Health License Defense » Texas Medical Board Attorney

Is the Newsletter Back?

Jon Porter — Sun, 15 Aug 2010 22:41:14 +0000

Anyone who has practiced medicine in Texas for more than the last three years will remember that each quarter, they would receive a newsletter from the Texas Medical Board. This newsletter would have information about the Board members, an editorial from the Executive Director and sometimes information about a new rule. But the majority of the newsletter was a list of all the disciplinary action the Board took against its licensees since that last quarter.

In truth, the newsletter never went away, they just stopped mailing out to save money. It still publishes it on the Board’s website, if you know where to look. That may soon change.

The TMB only sends out newsletter by email to a list that is kept manually. The Board staff is looking into capturing emails during licensure process for new licensees. It is also looking at putting a button on website in order to opt-in to the newsletter. The Board currently asks on renewal if licensees would like to receive the newsletter. Maybe 15% of licensees have opted not to receive emails.

Board Expresses Concerns on Certain Open Records

Jon Porter — Mon, 26 Jul 2010 19:03:48 +0000

At the June Board meeting, there was a discussion regarding “abuses” of open records requests. Board staff informed the Public Information Committee about 22 TAC 199.3, which generally provides if someone continues to make open records requests over 36 hours of staff time, they can charge additional money. According to staff there are a handful of people who make open records requests over and over again. To be able to enact the 36 hours they would need to track the time spent and the Attorney General’s office has said they must track time on all requests not just on the ones who make multiple requests. There are requests from licensees (3-7 people) for information on all communications between two people (staff did not identify these people in public session) over a five year period, as an example. Another example is whenever new panelists are approved, information is requested on qualifications of the panels and how they were approved. The TMB wanted these individuals to feel the cost of their requests on staff time. However, according to staff the time spent tracking would cost more to the Board then dealing with the requests. Copies of fewer than 50 pages, no charges are incurred. The Board staff determined that cost for computer programming to pull data is $28.50 per hour. Board staff reported that open records imposes a large cost on all agencies. The TMB has a person who spends 90% of her time doing opens records. Board staff estimated that it averages approximately $100,000 to $150,000 per year on dealing with and complying with open records.

During this decision, Dr. George Williford, a member of the Board, asked staff if the individuals making these large requests could be mentioned in the newsletter and listing the cost to the agency. He asked if this was a form of harassment. Mari Robinson, the Executive Director, responded the Board could put together a report on requests, which it is doing it and how many requests these people have made. This information will be presented at the November meeting.

More Rule Changes Proposed By the Texas Medical Board

Jon Porter — Mon, 19 Jul 2010 21:54:51 +0000

On July 16^th, the Texas Medical Board published it proposed rule changes to be considered at it next Board meeting in August. It is important for licensees and other interested parties to review these rules to determine how it affects you and your practice.

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

Budget Issues for the TMB

Jon Porter — Mon, 19 Jul 2010 14:56:37 +0000

At the June meeting for the Texas Medical Board, staff reported to the Board members that the Board is doing well for its 2010 budget, which ends on August 31^st. Currently, the Board has spent 7.5 million out of an 11 million dollar budget. Most of the remaining money will go to staff salaries and to the Board’s expert reviewers.

As we know times are tight for government due to the poor economy. As such, the Governor asked all state agencies to cut 5% of their budgets. For the Board that is 1.46 million dollars. The Board was awarded by the Governor 2.5% of that money back. In response to this new money, the Board lifted its hiring freeze.

Mari Robinson, the Executive Director reported the Board will post jobs in July, and actual hiring in August. She also reported that the Licensure Division does not operate on laser fiche, they have to scan everything. This is large efficiency loss, if they do have funds, some will be expended to bring licensure in line to laser fiche. Also would like to get technology to allow board members to attend ISC’s remotely. The camera they purchased did not give them the quality they had hoped for; Board members want to be able to see expressions on Respondent’s faces. The Board is looking at spending money on a better camera to cut down on travel expenses. Information Technology is researching the costs, and they expect to recoup the money in one to two months in travel savings.

Ms. Robinson also reported Board staff met with chair of appropriations committee. A big portion of the cuts were on the expert panel reviews. They feel they are currently closing many of the cases on the front end.

TMB just received legislative appropriations request and fully intended not to ask for additional funding. They are required to submit a budget and then two appendendacies with additional cuts in each. Board staff is of the opinion that it does not have any additional monies it can cut. If they can save on travel, they will put that in, but when you are talking about cuts of millions, it will not be a great help. Board staff reported it will go back to letting cases sit and wait for expert reviewers, as this is a major expense.

Board staff reported that Licensing fees have been increased, which was pointed out when they submitted the budget cuts. This may be why they received money back. Board staff is concerned about the budget for 2012 and 2013, which will not be finalized until the end of June 2011. The Board believes it will need to look at brining in additional revenue. Board staff pointed out the agency brings in triple of what is appropriated through licensure fees, renewal fees and fines. Board staff hopes the Legislature will take this additional revenue rather than cut the Board’s base budget. Board staff encouraged Board members communicate with legislators on how budget cuts effect the operations of the Board.

New Rules for Website

Jon Porter — Thu, 01 Jul 2010 22:09:26 +0000

For Physicians, Physician Assistants and Acupuncturist, if you have a website for yourself or your practice effect July 1, 2010, the Board has instituted new rules that directly affect you. The rule, I believe is some what onerous and vague. I think it may be difficult for some people to comply with; but if you want to keep the Board off your back, you best attempt to adjust your website accordingly.
The rule is 164.6.Required Disclosures on Websites.
(a) Disclosure. A licensee that maintains a website in relation to the license’s professional practice must clearly disclose:
(1) ownership of the website;
(2) specific services provided;
(3) office address and contact information;
(4) licensure and qualifications of physician(s) and associated health care providers;
(5) fees for online consultation and services and how payment is to be made;
(6) financial interest in any information, products, or services;
(7) appropriate uses and limitations of the site, including providing health advice and emergency health situations;
(8) uses and response times for e-mails, electronic messages, and other communications transmitted via the site;
(9) to whom patient health information may be disclosed and for what purpose;
(10) rights of patients with respect to patient health information; and
(11) information collected and any passive tracking mechanisms utilized.
(b) Accountability. Licensees must provide patients with a clear mechanism to:
(1) access, supplement, and amend patient-provided personal health information;
(2) provide feedback regarding the site and the quality of information and services; and
(3) register complaints, including information regarding filing a complaint with the Texas Medical Board as provided for in Chapter 178 of this title (relating to Complaints).
(c) Advertising/Promotion of Goods or Products. Advertising or promotion of goods or products that a licensee sells outside the normal course of business from which the physician receives direct remuneration or incentives is prohibited.
I would strongly advise you to review your website to ensure it complies with this rule and the information demanded of it is complied with. You may want to consult a professional to ensure compliance.

Another Difficult Day for Licensure Applicants

Jon Porter — Fri, 04 Jun 2010 13:36:39 +0000

June 3rd was another meeting of the Texas Medical Board’s Licensure Committee. Over the past two years the number of applicants found to be ineligible for licensure or granted a license with disciplinary action has outnumbered the people who received an unrestricted license. Yesterday was no different. June 3rd was a “light” meeting in that there were only thirteen applications to be heard before the Committee. That is about half than is at most meetings. The August meeting is usually the busiest.

The meeting was to begin at 11:30, but due to a contentious sub-committee meeting on advertising (which I will blog about soon) the meeting started a little after 1pm. The review of applicants wrapped up at 5:45pm. My client was one of five who received an unrestricted license or permit. Three were granted a license or permit, but with a disciplinary order and six were deemed ineligible. As is normal after the Licensure Committee, there was a mix of happiness, sadness and frustration.

The Licensure process in Texas can be difficult and time consuming. If you have “issues” or lie on your application, you face a challenging time. It wise to consult with some with experience in this area and to be very organized with information that you present to the Board.

Medical Director Leaves

Jon Porter — Tue, 01 Jun 2010 14:13:18 +0000

Alan Moore, M.D., the Medical Director for the Texas Medical Board resigned his position late last week. Dr. Moore has been the leader behind locating physician experts for the Board, chart monitors and internally reviewing medical issues. He also has been the public face for the Board when interacting with physician groups. The Board must have a Medical Director, as the Executive Director, Mari Robinson, is not a physician.

End of Life Care

Jon Porter — Wed, 18 Nov 2009 15:34:12 +0000

I am an admitted NPR fan. A day without Morning Edition or All Things Considered is a bad day, disconnected with the world around me. On Monday, All Things Considered did an amazing story regarding end of life care and how the city of La Crosse, Wisconsin worked developing dialogue with patients regarding treatment opinions at the end of life. An impressive story on how communication with patients, gives them control over their care and how doctors and allied health care professionals are able to help patients die in peace in accordance to their wishes. These informed choices help with patients, families and saves money. This is a story completely worth listening to.

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.

Changes Coming in Delegation of Prescriptive Authority?

Jon Porter — Thu, 12 Nov 2009 15:37:26 +0000

Texas Medical Board staff met with the representatives of the Texas Nursing Board and the Department of Public Safety regarding prescriptive delegation for mid-level providers. They discussed the two methods that mid-level providers to prescribe scheduled drugs:

(1) The mid-level providers can obtain there own certification with the DEA and DPS. Their individual certification number must appear on their prescription pad and they are required to have a supervisor relationship with a licensed physician. This person is viewed as a “sponsor.”

(2) There must be a standing protocol for the mid-level provider to prescribe using the physician’s prescription pad for the listed symptoms and only prescribe medications that are listed in the protocol for the symptoms.

The parties meet to discuss creating a field on the Texas Medical Board’s Physician Profile that will list all of the mid-level providers under the physician’s sponsorship who have prescriptive authority.

The Texas Medical Board’s Standing Delegation Committee voted to create a sub-committee with the Physician Assistant Board and the Nursing Board to look into the guidelines for supervising physicians over PA’s and APN’s who have prescriptive authority under the physician’s supervision. Their goal is to have everyone on the same page as to what the rules are and the risks involved in prescriptive delegation.

My Take: First, physicians and mid-levels need to be sure they are in full compliance with current level and the correct paper work is in the Board denoting the supervisor relationship. Second, look for the rules to be changed in the future. If you have three boards get together, I can assure you the rules will change. Given the current regulatory climate, I suspect that rules will tighten-up. I just hope that before the Boards publish any rule changes, they talk and meet with “stake holders” in this area as any changes to mid-level prescriptive authority will have significant affect over thousands of providers. Please continue to monitor this blog for changes.

Texas Medical Board – Disciplinary Trends

Jon Porter — Wed, 11 Nov 2009 15:44:46 +0000

As previous noted in the blog, the 2009 Fiscal Year was a big on for the number of investigations and Informal Settlement Conferences for the Texas Medical Board. Last fiscal year (Runs September 1 to August 31) the Board held 700 ISCs, 200 more than in FY 2008.

Based on a report by the Executive Director on Thursday, November 5^th, the Board trend on investigations appears to be a little less than last year. In October 2009, the Board opened 50 fewer cases than it did in October 2008. The Executive Director, Mari Robinson, attributes this change to due more careful initial review, which is now conducted by a physician and an attorney.

However, this does not mean that there are only a handful of cases. There are currently 1875 open investigations with the Board. Moreover, the Legal Division of the Board is extremely active. There are 719 active legal cases with the Board. Of those 101 cases are pending before SOAH. That is a record number, and means 17.5% of all cases in Legal are at SOAH.

Ms. Robinson reports that the Board is experiencing a watermark situation with numbers and she does not see it going down anytime in the future.

Additionally, from the discussion held by the full Board on Friday, November 6^th, it appears to me that the Board members are only seeking to become more forceful with people who they deem have violation the Act.