TMA Testifies SBs 190 and 191: Improve TMB Process

Testimonies SBs 190 and 191 by Sen. Jane Nelson, R-Lewisville

  Testimony SB 190
By: Les Secrest, MD, Member of TMA's Council on Legislation      

 Madam Chair, members of the committee, I am Dr. Les Secrest. I am a psychiatrist from Dallas and I am speaking on behalf of the Texas Medical Association and our more than 45,000 physician, resident and medical student members. 

 We strongly support Senator Nelson’s bill and, like SB 177, we believe it addresses several useful process improvements for the Texas Medical Board. It strengthens both the effectiveness of the Board as the state’s licensing agency and the fairness with which it deals with both physicians, its other licensees and the public. 

 Among the improvements we support in this bill are provisions which: 

  • Requires that complaints be filed within seven years of occurrence, except in the case of minors. This mirrors medical record retention policies and is clearly a fairness issue. 
  • Ban the truly “anonymous” complaint except a complaint brought by an insurance company, its agent or a pharmaceutical company or its agent. No licensing board should accept a truly anonymous complaint and a business complaint that could be viewed as harassing should be disclosed. But, we believe there is good reason to maintain confidentiality for most complaints, at least through the initial informal process. 
  • Increases the statutorily set time for a physician to respond to notice of complaint from 30 to 45 days. Realistically, it may take up to two weeks for the Board to process a complaint, determine if it has jurisdiction and whether the complaint rises to a level of concern warranting a notice to a physician. The original intent was to give licensees 30 days to respond and this change from 30 to 45 days would accommodate the Board’s processes and a reasonable period for response. 
  • Allow the taping of an informal settlement conference at the request, and I believe expense, of the physician. Again, this is an issue of both process and fairness. 
  • Amends current statutes regarding temporary permits for physicians seeking faculty positions to disqualify a physician who held a medical license that was surrendered or cancelled for cause or whose license is under investigation by another state or country. 

 Other provisions deal with process improvements for the Board as the licensing agency for Physician Assistants, Acupuncturists and Surgical Assistants. We believe they are straightforward. 

 Senator Nelson, members of the committee, I thank you for the opportunity to speak in support of SB 190 and will attempt to answer questions if that is your wish. 

Testimony SB 191     

 Madam Chair, members of the committee, I am Dr. Les Secrest. I am a psychiatrist from Dallas and I am speaking on behalf of the Texas Medical Association and our more than 45,000 physician, resident and medical student members. 

 We strongly support Senator Nelson’s bill and believe it addresses one of several  very useful process improvements for the Texas Medical Board. It strengthens both the effectiveness of the Board as the state’s licensing agency and the fairness with which it deals with both physicians and the public. 

 Senate Bill 191 is focused exclusively on the proposal that the Texas Medical Board should be bound by the decision of an Administrative Law Judge – in a proceeding supervised by the State Office of Administrative Hearings.  

 At the conclusion of the initial investigative process, the Board and the licensee hold an Informal Settlement Conference with the physician in which the nature of the complaint and opinions of experts are considered. The Board may offer an agreement but the physician may elect o proceed – as is the physician’s right – to a formal proceeding with an Administrative Law Judge. This becomes a formal proceeding governed by rules of evidence – including the disclosure of complainants. 

 However, at this time, the Board is not bound by the Judge’s decision as the trier of law and fact.  

 Again, we believe it is fair that both the Board and the physician be bound by this judicial determination. At the same time, this bill reserves to the Board the determination of fine or sanction. Nevetheless, either party could still challenge the outcome in state district court.  

 Frankly, the current situation seems unfair in that the Administrative Law Judge in a SOAH proceeding could rule in favor of a physician, but the Board could ignore such a ruling and proceed as if it never existed. 

 Again, we believe that this provision is a matter of both fairness and due process. And I believe the Board supports this proposal. 

 Again, Senator Nelson, members of the committee, I thank you for the opportunity to speak in support of SB 191 and will attempt to answer questions if that is your wish. 

82nd Texas Legislature Testimonies 

     


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