successfully completed an additional 150-hour post-graduate specialty course in vestibular rehabilitation.

Adopted Rules Applications and Applicants – Approved Chiropractic Schools and Colleges The Texas Board of Chiropractic Examiners (Board) adopts an amendment to §71.5,

The adopted amendment clarifies that bona fide reputable chiropractic schools are those accredited not only by the Council on Chiropractic Education (CCE), but also by other chiropractic educational accrediting bodies that are members in good standing with the Councils on Chiropractic Education International (CCEI). CCE is the American component of CCEI, so American schools currently considered to be “bona fide reputable chiropractic schools” will not be affected by this amendment. The Board has determined applicants from foreign chiropractic schools accredited by CCEI member accrediting bodies should be allowed to be licensed if the applicants meet all other licensing criteria in the state of Texas. Section 201.302 states that an applicant must be either a graduate or a final semester student of a bona fide reputable doctor of chiropractic degree program. Section 201.303 sets forth parameters for determining what qualifies as a bona fide reputable doctor of chiropractic degree program 35 TexReg 5557-58

 Adopted Rules Licenses and Renewals – Renewal of License The Texas Board of Chiropractic Examiners (Board) adopts an amendment to §73.2,

§73.2 The adopted amendment adds subsection (j), which deals with information required to be furnished by licensees to the Board pursuant to license renewal applications. language MOVED FROM 80.3(G)

 Adopted Rules of Practice – Spinal Screening The Texas Board of Chiropractic Examiners (Board) adopts new §75.23, concerning spinal screening, to set forth the minimal standards for conducting out-of-facility spinal screenings, such as at a health fair or other community event. The new rule provides standards for the training required of persons conducting out-of-facility spinal screenings and for the information that must be provided to the public at such screenings. School spinal screenings would still need to be conducted in compliance with DSHS rules and guidelines.

 Adopted Rules of Practice – Impaired Licensees and Applicants Texas Board of Chiropractic Examiners (Board) adopt new §75.25, establishes criteria for when the Board can require an impaired licensee or applicant to undergo mental and/or physical examination. Previously, this information was contained in §80.3, which deals with requests for information and records from licensees. The Board determined that information regarding impaired licensees and applicants would be more appropriate in new §75.25.

 Adopted Rules Formal SOAH Proceedings –amendment to §76.3, concerning Commencement of Enforcement Proceedings corrects an incorrect citation to the Administrative Procedure Act (APA). Previously, subsection (b) cited §2001.052 of the APA in declaring that a respondent is entitled to reasonable notice of a hearing of not less than then days prior to the hearing. However, the correct reference to the APA should be §2001.051, as reflected in this adopted amendment.

  Adopted Rules Formal SOAH Proceedings – Default Judgments amendment to §76.11, concerning Default Judgments, changes the font size of the required default judgment disclosure in notices of hearing. Previously, subsection (b) read that the default judgment disclosure in a notice of hearing was required to be 10-point font Therefore, the adopted amendment changes the required font size for a default judgment disclosure in a notice of hearing to 12-point font.

 Adopted Rules Professional Conduct – Request for Information and Records from Licensees amendment to §80.3, the adopted amendment removes subsections (g) and (h). Previously, §80.3(g) dealt with licensees providing information to the Board about answers to questions on an application for license renewal. The Board determined that §73.2(j) is a more appropriate place for this information. Additionally, §80.3(h) dealt with impaired licensees.

SECTION-BY-SECTION SUMMARY LPC Rule Changes

Section 681.14(a)(10) has been added to authorize the board to charge a fee of $50 for pre-evaluation of a criminal history for eligibility for future licensure.

New §681.17 authorizes the board to pre-evaluate a criminal history by request of future licensees.

Section 681.41(e)(6) is amended to require LPC Interns to provide their supervisor’s name on all documentation.

Section 681.41(j) is amended to allow LPCs to promote and sell products to clients as long as it is for a therapeutic purpose and does not hamper the counseling relationship.

Section 681.41(l) is amended to clarify a dual relationship. REMOVES LANGUAGE REGARDING DUAL RELATIONSHIP AND SIMPLY STATES NON-THERAPUETIC RELATIONSHIPS WITH CLIENTS ARE PROHIBITED UNLESS THEY OCCUR TWO YEARS AFTER THERAPY TERMINATED OR IN THE CASE OF SEXUAL RELATIONSHIPS—FIVE YEARS AFTER THERAPY TERMINATED.

Section 681.42(e)(2) is amended to clarify language. REMOVED THE WORD “Inappropriate” regarding seductive, sexual behavior and sexual comments.

Section 681.48(a) is amended to require LPC Interns to provide their supervisor’s name on all documentation. In addition, §681.48(e) is added to require LPC Interns to inform clients of their supervisor’s name, telephone number, and address.

Section 681.49(d) is amended to ensure the understanding that all degrees must be accepted and reported by American Association of Collegiate Registrars and Admissions Officers. THIS REFERS TO ADVERTISING AND THAT A DEGREE MUST BE RECOGNIZED BY AACR

Section 681.52(e) is amended to require LPC Interns to provide their supervisor’s name on all documentation.

Section 681.72(d) is amended to require the supervisor’s renewal card to be submitted with the supervisor agreement form.

Section 681.83(a) is amended to clarify that an applicant must take at least one course in each of the core areas. REMOVES LANGUAGE:  “obtain academic course work”

Section 681.92(g) is amended to allow supervision over the Internet using live Internet webcam.

Section 681.93(e)(2), (4), and (6) is amended with minor editorial revisions in grammar, renumbering within the section, and removing unnecessary existing language.

Section 681.93(k) is amended to clarify the requirement for repayment of supervision fees.

Section 681.111(g) is amended to ensure the understanding that all degrees must be accepted and reported by American Association of Collegiate Registrars and Admissions Officers.

Section 681.125(e) is amended to remove repetitive language.

Section 681.142(b) is deleted to disallow carry over of continuing education credit.

Section 681.164(d)(6) is amended to clarify the rule. Removes the words “insurance claim” and leaves the word” fraud.”