TMB's Austin Showdown: TMA Wants Strong, But Fair, Board

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Legislative Affairs Feature - December 2007  

 

By Ken Ortolon
Senior Editor  

An October legislative hearing ostensibly intended to examine how the Texas Medical Board (TMB) uses increased funding approved by the legislature earlier this year turned into a forum for physicians to question the fairness of the board's disciplinary process.

Dozens of physicians appeared before the House Appropriations Committee's Subcommittee on Regulatory Agencies to complain about what they perceive as a lack of due process in TMB disciplinary actions. Many also complained about the length and cost of defending themselves before the board, particularly when complaints stem from minor violations of the Medical Practice Act rather than poor quality of care.

In addition, some lawmakers accused the TMB of using "fear and intimidation" against physicians. "I'm hearing a lot about fear today," said state Rep. Corbin Van Arsdale (R-Tomball), who added that the TMB has a "credibility problem" with the physicians it licenses and disciplines.

The Texas Medical Association believes the TMB disciplinary process may need some changes, but lawmakers should maintain a strong board.

"The physicians of Texas, our medical associations, and all Texans need and desire a strong Texas Medical Board, one that does its job effectively and fairly," said A. Tomas Garcia III, MD, president-elect of the Harris County Medical Society and a member of the TMA Board of Trustees. "The board is charged with licensing physicians, protecting patient safety, and maintaining high standards for the practice of medicine in the state. It is a charge we support without question." 

TMA Recommends Improvements  

While acknowledging that many physicians have been critical of how the board processes complaints, Dr. Garcia urged lawmakers to take several actions to keep the TMB strong but also refocus its enforcement activities toward patient care issues.

"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," he told the subcommittee. "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."

Dr. Garcia also said the TMB should consider giving physicians more and complete information about the nature of complaints against them. He cited a recent Harris County Medical Society survey of physicians who had complaints filed against them that found 63 percent feel they did not receive enough information about the complaint to explain their side.

He further suggested the TMB report aggregate minor administrative violations in its newsletter rather than naming each individual physician, and called on the board to launch a more substantial effort to educate physicians about the board's investigative and settlement processes.

Finally, Dr. Garcia urged lawmakers to approve funding to enable the TMB to develop an electronic, Web-based application to streamline the licensure process.

"While the legislature voted a modest increase for the board to hire additional staff to process applications, we would support additional technology investments to more quickly achieve efficiencies in this largely paper-driven process," he said.

Meanwhile, TMB officials said they already are working to address some of the concerns brought up at the hearing. TMB Enforcement Director Mari Robinson said the board is developing a fast-track system for minor violations that would speed processing times from roughly nine months to between 30 and 60 days. She said those violations would be treated "more like traffic ticket violations."

The board held a stakeholders meeting in late October to discuss proposed rules for the fast-track system and was expected to present the rules to the TMB for preliminary approval at its November meeting.

TMB Executive Director Donald Patrick, MD, JD, says the fast-track system would cover five types of administrative violations:

  1. Not signing a death certification in a timely manner,
  2. Not releasing medical records in a timely fashion and at a reasonable price,
  3. Making false statements in advertising about board certification,
  4. Not completing required continuing medical education, and
  5. Not posting a sign telling patients how to file complaints with the TMB.

A physician who commits one of these violations could simply sign an agreed order without having to go through an informal settlement conference, pay any fine levied by the board, and not have his or her name reported in the TMB newsletter, Dr. Patrick says.

He hopes to get final board approval of the rules in time to implement the changes by early March.

If the new fast-track complaint system is successful, it should enable the board to focus more resources and staff time in investigating standard-of-care complaints, Dr. Patrick adds.

Subcommittee Chair State Rep. Fred Brown (R-College Station) applauded that proposal. "That would save tremendous resources for the state and, particularly, for the docs," he said.

TMB staff also said an online licensure system could be operating as early as next spring, and the board could soon approve a rule to publish the numbers of disciplinary actions for minor violations rather than list each physician by name. 

Changes in Attitude  

The tone of the hearing marked a major reversal from 2003 when the board came under harsh criticism because of a series of Dallas Morning News articles alleging it had failed to deal effectively with physicians who committed sex offenses or other serious acts of misconduct.

TMB President Roberta Kalafut, DO, told the subcommittee that senators made it clear in her confirmation hearing that the legislature "would not tolerate" a board that did not discipline doctors for violating the Medical Practice Act.

Also in 2003, lawmakers enacted major tort reforms and passed the TMA-backed SB 104 that significantly strengthened the TMB's enforcement powers to protect patients.   TMA and other tort reform supporters believe maintaining a strong TMB is essential to protect those reforms. TMB member Melinda Fredricks told the subcommittee there could be a down side to the reforms if TMB doesn't remain strong and motivated to do the right thing.

"I believe that some of our detractors want nothing more than for the board to be undermined and weakened so that tort reform will be removed or weakened," Ms. Fredricks said.

  However, TMA and some physicians and lawmakers believe the TMB used those additional powers to crack down on minor record keeping or advertising violations instead of focusing on the more serious charges of sex offenses or standard-of-care issues.

Representative Brown said in an interview before the hearing that he "absolutely" thinks the board spends too much time going after minor violations rather than bad doctors.

"I've had doctors from all over the state calling me since May, telling me their horror stories," Representative Brown said. "All the stories I've heard had to do with minor violations having to do with paperwork, advertising issues, kind of nonsensical issues like that. And they tell the same horror story that for eight to nine months they had to worry whether they were losing their license and if they were going to have to go out and find a new career, and the whole time spend $10,000, $15,000, $20,000 in legal fees to defend themselves to finally get to the informal settlement conference."

Lawmakers also questioned the board's acceptance of anonymous complaints and, in cases where the accuser is known, its refusal to tell the physician who filed the complaint.

Physicians also complained they do not receive the actual complaint and often do not get enough information about the charges against them to defend themselves adequately. Others charged that several complaints came from insurance companies more concerned with how much money a doctor was costing them than about quality of care.

Laredo general practitioner Francisco Pena, MD, said the board subjected him to double jeopardy. He said the board initially exonerated him in a complaint stemming from a cesarean section following a failed vaginal delivery. However, the board reopened his case four months later. He agreed to a public reprimand, but then found the board also was ordering him to cease doing obstetrics for 10 years.

"I accepted the sanction. Now I found out I was deceived and I paid with a pound of flesh," Dr. Pena said.

According to the TMB Web site, Dr. Pena's discipline followed two complaints involving cesarean sections after failed vaginal deliveries. The board order states that Dr. Pena "was neither trained nor privileged to perform C-sections." The order also says Dr. Pena advertised he was board certified, but neither the American Board of Medical Specialties nor the Bureau of Osteopathic Specialties recognizes the boards that certified him. 

The Letter of the Law  

TMB members and staff defended the agency. Ms. Robinson told the subcommittee that no physician has ever been disciplined based on a complaint filed by an insurance company. Dr. Kalafut added that less than 0.01 percent of disciplinary actions resulted from anonymous complaints.

Ms. Robinson noted that by law all health professional licensing boards except the massage therapy board accept anonymous complaints. She defended use of anonymous charges, saying patients, physician colleagues, or others might not file legitimate complaints for fear of retaliation.

In an interview with Texas Medicine in September, Dr. Patrick pointed out that state law requires the board to enforce minor Medical Practice Act violations such as failure to comply with continuing medical education requirements. Dr. Patrick also said 70 to 80 percent of the board's disciplinary actions involve standard-of-care issues.

Some board critics complain that the TMB is pursuing a large number of minor violations to pad its enforcement numbers. If that's true, Representative Brown says he doesn't understand the motivation for such actions.

"We don't ask them for quotas," he said. "No one's ever said we want to see some big numbers."

But, in fact, lawmakers have set performance standards for the TMB and other health professional licensing agencies in the appropriations act. Provisions of the budget bill for the 2008-09 biennium directs the TMB to "make every effort to attain" certain performance levels, including taking disciplinary actions in 18 percent of complaints brought before the board.

Dr. Garcia gave the subcommittee a copy of a report prepared by TMA's Patient-Physician Advocacy Committee, which reviewed all TMB disciplinary actions from 2003 through 2005. That report found that almost one-fourth of all physicians sanctioned were disciplined for minor infractions of the Medical Practice Act or of TMB rules.

"The authority to sanction others is commensurate with responsibility to act reasonably," the TMA report concluded. "The legislature recognizes this and has granted TMB discretion in pursuing certain complaints. TMA urges TMB to utilize its discretion in administrative violations and refrain from disciplinary action for good cause, such as mistake by staff or physician."

Following the hearing, Dr. Kalafut said lawmakers only heard one side of the stories told by physicians disciplined by the board because law prohibits board members from openly discussing those cases. 

Moving Forward  

In the September interview, Dr. Patrick admitted that physicians generally are "anxious" about the board's vigilance "and afraid that they're going to be the next name in our newsletter." But, while physicians think the board can be unfair, the public also doesn't think the board is being fair, he said.

"The reason is that they send in 6,000 complaints a year to us and at the end of the day 5 percent end up getting an order," Dr. Patrick said. "They say that's not fair."

Dr. Patrick said he hopes to make the enforcement process more "objective" and develop processes to quickly dismiss meritless cases, and handle minor violations where there is no patient harm without an informal settlement conference.

He also said he'd like to see board members sitting in on informal settlement conference be more consistent in how they apply the law and mete out punishment.   However, he thinks they do pretty well considering that 47 different board and district review committee members hear the cases.

Dr. Patrick says the board has accomplished much in his six years as executive director, including hiring good managers; persuading the press, the public, and the legislature that it is being vigilant to protect patients; and "sidelining dangerous doctors."

Still, the board needs to do a better job in persuading physicians that accountability is good for the profession, he said.

"It's a huge plus for the medical profession that we've become vigilant. If we hadn't done 200 informal settlement conferences by the first of December of 2002, tort reform would not have happened,"   he said.

"Keeping a strong Texas Medical Board has been and remains one of TMA's top priorities," said association President William W. Hinchey, MD. "We will continue to make suggestions to the board and the legislature for how the board can be more fair and effective both for physicians and for our patients."

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  Ken Ortolon .   

 

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