Legislative Affairs Feature - June 2009
Tex Med . 2009;105(6):21-25.
By Ken Ortolon
The Texas Medical Board (TMB) came under harsh criticism in the Texas Legislature in 2007 over its slowness in licensing new physicians and for disciplinary processes that critics said were unfair to physicians.
But with six new licensing personnel authorized by the legislature, TMB has drastically reduced the lag time in granting new licenses. And, some major changes in how the board handles minor administrative violations of the Medical Practice Act have received widespread physician approval.
Now, the board is looking to move forward with a new leadership team that for the first time has a nonphysician at the agency's helm. In February, the board hired Mari Robinson, JD, as executive director and Alan T. Moore, MD, as the agency's first medical director.
Both Ms. Robinson and Dr. Moore say this "dual-director" model should get physicians involved in initially reviewing complaints against doctors and should possibly speed up resolution of meritless allegations.
Because of continuing complaints about the board from physicians who have had bad experiences, Texas Medical Association leaders have worked with the agency to improve its licensing and enforcement activities since the 2007 legislative session.
TMA President William H. Fleming III, MD, says that both licensing times and the handling of minor violations have significantly improved.
"TMA supports a strong and fair Texas Medical Board," he said.
A New Paradigm
Traditionally, TMB's executive director has been a physician. State law allows the board to hire a nonphysician to head the agency, but requires it to hire a medical director if the executive director is a nonphysician.
Ms. Robinson, previously the TMB director of enforcement, became interim executive director in October. Dr. Moore also came on board in October as interim medical director. Both have since landed their new jobs on a permanent basis.
TMB leaders say this arrangement brings Texas in line with most states.
"Since TMB's executive director has traditionally been a physician, this dual role is new for Texas and is used by most other state medical boards to bring administrative, legal, and medical expertise into leadership roles," said TMB President Irvin Zeitler, DO. "We are very satisfied with the talent and skill Ms. Robinson and Dr. Moore bring to these positions and look forward to the work they will do to fulfill the board's mission of public protection."
Ms. Robinson says the volume of license applications and complaints TMB receives makes it almost impossible for one person to head the agency.
Ms. Robison says she will focus on legal issues and agency administration, such as human resources and budget issues. Dr. Moore will work closely with the agency's expert review panels and take primary responsibility for medical issues and standard-of-care complaints.
Dr. Moore says that having a medical director whose sole focus is on standard-of-care issues will bring more physician input into the initial screening of complaints.
"The volume of complaints the board has been experiencing in the past several years has been increasing, which means there's more need for additional expertise to make sure all complaints relating to standard of care are handled in an appropriate fashion," he said.
"I think it's in the best interest of the citizens of Texas and the physicians of the state, as well, that the medical board has a medical director who focuses primarily on the medical issues while the executive director focuses on different issues."
While the board and agency staff adjust to the new leadership model, the agency is making strides in improving its licensing processes. In April, TMB announced that the average time to license a physician was only 30 days.
That is a vast improvement over September 2007, when the average time peaked at 100 days and some physicians waited several months to get their Texas license. That lag time prompted the legislature in 2007 to mandate reducing the average license application processing time to 51 days. The legislature also appropriated funds for TMB to hire six additional staff members for its licensure department.
Officials attribute much of the delay in license application processing to a huge jump in the number of license applications in 2006.
Jaime Garanflo, TMB director of licensure, says the agency had seen a gradual increase in license applications during the three years prior to fiscal year 2006. However, in that year, applications jumped from about 2,900 to more than 4,000. Most observers credit Texas' 2003 health care liability reforms for helping to draw many of the new physicians to the state. The agency simply didn't have the personnel to handle that increase efficiently.
Since 2007, the additional staff has enabled the board to reduce license application processing time and its backlog of applications. TMB officials also say a new online application system called the Licensure Inquiry System of Texas (LIST) improved license application processing efficiency.
LIST is a Web-based system that allows applicants to check the status of their application 24 hours a day, seven days a week. They can see which documents the board has on file and which documents it still needs to obtain to process the application.
Applicants also can communicate via e-mail with agency staff working on their applications.
"It's been very, very efficient in that it's freed up a lot of time that we don't have to spend trying to respond to people regarding the status of their application because they can go online and get that status," Ms. Robinson said.
Ms. Garanflo says the improvements enabled TMB to license a record 3,600 physicians in fiscal year 2008. She anticipates the agency will again see about 4,000 applications this fiscal year and license between 3,300 and 3,600 new doctors,
She also says there is no reason to believe the volume of applications will begin to wane. "My guess is that it will start climbing again because the population is growing," she said.
Beefing Up Enforcement
While licensure time has improved, agency officials say huge increases in the volume of complaints has stretched the enforcement staff to the limit. The number of complaints jumped from about 5,200 in fiscal year 2006 to roughly 6,900 in 2007, Ms. Robinson says. They declined slightly to 6,500 in fiscal year 2008, but Ms. Robinson says complaints seem to be running higher this year.
Ms. Robinson says a combination of factors likely led to the increase in complaints. First is the fact that the board has more licensees than before. Second, the 2003 medical liability reforms reduced the number of liability lawsuits, prompting some people who might have sued to file a TMB complaint instead.
Finally, some legislation passed in 2007 requires physicians to put the board's name, phone number, and address on all billing statements. The inclusion of TMB information on billing statements is generating complaints.
TMB asked the legislature this year for about $2 million in the next biennium to hire 11 additional enforcement staff members. Both the House and Senate included that funding in their versions of the state budget bill, which was still awaiting final action as Texas Medicine went to press.
Included among the 11 new positions is a full-time physician who would be involved in the initial review of complaints.
Meanwhile, rules changes adopted last year to speed investigation and resolution of minor administrative violations seem to be working well, Ms. Robinson says. The new fast-track process - which covers items such as failure to file a change of address with the board, failure to sign a death certificate in a timely manner, and failure to obtain required continuing medical education - has been used in 50 to 75 cases, and Ms. Robinson says the physicians involved seem to like it.
"The feedback that we've gotten is the physicians are happy, particularly with the aspects that it's resolved quickly and their name is no longer in the newsletter," she said. "That, for them, was very significant because, related to administrative violations, they really didn't want their name in the newsletter next to someone who committed more egregious acts."
Dr. Fleming, a former TMB president, also says removing the minor infractions from the board's newsletter was a major improvement in the eyes of physicians. "That's a real, real big step," he said.
Ms. Robinson says the fast-track process is resolving complaints on average in 67 days versus 280 days for complaints that go through the traditional process.
Fending Off Attacks
Critics, however, continue to attack the agency in the legislature, claiming that it is too harsh on physicians.
In April, Dr. Fleming testified against House Bill 3816 by Rep. Fred Brown (R-College Station), which he says would weaken TMB's ability to protect the public. Among the bill's provisions are making public the identity of all complainants and all physicians serving on expert review panels.
Particularly concerning to Dr. Fleming is language that limits the board's ability to sanction a physician for nontherapeutic prescribing. This provision would prevent the board from sanctioning a physician for nontherapeutic prescribing unless they can show likelihood of harm to the public.
"Let me be crystal clear," Dr. Fleming told the House Public Health Committee. "We need a strong and fair board to protect the patients of Texas, uphold high ethical and professional standards for physicians, and maintain the professional image for all Texas physicians."
An amended version of HB 3816 passed the House Public Health Committee in late April. While the amended version included the nontherapeutic prescribing provision, board leaders agreed with TMA on several key improvements to the board's disciplinary processes. At press time, these included eliminating anonymous complaints, allowing tape recording of informal settlement conferences, and binding the board to findings of fact and conclusions of law reached by State Office of Administrative Hearings judges.
While some physicians believe the board is too harsh, a recent review of state medical boards by the advocacy group Public Citizen ranked TMB 33rd among boards in all 50 states and the District of Columbia in the number of serious disciplinary actions it takes. The rankings are based on how often a board has revoked a medical license, had a doctor surrender a license, or suspended or restricted a license.
TMB officials say the board actually ranks much higher if you consider all sanctions issued.
"Public Citizen uses its own formula for calculating rankings, which considers the severity of disciplinary actions. We believe all disciplinary actions are significant and are tailored to fit the violation," Ms. Robinson said. "According to the Federation of State Medical Boards' 2008 report, Texas is 11th, even including very small boards that can score high with only a small number of actions.
"Texas has seen a huge influx of doctors; we carefully screen our incoming applicants, and these new docs are less likely to generate complaints as they begin practice in Texas," she added. "It may take a while for our actions to catch up with our booming physician population. In the meantime, we are working with the legislature for the resources to improve our processes for fair treatment of physicians who come before us, while also protecting the public."
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 e-mail at Ken Ortolon .
New TMB Medical Director Hopes to Impact Quality
During more than 20 years of active practice as a pathologist at Seton Medical Center in Austin, Alan T. Moore, MD, says his greatest satisfaction was the constant interface with physicians from a broad array of specialties and addressing divergent issues that cut across all specialty lines.
Now Dr. Moore hopes to bring the expertise gained from that experience to bear on his new job as medical director of the Texas Medical Board (TMB).
"I feel that I gained a broad knowledge of medicine crossing a multitude of different specialties at a multitude of different levels as a result of my pathology practice," said Dr. Moore. "That's what I bring to the table. I feel like I can provide additional expertise serving in that capacity."
Dr. Moore's hiring was necessitated by the TMB's decision to hire Mari Robinson, JD, as the agency's new executive director. Traditionally, TMB executive directors have been physicians; state law requires the agency to have a medical director if the executive director is a nonphysician.
A graduate of The University of Texas at Austin and UT Southwestern Medical School, Dr. Moore is board certified in anatomic pathology, clinical pathology, and hematopathology. He practiced in Austin for more than 20 years and has served as president of Clinical Pathology Associates, as well as on the board of Clinical Pathology Laboratories.
Dr. Moore also has been medical director of the laboratory, chief of staff, and the transplant pathologist for the transplant program at Seton Medical Center and president of the Texas Society of Pathologists,
He says he had little involvement with TMB before applying for the medical director position, but became interested in the job because of his past interest in quality-of-care issues.
"In practicing pathology, it was always important to me to be in an environment where you practice medicine of the highest possible quality," he said. During his tenure as chief of staff at Seton, he says the common thread running through each department of the hospital was that "they were all intently focused on maximizing the quality of the physicians within their sections.
"I thought that was the way medicine needs to be practiced," Dr. Moore said, "Work with a group of physicians who are going out of their way to make sure that not only their practice but also that of their immediate peers was up to a certain level. If we go forward and do that in medicine, we're not only benefiting the patients, but we're also benefiting the medical community. I thought that by pursuing this philosophy at the medical board I would be able to pursue my desire of attempting to ensure the quality of medicine on a larger scale than I had done in my hospital practice."
Dr. Moore was hired in October on a part-time basis but says it quickly became apparent that being medical director was a full-time job. "Once I got here and saw the volume of cases, the magnitude of the work, and the complexity of some of the medical issues, it became pretty clear that this is a full-time position," he said.
Dr. Moore plans to be intimately involved in the handling of complaints against physicians throughout the investigative process. He believes having more medical input up front will help the board make better determinations of "which cases perhaps need to go forward and which cases should be dismissed."
In his short tenure at TMB, Dr. Moore says he has been reassured that the "vast majority of physicians are practicing a very high quality medicine, and they are dedicated to what they're doing." He also is pleased with the TMB staff's commitment to protecting the health, safety, and welfare of the public.
"They take their job very seriously," he said. "They are very dedicated individuals who want to be fair, honest, and above board in what they're doing. That's been a pleasant discovery for me."
Dr. Moore says his own goals are to fulfill TMB's mission to protect the public and to do so in a manner that is fair to physicians.
"We are here to work for the public, we are here to work for the citizens of Texas," he said. "And I take this duty very seriously. I feel that we must be firm and diligent in carrying out our mission statement. On the other hand, as we are being firm in carrying out the mission statement, I feel we have an equally important obligation to be fair to the physicians who are being investigated."
Drs. Crocker, Snoots Appointed to TMB
Four physicians are among Gov. Rick Perry's seven appointments to the Texas Medical Board . Two of the physician members are new; the other two were reappointed. All are subject to Senate confirmation, and their terms expire in April 2015.
The new physician members are Patrick J. Crocker, DO, chief of emergency medicine at Dell Children's Hospital in Austin, and Dallas orthopedic surgeon Wynne M. Snoots, MD, medical director of the Baylor Sammons Bone Tumor Center at Baylor University Medical Center. Brownsville obstetrician-gynecologist Manuel G. Guajardo, MD, and Dallas pulmonary and critical care specialist Allan N. Shulkin, MD, were reappointed to new terms on the board.
Dr. Crocker replaces cardiac electrophysiologist Larry Price, DO, of Belton, the board's vice chair. Dr. Snoots replaces Amanullah Khan, MD, of Dallas,an oncologist. Dr. Price's and Dr. Khan's terms had expired.
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