Senator Nelson Featured on the Cover of Texas Medicine Magazine
July 21, 2011
AS APPEARED IN TEXAS MEDICINE—JULY 2011
Tex Med. 2011;107(7):18-27.
TMB Reform: TMA Wins Key TMB Reforms for Physicians
By Ken Ortolon
Despite significant improvements to the Texas Medical Board's (TMB's) disciplinary process over recent years, some physicians still complained about how the board treated them. The Texas Medical Association heard those complaints and took an aggressive agenda of TMB reforms to the 2011 session of the Texas Legislature.
When lawmakers adjourned at the end of May, TMA had won approval of those reforms. Three bills backed by TMA -- two Senate bills authored by Sen. Jane Nelson (R-Flower Mound) and sponsored in the House by Rep. Susan King (R-Abilene) and a House bill authored by Rep. Charles Schwertner, MD, (R-Georgetown) -- ended anonymous complaints, gave physicians more time to respond to complaint letters from TMB, and granted the board flexibility to deal with minor violations in a nonpunitive manner.
"In time, I believe these reforms will go down in TMA history as comparable to the Patient Protection Act of 1997 and the liability reform and prompt pay bills of 2003," said TMA President C. Bruce Malone, MD.
At the same time it won passage of the reforms, TMA defeated legislation by some of TMB's harshest critics that TMA leaders say would have emasculated the board's ability to discipline physicians who commit serious offenses. That, in turn, could have threatened the 2003 medical liability reforms TMA fought so hard to achieve.
"If the medical board cannot discipline physicians, things will eventually end up in the courts, and we will lose the benefits of our tort reforms," said TMA's Immediate Past President Susan Rudd Bailey, MD. "There's no question the medical board needed reform. Physicians deserved more due process, and the board needed more flexibility to appropriately deal with minor administrative infractions. We think the bills will help achieve a lot of those goals."
Beaumont orthopedic surgeon David Teuscher, MD, says TMA listened to its membership and advocated for reforms that were in the best interest of both physicians and patients.
"We heard from our members, and we believe that the itch our members wanted scratched is contained in the bills," said Dr. Teuscher, a member of the TMA Board of Trustees.
Fairness for All
Despite opposition from physicians who have personal grievances with TMB and from the Arizona-based Association of American Physicians and Surgeons (AAPS), TMA secured passage of legislation it believes will create a TMB complaint process that is much fairer for physicians but maintain a strong board able to carry out its mission of licensing physicians and protecting the public.
Rather than work with TMA to resolve issues of mutual concern, AAPS took an adversarial position during the legislative session, attacking TMA, and joining forces with Houston-area physician Steven Hotze, MD. Dr. Hotze created an organization called Texans for Patients' and Physicians' Rights, headquartered at his Katy office, to push his anti-TMB agenda. In addition to hiring his own team of lobbyists, Dr. Hotze lobbied lawmakers himself at the Capitol for most of the five-month legislative session.
Dr. Hotze has generated controversy.
In 2005, the American Association of Clinical Endocrinologists (AACE) complained in a letter to the producer of the CBS morning program "The Early Show" about what it called the "unchallenged and scientifically erroneous comments offered to your viewing audience" by Dr. Hotze, "and the effect that this information may have on the health of patients with thyroid disorders."
Then-ACCE President Bill Law Jr. MD, wrote, "Many of Dr. Hotze's claims about the incidence and development of an underactive thyroid condition, commonly referred to as hypothyroidism, were completely erroneous and unsubstantiated, and are readily refuted by a large body of solid scientific evidence."
To read the entire letter, log on to http://healthfully.org/mednews/id16.html.
Dr. Hotze also was the subject of a lengthy article in the Houston Press that same year. The article is at http://www.houstonpress.com/2005-07-21/news/doctor-nice/.
A check of disciplinary actions on the TMB website shows that the board has taken no actions against Dr. Hotze. In addition, the TMB staff says the board has not acted against him. Dr. Hotze testified before the Senate Health and Human Services Interim Committee in May 2010 that four anonymous complaints had been filed against him, three of which involved advertising and one which was filed by another physician.
In a membership recruitment letter mailed during the session, AAPS accused TMA of being the "biggest obstacle" to TMB reform and said the TMA website "as much as announces its support of TMB against physicians."
"There is no medical organization that is more responsive to its members and is more grassroots than the Texas Medical Association, and to cast us in this kind of light is just patently ridiculous," Dr. Bailey told Texas Medicine after reading the letter and some of the unfounded attacks by AAPS and Dr. Hotze.
And in a letter to TMA members responding to AAPS's allegations, Dr. Bailey asserted that physicians who received AAPS solicitation had been "badly, intentionally misinformed." She said the more radical House bill that AAPS supported (House Bill 1013 by Rep. Fred Brown [R-College Station]) "is not about making the TMB discipline process fairer for the average physician."
The TMA-backed bills sponsored by Senator Nelson, chair of the Senate Health and Human Services Committee, largely came out of a study her committee conducted between the 2009 and 2011 sessions of the legislature. "We found a consensus on ways to make the process fairer to physicians without compromising public safety," she said.
Senate Bill 190 was a critical piece of Senator Nelson’s TMB reform package, but critics of TMB were able to get it knocked off the House Local and Uncontested Calendar (a fast track for bills that have no opposition) late in the session. Those critics were hoping to load SB 190 up with language from the AAPS-supported HB 1013.
Instead, Senator Nelson and Sen. Joan Huffman (R-Southside Place) added the SB 190 language to Representative Schwertner's HB 680, which included other TMB reforms TMA supported. The measure went back to the House, where Representative Schwertner won approval of the Senate amendments without the AAPS-supported language ever coming up for debate.
"We truly appreciate the dedication, hard work, and legislative savvy demonstrated by Senators Nelson and Huffman and Representatives King and Schwertner," Dr. Malone said. "Once outside parties jeopardized the passage of another reform bill, SB 190, by knocking it off of the House calendar, these legislators worked to make sure the changes at TMB still would occur. Quick thinking and action on their part resurrected the important provisions of SB 190 by adding them on to HB 680.
"They persevered despite loud protests that covered up self-serving legislation not in the best interest of the vast majority of Texas doctors."
As finally passed, HB 680 eliminates anonymous complaints -- where even TMB does not know the identity of the complainant- -- and requires disclosure of the identity of a complainant if it is an insurance company, pharmaceutical company, or its agent. The bill allows the identities of patients, their family members, physicians, and other health care professionals who file complaints to remain confidential, but no one could file anonymous complaints.
It also extends from 30 to 45 days the time a physician has to respond to a notice of complaint and allows the physician to tape a TMB informal settlement conference at his or her own expense. Finally, it prohibits the board from granting a license to an applicant whose license was suspended or revoked by another state or country.
Meanwhile, SB 191 by Senator Nelson and Representative King binds TMB to findings of fact and conclusions of law by an administrative law judge in a proceeding supervised by the State Office of Administrative Hearings (SOAH). And, SB 227, also by Senator Nelson and Representative King, grants TMB discretion to waive fines for minor administrative violations in lieu of a remedial action plan.
While many of those same provisions are in Representative Brown's HB 1013, that measure went much farther. It not only eliminated anonymous complaints, but eliminated confidentiality for complainants altogether. HB 1013 required the TMB to give physicians a copy of any complaint against them and the name of the accuser. As originally drafted, it also would have:
- Prohibited the board from disciplining a doctor for nontherapeutic prescribing unless the board could demonstrate that the drug or treatment prescribed is likely to harm a patient;
- Let physicians define their own standard of care based on continuing medical education courses they take;
- Imposed financial conflict-of-interest standards on board members that TMB officials say would have been almost impossible to enforce; and
- Required civil district court jury trials in Travis County for any physician whose license was revoked.
Senator Nelson says there was "overwhelming testimony, including from the Texas Medical Association, in support of maintaining complaint confidentiality" during hearings before the Health and Human Services Committee in May 2010. But there was no such sentiment when it came to insurance companies and others, she says.
"Individuals and groups testifying at the committee's hearing in May generally agreed that corporate entities like health insurance companies, pharmaceutical companies, and third-party administrators do not face the same threat of retaliation as individuals such as patients, their families and friends, and other health professionals," she said. "Consequently, they do not need the same confidentiality protections."
TMB officials say the number of complaints filed by insurance companies is small. And, they say, anonymous complaints comprise only 1 percent to 3 percent of all complaints TMB receives in any given year.
Dr. Teuscher says TMA wholeheartedly supported eliminating anonymous complaints, but could not support doing away with all confidentiality as proposed by HB 1013. "We are sensitive to the fact that there may need to be some confidentiality for patient complaints," he said. "The issue of retribution by the physician has been brought up before."
Fort Worth ophthalmologist Lee Anderson, MD, a former TMB member and president, says confidentiality also is important for physicians and other health care professionals who file complaints against other physicians, especially in cases involving alcohol, substance abuse, or other impairment issues.
"Otherwise, I think doctors would be reluctant to ever complain about another physician, especially in their own town," Dr. Anderson said.
And at least one TMB member was herself accused of having anonymous complaints filed against competitors. That member is no longer on the board.
Senator Nelson says the SB 227 provision giving the board more flexibility to deal with minor violations should make the agency's enforcement actions less adversarial.
"The medical board had only two options for resolving a complaint: dismissal of the complaint or public disciplinary action. I filed SB 227, which allows complaints involving minor violations to be resolved with a nondisciplinary remedial plan," she said. "My hope is that this bill will give the medical board a more corrective, rather than punitive, option for resolving minor cases, while also giving physicians an opportunity to learn and improve their practice."
Dr. Anderson agrees. He says that would have been a valuable tool when he was on the board. "We've always wanted a corrective action plan that would be nonpunitive unless the physician failed to complete the corrective action," he said.
The issue of anonymous complaints to TMB seems to have come to a head after the legislature passed Senate Bill 104 in 2003. SB 104 was a companion to the TMA-backed medical liability reforms. It gave TMB additional funding and tools to allow the board to focus more attention on physicians who were providing poor quality of care.
But some physicians grumbled that the board harassed them over minor administrative issues that had nothing to do with the standard of care. One political observer with knowledge of the board's operations says the board was aggressively going after minor violations, essentially "cherry picking" easily prosecuted violations to boost its disciplinary numbers.
As chair of a House Appropriations Subcommittee on Regulatory Agencies, Representative Brown held hearings in 2009 on how TMB was using the additional funding it received under SB 104. Those hearings turned into a gripe session for physicians who felt they had been unfairly treated in the board's disciplinary processes.
At those hearings, TMA urged lawmakers to maintain a strong but fair TMB.
"We believe all Texans should have confidence that they are receiving the highest quality of care and that their physicians are qualified, competent, and adhere to the highest ethical and professional standards," TMA Board of Trustees member (now board chair) A. Tomas Garcia III, MD, of Houston, told the subcommittee at the time. "To this end, we urge the Texas Medical Board to refocus its disciplinary efforts and to give priority to allegations of sexual misconduct, quality of care, and impaired physicians as mandated by Senate Bill 104, which the Texas Legislature passed in 2003 with our strong support."
This year, in testimony before the House Committee on Public Health, Dr. Teuscher said TMA felt a strong but fair TMB was a "lynchpin of the success of the liability reforms we passed in 2003." Texas physicians strongly supported SB 104 as a key part of the "reforms we enacted to rid this state of the epidemic of lawsuit abuse," he said.
A Restriction Too Far
Representative Brown filed his legislation to reform the TMB disciplinary processes in 2009 and again this year. But instead of just making the complaint process fairer for physicians, TMA and TMB officials say AAPS and Dr. Hotze lobbied to insert language into Representative Brown's bill that would have made it almost impossible for the board to protect patients.
For example, TMB Executive Director Mari Robinson, JD, says the provision on nontherapeutic prescribing would have hurt the board's ability to go after so-called "pill mills" that dispense huge quantities of narcotic pain medications to patients who then sell them on the street. (See "Chasing Dr. Feelgood.")
"The physicians are just selling prescriptions, and the patient turns around and sells the drugs," Ms. Robinson said. "I don't know that we would ever be able to prove a likelihood of harm there. The patient isn't actually taking the drugs; they're selling the drugs for money."
Additionally, she says, financial conflict-of-interest language would have been virtually impossible to enforce.
"The way that provision was written it said that no board member or any of their relatives to the second degree could have any ownership interest in common or in conflict with any licensee," Ms. Robinson said.
"That's pretty broad. You could say somebody has stock in Verizon and someone could have stock in AT&T and that would be a conflict under this bill. The difficulty is we don't track our licensees' investments, and I'm pretty sure y'all wouldn't want us to."
Relatives covered under the provisions would have included spouses, children, parents, siblings, and other relatives of board members.
As for requiring jury trials for those facing license revocation, Ms. Robinson says the regulatory system isn't set up to accommodate that, even though physicians may appeal disciplinary actions to district court.
"The government code requires that our trials go to SOAH, and ultimately a doctor-driven board decides what the appropriate penalty is," she said. "If you're going to have a system where the licensees are regulated by a licensee-driven board, you want that licensee-driven board to be able to make the penalty decisions. If you don't want to have a system where licensees are regulated by a licensee-driven board and you want it to be more like medical malpractice, then you would go to district court and have juries. But you really can't mix the two and have it make any sense."
Although the House passed Representative Brown's bill -- an action Dr. Hotze called a "grand slam home run" -- it turned into a pennant winner for TMA in the Senate, which opted to pass Senator Nelson's TMB reforms that earned TMA's support.
In the end, Dr. Teuscher says passage of the reforms means "TMA stood up for a fair yet strong medical board that doesn't harass doctors who are practicing good, ethical, and safe medicine."
Ken Ortolon can be reached by telephone at (800) 880-1300, ext. 1392, or (512) 370-1392; by fax at (512) 370-1629; or by email at firstname.lastname@example.org.
All articles in Texas Medicine that mention Texas Medical Association's stance on state legislation are defined as "legislative advertising," according to Texas Govt. Code Ann. §305.027. That law requires disclosure of the name and address of the person who contracts with the printer to publish the legislative advertising in Texas Medicine: Louis J. Goodman, PhD, Executive Vice President, TMA, 401 W. 15th St., Austin, TX 78701.
TMB Reforms at a Glance
Physicians will face less bureaucratic hassle from the Texas Medical Board (TMB) under a trio of Texas Medical Association-backed bills sent to Gov. Rick Perry for his signature.
"These three bills provide much-needed due process protections for physicians without endangering the 2003 liability reforms that have meant so much to Texas," TMA President C. Bruce Malone, MD, said in a letter urging Governor Perry to sign the bills into law.
One of the most important things the bills would do is prohibit the filing of anonymous complaints. They also:
- Require the board to notify the physician when insurance companies, pharmaceutical companies, or third-party administrators file a complaint;
- Increase the time for a physician to respond to a complaint notice from 30 days to 45 days;
- Allow physicians to tape the proceedings of a TMB informal settlement conference;
- Allow TMB to require a remedial action plan rather than impose a fine for a minor administrative violation;
- Institute a seven-year statute of limitation on bringing a disciplinary action, mirroring the TMB rule on how long doctors need to keep a patient's medical record; and
- Bind TMB to the ruling of an administrative law judge in a proceeding supervised by the State Office of Administrative Hearings.
Most TMB Complaints Dismissed With No Action
While some physicians may feel the Texas Medical Board (TMB) is gunning for them, the vast majority of complaints filed with TMB actually are dismissed with no action against the physician.
According to TMB statistics for fiscal years 2006 through 2010, roughly two-thirds of complaints are dismissed without action against the physician. Many are dismissed immediately because the board does not have jurisdiction or there is not enough information to identify who or what the complaint is about. The rest are dismissed within the first 30 days due to review by TMB staff or as a result of the response from the physician.
Only about one-third of complaints result in full investigation by TMB staff, and even fewer actually result in disciplinary action against physicians.
The chart below shows the number of complaints received between 2006 and 2010, how many were dismissed, and how many resulted in investigations and disciplinary action.
Dismissed within 30 days
Source: Texas Medical Board
TMB Enforcing Electronic Death Certificate Law
Physicians who fail to file electronic death certificates in a timely fashion once again are subject to discipline and a $500 fine per offense by the Texas Medical Board (TMB).
On June 1, TMB resumed enforcing a 2007 law that requires physicians to file death certificates electronically. The board had suspended enforcement of the law last year at the request of Sens. Bob Deuell, MD (R-Greenville) and Jane Nelson (R-Flower Mound), chair of the Senate Health and Human Services Committee, who were concerned about problems physicians were having with the registration process.
In an article in the January 2011 issue of the TMB Bulletin, board officials said many physicians also were unaware of the lag time between registering online with the Texas Department of State Health Service (DSHS) and actual access to the electronic death registration system. While TMB is responsible for enforcement, DSHS actually maintains the electronic death records.
The senators had initially requested that TMB extend the grace period for physicians to comply through December 2010. The board, however, decided to extend the moratorium through the end of this year's legislative session.
Before TMB suspended enforcement of the law, more than 100 physicians were facing disciplinary action for failing to comply with the law. After lawmakers asked the board to extend the grace period for compliance, the board dismissed pending disciplinary actions, refunded fines, and extended the grace period for registration through the end of the current session.
TMA is still working with the state agencies involved to resolve problems with the online registration process, but TMA Immediate Past President Susan Rudd Bailey, MD, says physicians need to familiarize themselves with the online system and register immediately if they anticipate needing to file death certificates.
For more information on electronic death certificates and to register online, go to www.dshs.state.tx.us/vs/requestTER.
Avenue Q meets the Texas Medical Board
By Hugh M. Barton, JD
The Tony Award-winning musical "Avenue Q" is an R-rated look at children's educational television. Among its memorable characters are the Bad Idea Bears, who cheerfully dispense harmful advice to the street's residents. How would they counsel a physician being investigated by the Texas Medical Board (TMB)?
The Complaint and Investigation Letters
A case typically starts with a letter stating that a complaint has been received (the "complaint letter"), along with a brief (and usually cryptic) description, and offering Dr. Smith the opportunity to respond before an "investigation" begins. The investigation letter typically informs Dr. Smith that an investigation is being commenced and directs him to complete a Medical Practice Questionnaire and send any relevant information not previously sent.
How would the Bad Idea Bears respond?
Ignore it. No one said the practice of medicine is a popularity contest. What are they going to do, anyway? After all, it's just paper with words on it.
Send a cranky response. The nastier the better. Characterize the complaint as "felonious, outrageous, and slanderous." Refer to TMB staff as "Gestapo," "KGB," or "goons." Demand an apology for wasting your time.
Respond but don't say anything. Tell TMB that you are a good doctor who did nothing wrong. Tell them that when someone with even minimal medical training -- certainly not TMB staff -- reviews the records, he or she will see that the treatment was exemplary. If TMB is so smart, they can figure that out for themselves.
Copy everyone. Send copies to every medical society of which you are a member, all of your elected representatives, including the governor, U.S. senators, U.S. representatives, state senators, state representatives, chairs of legislative committees, and so forth, so TMB will be intimidated because everyone important knows you are being treated unfairly.
Don't worry if your answers on the Medical Practice Questionnaire don't match your last license registration form. Where specific questions are asked, such as what is your average weekly patient caseload, answer "none of your business." TMB doesn't need to know such things.
Reality Check: A physician must respond in writing to all written board requests for information within 10 days of receipt, and failure to do so may, in itself, be grounds for disciplinary action. Nasty responses and copies to politicians never deter investigations.
In a case involving the charge of inappropriate or inadequate patient care, TMB will want to see the medical records of the patient(s) in question. The investigation letter will ask for the records within a specific time. Sometimes TMB will issue a subpoena for the records.
How would the Bad Idea Bears respond?
Stall. Tell TMB the records are in storage and you will get them when it is convenient.
Require consent. Tell TMB that you will release the records if they give you a valid signed authorization from the patient(s).
Demand payment. Tell TMB that you will release the records when they pay you a copying fee, preferably in excess of what TMB allows you to normally charge.
Give the records away. Send original records to the patient who is the subject of the request and tell TMB you no longer have them.
Reality Check: A physician is required to furnish copies of medical records within "a reasonable time period," usually 14 days. Patient consent is not required under the Medical Practice Act or the Health Insurance Portability and Accountability Act. There is a fee structure only when records are sought by subpoena, and this is much less (10 cents a page) than a physician can charge for routine release. Giving records away to avoid turning them over has resulted in license suspension.
Standard investigative techniques are used, including interviewing witnesses, obtaining records from hospitals, pharmacies, and other sources, consulting law enforcement agencies, and even undercover operations. The physician is not entitled to know when this is occurring. In quality-of-care cases, TMB sends records to a panel of physicians in the same specialty for review and opinion. Identities of the reviewers are not disclosed. Investigations are supposed to take 180 days, but seldom do.
There isn't much the Bad Idea Bears can do to mess this up.
Informal Settlement Conference
If, after investigation, TMB staff believe a physician has violated the Medical Practice Act or a board rule, it will schedule an "informal settlement conference" (ISC) in Austin. TMB sends notice of the ISC at least 30 days before the date. The notice includes:
- A statement that he or she can attend and participate,
- Specific written allegations, and
- A copy of information the board intends to use. In quality-of-care cases, this includes the expert panel's report stating the facts, the standard of care, and its application to the facts.
What do the Bad Idea Bears advise about the ISC?
Attendance. Schedule patients that day and tell TMB you are too busy to attend. That way, they will respect you for the dedicated physician you are.
Dress. Though panel members will wear business suits, wear a lab coat (or scrubs) and carry a stethoscope. This way, the panel knows you're serious about medicine and have to get back to work immediately.
Demeanor. First, express displeasure at being summoned to a ridiculous meeting. Then, like a politician, don't answer the questions asked, just the questions you want to answer. Clearly indicate that the panel cannot grasp the complexity of the case or the subtleties of judgment needed for proper care. If the complainant turns out to be another physician or insurance company, dismiss the matter as nothing more than retaliation by jealous persons.
The complainant has a right to attend and speak. When the complainant attends, yell "I'll get you!" so that he or she will know not to do it again.
Reality Check: Failing to attend will not stop the ISC, so the panel recommendation may be much worse than if one attends and defends oneself. Or, the panel might recommend filing of a formal complaint. The panel will not be impressed by clinical garb, especially if you live outside Austin. Likewise, expressing contempt for the ISC panel rather than dealing openly with the issue at hand is counterproductive. Whether someone is retaliating is not TMB's business -- it only matters if the complaint is true of false. And intimidating the complainant demonstrates that a physician may be dangerous to the public (not to mention convincing the complainant to seek a restraining order).
After the ISC
The ISC panel will typically either recommend dismissal or recommend an agreed order imposing some sort of discipline. Post-ISC negotiation may be possible, but consult your lawyer first. If understanding cannot be reached, a formal complaint is filed at the State Office of Administrative Hearings (SOAH), beginning a new process.
What do the Bad Idea Bears think about this?
Automatically take the case to SOAH. Say the panel recommends a $4,000 fine, three years of medical chart review, and 30 hours of focused continuing medical education (CME). Go to SOAH because you really think a $3,000 fine, two years of chart review, and 20 hours of CME is more fair. What's another year (and more legal fees) to resolve the case?
Accept the order and then try to get out of it. So what if you are told at the ISC that the agreed order is public. So what if the agreed order states "This is a public order" right above your signature? Complain if the local newspaper publishes a story about your case and demand the order be rescinded.
Reality Check: If the ISC panel recommends a truly draconian penalty -- one that seriously impairs the ability to practice -- then go to SOAH. But not over small details; the added time and expense will not be worth the effort. It may be possible to modify the order later on (such as reduce the term of chart review), but there is no procedure to "lift" an agreed order once entered. If the prospect of a public order is itself too much to bear, then reject it up front and litigate.
The Bad Idea Bears' havoc may be humorous on Avenue Q, but real investigations are not funny. As of the end of fiscal year 2009, there were 47,759 physicians in Texas. From fiscal years 2001 to 2009, TMB received 52,497 complaints; hence, every Texas physician has statistically been the subject of 1.099 complaints in that time.
TMB also opened 19,421 investigations in that time -- the equivalent of 40 percent of all Texas physicians. Finally, there were only 3072 disciplinary actions taken by the TMB.; that's equal to 12.86 percent being disciplined in just eight years.
Due to the odds of having a non-valid complaint filed with the TMB to go through this process, physicians should have an understanding of what to do -- and not do.
Mr. Barton is an Austin attorney and former member of the TMA Office of the General Counsel. This commentary is based on actual physician responses to TMB inquiries.