Health License Defense » Texas medical license

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

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.

Trial of Winkler County Nurse Who Reported Doctor to TMB-Part II

Taralynn Mackay — Thu, 11 Feb 2010 17:09:47 +0000

The Texas Nurse Association has been tracking this case closely and is in attendance at the trial. TNA has also set up a legal defense fund and provided letters in support of the nurses’ actions. Here is their account of the daily ongoings , quoted from texasnurse.org,

Update: Wednesday, February 10

Andrews Courthouse – On the stand this morning, the nurse’s defense attorney Cook continued the cross-examination of Sheriff Robert Roberts of Winkler County. Defense wanted to know: what was confidential about the nurses’ complaint? That’s still unclear.

And, it seems, there was yet a second complaint filed against the physician. The sheriff admitted that he didn’t check with the Texas Medical Board, said he didn’t know which complaint was the first and which was the second. The second complaint was filed by a nurse who was never indicted. Sheriff said he didn’t do any investigation of whether complaints the nurses made were true.

When the defense attorney asked if the sheriff had ever arrested someone simply because the person gave him information about a possible crime, the sheriff answered, “yes.” The defense attorney rephrased the question and asked it again. Still the sheriff answered, “yes.” The courtroom laughed. The judge then admonished that their laughter was inappropriate behavior and he will have them removed if the laughter continues.

Court is now recessed for lunch. When trial continues this afternoon, the next witness is the nurse who replaced Vicki Galle in the performance improvement position at Winkler County Memorial Hospital.

Update: 3:10 p.m., Wednesday

Andrews, TX Courthouse – State prosecutors rested their case against Anne Mitchell. The court is in a recess. When it reconvenes, defense attorney Cook is to file a motion for a directed verdict that the state failed to prove every element of its case beyond a reasonable doubt. More updates to follow.

Update: 5:45 p.m., Wednesday

Court has recessed after what was day 3 of the Winkler RN trial. Judge Rex denied an earlier defense attorney’s motion for a directed verdict. The defense started presenting its case this afternoon and called a number of character witnesses for Anne Mitchell. Trial resumes tomorrow morning. Closing arguments might be heard at day’s end.

Thursday, February 11

The State and the Defense have put on their cases and rested. This morning, Anne’s attorney has finished her defense.

The State had to prove five elements to prove Anne misused official information: 1) Anne was a public servant (all public employees are), 2) she had access to information because of her employment, 3) that information not public, 4) Anne used the information with the intent to harm another, 5) the information was used for a nongovernmental purpose. The State’s evidence focused on the last two elements because the prosecutor told the jury that those were the two most in dispute. The State’s main evidence consisted of several witnesses who testified about two to three occasions on which they heard Anne make statements such as “Dr. Arafiles will be gone in a year” “he is not a doctor” “he is a witch doctor.” There was also testimony of an ongoing conflict between Anne and Dr. Arafiles. She had refused to sign off on his original credentialing because hospital bylaws required physicians to have unrestricted license. The State also focused on the need to follow the chain of command. In cross examination, Anne’s attorney was able to get in good information about substandard care by Dr. Arafiles on cases Anne reported to Texas Medical Board (TMB). The Defense showed that most of the witnesses who testified about Anne’s motives had only been contacted within the past couple of weeks and not before Anne was indicted.

On Wednesday, Anne’s attorneys began her defense and called several witnesses to testify. The first was a nurse practitioner who had worked at the Winkler County Rural Health Clinic and left because of her concerns that issues relating to the care provided by Dr. Arafiles had not been addressed. She had also filed a complaint against Dr. Arafiles with the TMB at the same time as Anne and Vicki (all worked together). The NP testified that she has subsequently filed a second complaint. She testified that Anne was motivated only by her concern for patients. The second witness was an LVN, who testified about her concerns regarding Dr. Arafiles’ work at the clinic. She also left because of those concerns and the stress they were causing her. The Defense called the Winkler County judge (not the trial judge) testified that she knew Anne and Anne had discussed her concerns about Dr. Arafiles. The judge said Anne’s motive was patient concern. Lolly Lockhart, RN, testified as an expert witness on a nurse’s duty. Dr. Pham, Chief of Staff at Winkler County Memorial Hospital, testified about concerns about Dr. Arafiles’ care. He also testified that Anne was concerned about patient care and that Anne is a good nurse.

Thursday morning, the defense called a medical expert, who testified that he had reviewed the five cases cited in the complaint to TMB and found substandard care. The Defense has rested. Next, the charge will be read to the jury, the Prosecution and Defense will give their closing arguments, and the jury will begin deliberation.

The case is no less perplexing as to why Anne was indicted. All witnesses (even the State’s) have agreed nurses have a duty to report unsafe care.

Personal take: That this case has even gotten this far is unbelievable and the only hope is that the jury is fair and unbiased. It sounds like the defense teams for both nurses have been working hard in establishing that the nurses were concerned about patient care.

Trial of Winkler County Nurse who reported Doctor to Texas Medical Board-Part 1

Taralynn Mackay — Wed, 10 Feb 2010 19:50:41 +0000

The trial began on February 8, 2010 with jury selection. Prior to the trial, one of the two nurses, Vicki Galle, originally indicted was dismissed from the case. Anne Mitchell’s trial involves felony charges for mis-using private, patient files to harass the County hospital’s doctor. On February 9, 2010, testimony began in the trial. The IT person testified and then Dr. Arafiles testified. The allegations of his poor care were discussed and Dr. Arafiles actually testified that he did not think there was a difference in the way diabetic patients healed compared to non-diabetics. It was also pointed out that the Sheriff is a friend of Dr. Arafiles and a business associate as well. For news articles see: CBS7 and the New York Times.
Personal take: The fact that these nurses were ever charged with anything is not justice. The actions taken by the Sheriff and the DA reek of “good ol’ boy” tactics. This case should be thrown out and the “officials” involved investigated for misuse of official power. The “system” only works if all involved believe in it–that it is fair and that the people in power have no personal agendas for their actions and are acting based on the best for the public. For a Sheriff and DA to go after whistle blowers is an affront to their job of protecting the public.

FACTORS OUTSIDE MEDICINE THAT AFFECT YOUR ABILITY TO PRACTICE

Jon Porter — Thu, 29 Oct 2009 14:45:20 +0000

If you are a physician, are you expected to be a perfect citizen, a perfect person everyday for as long as you hold a medical license? Many people believe that is your professional obligation. Some profess that doctors hold a special place in our society, and must be above reproach. Some believe that who are you away from medicine speaks volumes to the type of physician you are. Some people believe that if a physician does something unethical, illegal, or wrong, the professional has a duty to censor that individual or even removed them from the practice of medicine all together for something that occurred, even if it is far from the practice of medicine. This philosophy is generally held by the Texas Medical Board.

Do things like Driving While Intoxicated, assault, theft, endangering a child, tax evasion rise to the level of the Board taking action against a licensee even if these activities are far from the actual practice of medicine or even in patient care settings? The simple is answer is yes. Can things follow you from time before you even went to medical school? Yes.

A brief review of the Board’s disciplinary actions will show that physician’s licenses have been restricted, even suspended or revoked for above actions. DWIs while on vacation. Assault charge due to an alteration at a restaurant. Theft of clothing while a resident. Child endangerment charges for speeding in a new car with his kids in the back of the car at night. Action based on tax evasion for failing to file his personal income tax return. Failure to pay child support. All of these resulted in disciplinary action by the Board.

How can they do this? Simple, it’s the law. There are various provisions in the Medical Practice Act that have nothing that directly relates to medicine. However, to be a licensed physician in Texas, one must possess “good professional character”. According to Board rules, good professional character is defined as a person who “must not be in violation of or committed any act described in the Medical Practice Act, Texas Occupations Code Ann. §§164.051-.053 and Board rules 22 TEX. ADMIN. CODE §163.1(9). The Board ultimately decides whether one has “good professional character.”

According to TEX. OCC. CODE Section 164.051, “[t]he board may refuse to admit a person to its examination or refuse to issue a license to practice medicine and may take disciplinary action against a person if the person:”
(2) is convicted of:

(A) a felony; or

(B) a misdemeanor involving moral turpitude;
(4) is unable to practice medicine with reasonable skill and safety to patients because of:

(A) illness;

(B) drunkenness;

(D) a mental or physical condition;

(5) is found by a court judgment to be of unsound mind.

Section 164.052(a) states that “[a] physician or an applicant for a license to practice medicine commits a prohibited practice if that person:”
(4) uses alcohol or drugs in an intemperate manner that, in the board’s opinion, could endanger a patient’s life;

(5) commits unprofessional or dishonorable conduct that is likely to deceive or defraud the public, as provided by Section 164.053, or injure the public;

Board Rule 190.1(2), helps to define what unprofessional or dishonorable conduct means. The lists provided are not all inclusive, merely instructional. These “example” fall into medical related areas, but can be expanded to fit various scenarios that on its surface does not appear to be in the area of the Board’s concern, but is.

If a physician is convicted of a most drug related crimes, the Board is directed to suspend that individual’s license upon an initial finding of guilt. Once the conviction is final, the Board shall revoke the license. (TEX. OCC. CODE §164.057). For any crime the physician serves any prison time, the Board shall suspend that individual’s license. (TEX. OCC. CODE §164.058).

How does the Board find out about this information? For non-medical related incidents there are four general ways the Board learns of these actions. First is the annual registration. One of the questions ask, other than a minor traffic ticket (under $100.00) have you been arrested? If you answer “yes” and it is anything beyond excessive speeding, the likelihood is the Board will open up an investigation on what occurred.

The second method of gathering this information is also the reason why one should not mislead the Board on the annual registration. The Board is required by law to supply the Department of Public Safety a list of all its licensees for each quarter. If DPS has any information on a licensee, it will forward that information to the Board. Board staff will examine to see if they were aware of the information. If the individual was arrested and answered “no” to that question, they will be in additional hot water.

The third is someone files a complaint with the Board. It is not uncommon for law enforcement to submit its arrest information to the Board if they do not have enough evidence to prosecute. They do so because they think the individual is guilty of a crime, but cannot prove it. The Board has lower standards of evidence than the criminal courts.

The fourth is the media. The Board subscribes to a clip service. It has employees across the state and they may see a story about a doctor. If the Board sees that a doctor has been arrests and it made the local media, an investigation is likely begun.

Starting soon, in order to renew your license, each physician will have to undergo a finger print criminal background check. The Board of Nurse Examiners started this two years and it has resulted in hundreds of disciplinary actions regarding people who had criminal backgrounds and failed to tell the Board about it.

What can be done? Obey the law.

Simple things can get people into trouble. One drink can send some people over the legal limit in Texas of 0.08. So, if you choose to drink at all and need to leave that location, have a designated driver.

Relationships with people at work often lead to trouble. Other people will fine out about. Rumors will start. If the relationship ends, feelings may be hurt. Sexual harassment allegations may arise.

If you know someone who drinks to excess or uses drugs “only on the weekends” get them help immediately.

Obeying the law is ease enough, but what about other issues that is out side the scope of medicine, but can by adversely consequences one’s license. One’s personal behavior often comes into question by the Board. This is especially true for people with short temper or strong libidos. One must recognize that any one who witnesses you in an imperfect moment, and knows you are a physician can report your action to the Board. The likelihood is great that you will be investigated for your actions. Being aware of your self and your surroundings can eliminate most conflict.