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.

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.

 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

 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.

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.

EXECUTIVE DIRECTOR REPORT

The QA panel seems to be working.  Almost all Board members have participated in the QA panel process.  Mcneese questioned if someone reviews the Orders before they are sent to the respondant.    Freshour states that they are reviewed by two people.

Regarding the 24 Hrs CME required.    Would the Board  consider that someone has maintenance of certification rather than reproducing the CME that was turned in to certifying board.   Direction to staff to look into this in order to cut down on amount of paper that is turned in to the Board.   Specifically, they would eliminate the need to send paper documentation to prove participation.

PA Clinic Ownership

The PA Board is grappling with issue of ownership of clinics by a PA.  PA’s and APN’s own clinics and they hire a physician to supervise the clinic.  The TMB gets questions on this type of business.  There is no direct law.  The Board suggests they consult their own lawyer.  A stakeholder group is being created someitime in May to look at this issue.  Robinson has met with TMA about it.  The issue is not being pushed other than the Board seeing that it  is happening and being looked at.

INTERIM HEARINGS

They were part of the matter concerning the HHS committee.  The hearing has not been set.  There are no other interim hearings that they are involved with.    Met with legislation looking into lyme desease

FEDERATION OF STATE MEDICAL BOARDS

Robinson, and Turner and Lee Hopper to attend the conference in Chicago.

MEDICAL DIRECTOR REPORT

As of July, 2009 123 Experts have been approved.  Added 6 Orth  6 oncologist  5 thoracic surgeons  14 pain management.

McNeese met with Dean at UT Houston.  Have had an amazing response from faculty members.  Sent out 25 applications to the faculty there.  Dr. Moore wants to thank Dr. McNeese for her efforts.  Added 27 new chart monitors.  Criteria is they need to have license, active practice of medicine, board certified and look at history with TMB and look at medical mal practice history.  Look at qualifications to ensure they are adequate.

Zeitler has question on ISC process.  When you get the packet, there is the expert report and a rebuttal from the respondants expert.  They do not get a chance to queary the Board’s expert to respond to the respondant’s rebuttal.  The rebuttal only needs to be returned to the Board 5 days before the ISC.  The time frame of five days is statutory.  Dr. Zeitler asked how much turmoil it would cause if they chose to postpone the ISC because the rebuttal caused questions.   Robinson first suggests that it would cause considereable turmoil then suggests it is better to send the informaton back for rebuttal of the Board expert rather than send a case to SOAH.

Turner suggests giving the Board expert notice that they would like them to review the rebuttal and get a resonse back in time for the ISC. 

Benevides offers that he sometimes disagrees with the expert review and the prosecuting attorney only looks at one of the complaints.

REPORTING CORRECTING ORDERS

Issue arose when they put out the corrective action idea.  How do they want these to be reported in the Newsletter?  They are in categories, then by name and what the action was.  When fast tracks came about, they would just report the category and how many were taken.  There is information in the statute stating what needs to be published.  Rule154.003 states they must include summaries of disciplinary orders made against physician.

Dr. Holiday suggests that they only publish categories and license numbers.  Guardo suggests keeping the Fast Track reporting as is.  He offered that a colleage at the hospital wondered when the newsletter was coming out, because he enjoyed reading it, as it was like reading the National Enquirer.

The newsletter is on the website, but it is not sent to anyone.  They are looking into a method to send it electronically that is resonhably priced.

Attebury feels that the benefits of not having to come to Austin, not having an ISC should be enough and they should publish the names for the Fast Track in the newsletter.  Jokingly suggested they should publish photos.

Turner feels like the newletter should have information directing people to the website because all citizens have the right to know about their physician.  A report is prepared after each TMB meeting, which lists names of physicians disciplined and this is submitted to the media. 

Dr. McMichael motions to have names  and license numbers published for fast track orders in the newsletter, Dr. Crocker seconds. 

Pending Litigation

The most live case is the lawsuit agaist Chiropractice Board, which is scheduled for hearing in Aug. 

Have won the issue that manipulation under anethesia is outside of scope.  Will be receiving expert testimony on what is a diagnosis.  Discovery is ongoing.  Another rule from the chiropractic board is for festibular (spelling????) testing. 

In Johnson case, the TMB plead that respondent did not plead their request for rehearing.  The appeal ruled the Board was wrong.  They will need to develop rules on what will need to be present for a motion for rehearing.  This is in regard to a one sentence Motion where they state that they incorporate all their previous objections. 

Item # 9 Motion to accept all Orders – none were pulled.

Items # 10  Motin passes to accept

Item # 11  Mediate Settlement Agreed Orders.  None pulled  Motion to accept.

Item # 12 motion to accept none pulled

Item # 13 Corrective Orders  none pulled Motin to accept, passes

Item # 14 Order of Referral none

Item # 15 none

Item # 16   Temporary Suspension Report on a physician injecting drugs thorugh his toes.

Item # 17 Automatic Order.  Surgical assistant is incarcerated.  This may be the first order for a surgical assistant the Board has ever issued.

Item # 18 Cease & Desist Orders  Motion to accept, passes

Item # 19  none

Item # 20  none

Item # 21 none

Items # 25  Publication of Physician registration information

Changed the rule regarding profile and only putting year of birth and the practice address  rather than mailing address.  What do they do when an individual calls and asks for a mailing address or files an open record request?  This occurs when a doctor moves and the person is trying to obain their records.    Mailing addresses are not on the website.  The Board is selling their data products all the time so they would be hard pressed to deny an open records request, according to Ms. Leshikar.  If they continue to sell the data product they would need to give out the mailing address if asked.  If there is no practice address, the mailing address is posted on the site. 

Licensure is in the process of making a change of informing applicants that their mailing address will be on their profile if they do not have a practice address.

Item # 28  Consent Agenda 2010 February Full Bord Minutes

Minutes accepted

Temporary Suspension  Allen Schiller M.D.  Approved

ALJ Sharon Cloninger, Proposal for Decision 

Januar y1, 2009.  No genuine issues Board Staff’s motion was granted.

Undisputed facts that he is guilty of sexual assault, 3 years prison, 10 years probation.  The victim was a medical clinic employee not a patient.

The question was the Dallas county conviction initial or final?
ALJ  finds it was initial and Board is required to suspend the license pending outcome of the appeal, if the court upholds,  the Board would be reqired  under 164.7B of act to revoke the license. 

Multiple violations, each stems from the one incident.  If appeals overturns, non are supported, therefore would be premature to enhance any sanction based on multiple violations.

Dr. argued he did not have opportunity to request for probation.  He did not offer information during discovery.

According to the rule 164.101 they could probate the order.

Heisler states the Board finds it is a final conviction. 

Mr. Larry Gallehar, counsel for Dr. Mallou.  Believes there has not been a final conviction and the case is on appeal to the fifth court of appeals.  They feel the Doctor is entitled to a hearing on probation. 

Terms and conditions of probation prohibit him from having any contact with patients.  Turner moves to accept PFD, except # 6  Motion passes.

Items # 7 TERMINATION MODIFICATION REQUESTS FOR NON-PUBLIC ORDERS

                        None pulled, all pass

Item # 8 Agreed Board Orders

Williford, McMichael, Zeitler pulled:  Baucom sat on panel.  Anesthesiologist unaware that the patient had eaten and subsequently died.  Motocyle accident and undergone several surgeries.  Physician was working multiple rooms.  Respondent received a Public reprimand and CME. McMichael questioned whether this was adequate to protect the public.  Holiday offered that you cannot force a patient to tell the truth, as to whether they had eaten.  Passes as written.

Williford & Crocker pulled.  Felt this was a harse punishment.  No prior Orders and mitigating facts.  He was not present at births he was required to submit a birth certificate for. 

McMichael:  Question on Doctor with prescribing issues and under an Order.  He surrendered DEA in May 2009.  Can he get the DEA  certification back?  In the originial order he cannot reapply for ten years. 

McMichael requested Executive Session:  went into executive session  and they did not disclose the final decision

Benevides:  language change.

Zeitler:  Physician surgeon did laproscopic gall bladder surgery.  Has punctured,  mesentary and internal artery.  Patient lost considerable blood.  Treated for colonengitis where the issue was discovered.  Failed to transfer to tier one hospital.  Would K-star or monitor benefit here?  This is a suburban or rural setting and brings to question if a peer review needs to be done. McMichael moves to add chart monitor for 8 cycles of time with 10% of charts reviewed both at the hospital and office with an effort made to have 50% be hospital charts.

Motion to accept remaining orders, passes.

 Item # 23

Rule Changes to Chapter 187, 189, 190, 192, 195, 198.  Motion to pass changes

Item # 24

Rule change to TAC 22 Chapter 183

Acupuncture chapter.  Reviewed rules.  Allows multiple attemps on the JP exam.  Can apply for additional attempt if they fail 3 times.

Executive Session 11:54 to discuss Podiatric case.

When they reopen they will approve the minutes from the meetings of the last three days.