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.

WHAT NOT TO DO:  answer the Board without having an attorney review your response.  It is so sad when a health care professional receives a disciplinary order due to an incorrect answer to a renewal question; so often, these violations are easy to avoid.  Sometimes a health care professional answers a renewal question in a manner which causes Board action on the answer but not on the original criminal issue.  In addition, you need someone on your side advising you regarding what actions to expect from the Board and making sure you do not agree to a disciplinary action which is not warranted.  DO NOT rely upon advice from your criminal attorney, your family, your co-workers, your boss etc.  This is not a time to risk talking to inexperienced people.  Some Board do not take action on minor criminal incidents as long as you do not try to hide the criminal incident from the Board.  For example, the Texas Board of Nursing will typically not take action on a one time shoplifting case, but if you do not disclose the criminal incident to the Board you will be deemed as being deceptive and the Board is more likely to require some type of remediation (once again there are various Board responses and which is used depends on the information provided to the Board).

WHAT TO DO:  Obtain the criminal court records and contact an administrative lawyer with experience before that particular Board.  When you call the lawyer, is the lawyer able to answer your questions or do they say they have to do research?  If an attorney practices frequently before a Board, the lawyer will know the types of questions asked by the Board and what is required to be disclosed.  This type of legal advice is not usually expensive as long as the case does not progress to an investigation before the Board and an attorney can give you estimated costs when you speak to the lawyer.

I know this response looks like an advertisement for hiring lawyers, but seeking appropriate legal advice is the best action to take to protect your license and the risk of possible disciplinary action is too great not to at least speak to a lawyer.

When I read the article and the editorial I knew that many people will cheer the limiting of licenses to those with criminal histories, but I think they tend to focus on horrific crimes and don’t realize the impact made on people who commit crimes due to a lack of knowledge or because they are young or with the best of intentions.  If you do not speak to such people daily, then you cannot know the heartache and problems for the licensee or the ultimate ramifications for the public.  What about a licensee who is wrongly accused (it happens more than you think:  bad investigations, witness lies, evidence corrupted) and then convicted (Oh, and it does not matter the licensee received deferred adjudication since some regulatory boards consider deferred adjudications as convictions.).  A situation I have seen over and over is during a divorce or custody hearing, one of the spouses accuses the other of some crime and then lie or plant evidence; the other spouse is sure the law will find on their side since they are obviously innocent, but the legal system does not always work that way, so the innocent ex-spouse is now facing an investigation by the regulatory board.  The criminal incident has nothing to do with the licensee’s profession, but the licensee is investigated then disciplined and  loses their job and is now on public assistance because no one wants to hire them.  It happens again and again, professionals attempting to find work outside of their profession will not be hired because the potential employers think they will leave too soon, are too over-qualified, will challenge them for their position etc and a highly educated professional remains unemployed.

Mr. Dexheimer discusses so many cases where the state’s result does not appear to be justified; that there is no nexus between the criminal charge and the practice of that particular profession.   One of the examples involves pharmacist Emmanuel Kanu who lost his pharmacist license, not because of patient care issues or as a result of actions which could harm the people of Texas (potential patients/clients), but because he did not complete the proper documentation when he sent donated medications to a clinic in a third world county.  Mr. Kanu, a pharmacist with no patient care issues for 17 years, is now removed from being able to care for the Texas public for 10 years; how is this outcome reasonable or just? Would one consider Mr. Kanu to be a criminal?  Is his failure to submit the proper documentation in order to send these medications so heinous that we need to waste tax payer funds to convict him and then remove him from the professional workforce?

I also fear the public will ignore the message of this article (and the subsequent editorial) because it deals with “ex-cons” or those with criminal incidents when the message is so much more–the regulatory agencies are vested with great power and there can be an unfair and unjust tendency to abuse and overuse that power; once again, it depends on the individuals within the agency–there are some excellent staff members who warrant great respect, but there are also some who are not protecting the public, they are just punishing.

The problem our attorneys face is most licensees cannot afford to fight the regulatory boards and they are faced with accepting discipline which is not warranted or in some cases, even legal.  But, it is not clear sailing for those licensees that do choose to fight because as seen in Mr. Dexheimer’s article,  like Mr. Kanu, the licensee pays the money to fight the regulatory board, the licensee wins at the State Office of Administrative Hearings (SOAH) only to have the case overturned by the regulatory board.  This is such a wide spread problem that our attorneys testified during the last Legislative session urging Texas lawmakers to support a bill which would make SOAH decisions final and if either party wanted to appeal at district court, they could do so.  Making SOAH decisions final avoids the “second chance at the licensee” actions which occur now when boards overturn SOAH Judge recommendations.  Making SOAH decisions final levels the process and makes it fair for all involved.

These are problems which should be addressed and the regulatory system, if it is going to be vested with so much independent power, should be fair and just and able to stand up to scrutiny.  Ask yourself, who is on the side of the licensee?  Who is making sure there are enough professionals to provide care to the people of Texas?  Is the system driving good professionals out of practice or turning them into cynics who no longer see the benefit in caring?  The public, the boards, and licensees need to be aware of all sides of a situation; not jump to conclusions; and consider the ultimate impact on all.

As of March 4, 2011, just a few mouse clicks will fill your virtual shopping cart with TMB “products.” 

“Products” is what the Texas Medical Board likes to call the information or data they have in their possession for all the Physicians, Acupuncturists and Physician Assistants that are or were licensed in the State of Texas.  Since hit with hefty budget cuts mandated by the State the last few years, the TMB has strived to increase their income in various ways.  One way is their new online TMBstore.

These databases, which contain information on all licensed physicians, acupuncturists and physician assistants have been available all along, although one had to write or email the Board and send a check to receive such information.  Now you can sit by your computer, create an account, enter a password and payment information and within minutes, increase your computer address book! 

This information can be yours for a reasonable price of $26 for New Doctors,  $60 for a combined directory of practitioners, which includes licensed Physicians, Acupuncturists, and Physicians.  $50 for a choice of database of licensed Acupuncturists or Physician Assistants, or $60 for  a database of Currently Licensed Physicians, or all MD’s whether practicing, retired or deceased .  These four  latter databases include items such as license number, mailing address, birth year, birthplace, medical school, graduation year and more.  At the top of the store list for only $25 you can obtain a list of all Board Actions against  these licensed health practitioners since 1989, and it is updated monthly. 

To my knowledge, there is no opt-out process if you don’t want people and entities to purchase your personal information.

 HB 201, Morrison.  Required TMB to do rule making.  Known as the sonogram bill.  Must show a sonogram to a woman before they do an abortion

 HB 527 Eisler bill take all of licensing exam limits from 3 times per part to six times per part.  Requested by a constituent of a representative that cannot be licensed in TX.  The change would allow 15 failures of exams and a physician could still get a license. 

 Shortner bill.  Language in this bill is basically from last session, which states the Respondent must be given a copy of the complaint and  providing an additional 45 days to respond to the complaint. 

 HB 1009     Informed consent to perform post mortem or autopsy

 HB 1013  Brown   This is the AAPS bills.  This forces major changes to the Texas Medical Board disciplinary and legal process. 

 SB 188  Nelson:   created practice for genetic counselors and certification.

 SB 189  required physician applicants who are not citizens or permanent residents  need to practice in MUA for 3 years

SB 190 The bill creates a statute of limitation of 7 years for Standard of Care cases.   Eliminates anonymous complaints.  Initial time line of 45 days.  Extends notice for ISC to 45.  Physician must have 15 days to submit material. 

 SB 191  SOAH bill  that the Board cannot change findings of fact or conclusions of law.  SOAH cannot make any recommendations  on  penalties. TMB will have a right to appeal

 SB 227  ways to resolve cases;   issue a remedial plan, non-disciplinary.  Will allow them to resolve cases where they thought education could rectify the problem.  Not available with egregious cases.   The Board of Nurse Examiners can do this, and it has worked well to date.

 SB 240 licensing bill for MUA areas,  exam  attempt limits

 SB 256 autopsy sites –will try to clamp down on private places where a doctor is not doing the work.

 SB 253  Corona.  Will allow revocation of license when licensee is placed on deferred adjudication for sexual assault of a child and other similar crimes.  Suspension will also be an option when respondents are arrested for assault or indecency with a child.

 SB 301 Wentworth.  Requires Complainant submit a signed affidavit. 

 HB 915  Christian. This bill would expand the scope of APN practice to diagnose independently of a physician

 However, there is a strict prohibition about prescribing controlled substances to immediate family members unless it is a documented emergency, cannot get treatment elsewhere, and only for 72 hours.  At the February Board meeting, some Board members were discussing what “immediate family” means.  They decided “immediately family means up to a second degree separation, so it would include spouse, children, parents, brothers, sisters, step-children, aunts, uncles, and cousins.  It would also include step-family members.

 Ms. Robinson also reports that the number of cases being prosecuted has increased.  She did not provide any explanation for that occurrence.  Ms. Robinson states there are currently 624 cases being actively prosecuted by the agency.   She reports this fiscal year they have had 159 informal settlement conferences, four temporary suspension hearings, with “more to come.”   She further states that there are 117 cases pending full litigation before Administrative Law Judges.   Of note, she reported the litigation staff is currently down by five, as four attorneys have left and one is one family leave.   Ms. Robinson did not publicly provide any insight to the sudden loss in legal staff.

 Finally, Ms. Robinson reported there are 771 physicians being monitored by the Board.  Of that, 106 have come from this fiscal year.