Making the Bite Equal the Bark

Legislature Gives Board of Medical Examiners More Power

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Legislative Affairs Feature -- September 2003

By  Ken Ortolon
Senior Editor

On June 20, the Texas State Board of Medical Examiners (TSBME) suspended the medical license of Dallas general practitioner Daniel Andrew Maynard, DO, whose office had been raided by local, state, and federal law enforcement officers just 10 days before on information regarding possible nontherapeutic and medically unnecessary prescribing.

Although no criminal charges had been filed against Dr. Maynard, a TSBME disciplinary panel met on June 20 and determined that he had violated several provisions of the Medical Practice Act, including not keeping adequate medical records, failing to practice medicine in an acceptable professional manner, exhibiting unprofessional and dishonorable conduct, and prescribing dangerous drugs and controlled substances to known drug abusers. The panel issued the suspension and ordered Dr. Maynard to appear at a hearing. In early July, Dr. Maynard waived his right to a hearing and agreed to attend an informal settlement conference within 30 days, a TSBME spokesperson said.

The board's action marked its first use of new authority approved by the Texas Legislature and signed into law by Gov. Rick Perry -- ironically, on the same day as the raid at Dr. Maynard's office -- that allows the board to issue temporary suspensions without notice or a hearing when it believes a physician presents a real danger to patients or the public.

That new authority is part of a sweeping set of reforms that will strengthen the board's enforcement capabilities and, hopefully, silence critics who believe the agency has been reluctant to remove bad doctors from the profession.

Some attorneys who defend physicians before the board believe the new powers could lead to abuse of physicians' due process rights. But the Texas Medical Association supported the measure and believes that some provisions will benefit physicians who find themselves the subject of a TSBME investigation, including speedier resolution of cases and assurance that quality of care issues are reviewed by experts from the physician's own specialty. TMA believes the new law will restore credibility to the board as a fair, but tough, physician watchdog.

A Real Danger

Senate Bill 104, sponsored by Sen. Jane Nelson (R-Flower Mound) and Rep. Ray Allen (R-Grand Prairie), changes so many operations that TSBME officials say they will have to rewrite a majority of the agency's rules. Some of those changes were to be considered by the board in August, and most must be in place by Jan. 1, 2004.

Besides acting without notice or hearing if it believes a physician poses a continuing threat to public welfare, the board, for the first time, also can temporarily restrict a physician's license. The board must immediately notify the physician of the action and schedule a hearing within 10 days.

Under previous law, the board was required to hold a hearing before a license could be suspended and to prove a physician constituted a "real and present danger" to patients. Now, the board only has to show that the physician is a "real danger."

TSBME President Lee Anderson, MD, of Fort Worth, says the changes will allow the board to send bad doctors "to the sidelines" swiftly. "Under the old rules, we would have to have a temporary suspension hearing. That's a rules of evidence hearing so an investigation would have to be developed. It may take a few weeks to get that going. With the new law, we can take action based on prudent information without having to wait two or three weeks."

Austin attorney Tony Cobos, JD, a former general counsel to TSBME who now represents physicians before the board, says TSBME must use its new authority judiciously.

"Sometimes it's a subjective issue as to whether somebody is in fact a real danger. In some cases, there's a bad outcome and, depending on how you look at it, you may think there's a danger when there may not be one. This goes to interpretation by the board of what it considers a real danger. That's a very powerful tool, and the board should be careful in how it's used."

Another Austin attorney, Tim Weitz, JD, says physicians should have the right to a hearing before having their license suspended. "There are times when people come in with explanations that are enough to allay their fears; by laying eyes on them face to face and talking to them, a suspension's not necessary."

Mr. Weitz says, however, the power to temporarily restrict a physician's license rather than suspend it will give the board some flexibility it did not previously have.

"That's some flexibility that has long been needed," said Mr. Weitz, also a former TSBME general counsel. "Board members will tend to err on the side of caution to protect the public. If the only arrow they have in their quiver is a suspension, they'll go that way when a restriction would be sufficient."

Call in the Experts

Another major provision of SB 104 requires the board to use expert physician panels to review quality or standard of care cases. These panels, which will include three physicians in the same or similar specialty as the doctor being investigated, will issue written reports on whether the standard of care was violated.

Wichita Falls pathologist Susan Strate, MD, who chaired the TMA Ad Hoc Committee on Patient Safety that developed the association's policy on TSBME reform for the 2003 legislative session, says making sure that quality of care cases are adequately reviewed by appropriate physician experts was a major priority for TMA.

"We wanted to make sure we had an expert panel that was peer-matched with the physician who was being investigated," she said. "Our concern was that physicians who were reviewing cases were not adequately peer-matched. You should have more than one physician of the same or similar specialty reviewing a case where there is a question of standard of care."

Mr. Weitz says expert review panels should help the board, as well as physicians. "The board has such a tremendous amount of detailed and, in some cases, complex medical information coming in, they're relying on a limited staff, and they don't always have the specialty expertise they need," he said. "The physician specialty panels go a long way to address natural deficiencies that you have with a very diverse staff or a very diverse board. You need the extra specialty folks to buttress them and help them with the tremendous work load and some very complex stuff."

Dr. Anderson says the board always uses peer-matched experts but doesn't always seek out more than one expert opinion. "To some extent, some of the criticisms we've received have been reasonable in the sense that we ought to have more than one expert opinion, and frequently we do," he said. "We'll be required now to do that, which I don't have any heartburn with at all."

While physicians will be assured that standard of care cases are reviewed by appropriate experts, that also may mean the board will have stronger cases against physicians who truly do violate the standard of care.

"It's a double-edged sword," Dr. Anderson said. "Clearly, if you have three experts who don't agree with you, it's going to certainly strengthen the case."

Mr. Cobos says the expert reviews are "probably the best aspect of the bill," but he says the board must remember that there's room for disagreement about what constitutes appropriate care by a physician.

"Theoretically, if you have a panel that agrees on an issue, there may be more of an argument that the issue is substantiated," he said. "But you still may have a situation where three panel members may think that there was a deviation from the standard of care and something else should have been done, but that doesn't necessarily mean that the physician didn't have a valid basis to go forward and prescribe the care or treatment that he did."

Follow the Money

Other important provisions of the bill require the board to complete investigations within 180 days and streamline the license renewal process. It now has authority to deny licenses to physicians whose licenses have been revoked in other states. But possibly the most important provision of the bill is one that may be painful to physicians -- an $80 surcharge added to license renewal fees.

Under SB 104, physicians renew their license every other year, rather than annually. The $80 surcharge, which affects licenses renewed after Jan. 1, 2004, will cover both years and will be in addition to the current $334 annual renewal fee.

With approximately 55,000 licensees, the surcharge should generate more than $4 million every two years. The money will be used to implement the expert review panels and the board's enforcement activities. TSBME officials say those funds will enable the board to hire an additional 20 employees, most of whom will be attorneys, investigators, and support staff. The board currently has eight litigation attorneys and 16 investigators.

"There's no doubt that the monetary impact will be incredibly beneficial," Dr. Anderson said. "To have the dedicated funds that cannot be reappropriated to non-medicine issues will give us the ability to hire the attorneys we need and to develop a better consultant panel, and it will give us the investigative strength not only to shorten the duration of the investigation but also to improve the product."

By going to a biennial renewal process, the board also will get some administrative relief that will allow it to focus more attention on enforcement, Dr. Anderson says.

The board has been harshly criticized both by physicians and by patient advocates for the length of time it takes to investigate complaints and take action. In fact, for more than a decade, TMA has advocated increased funding to improve the board's enforcement activities. During sunset review of the agency in 1993, TMA even proposed that the entire board be removed and replaced with new members if necessary to get the agency on track.

Dr. Anderson says the additional staff that the new funds will provide will enable the board to meet the new deadline of completing investigations within 180 days.

A tight state budget made higher fees the only way to get more money for the board, Dr. Strate says.

"Nobody likes to see more fees, but the majority of licensing fees have not been going to the board, they've been going into the state's general revenue fund, and that's not right. This surcharge will go specifically to providing the expert physician panels to review standard of care and for enforcement. It's something we need badly."

Mr. Weitz says it seems at times that lawmakers are trying to balance their budget "on the backs of physicians," but adds, "if it gets more effective regulation that's both fair and professional, it's worth the money."

Even though lawmakers closely scrutinized TSBME this year, the agency is scheduled to undergo sunset review again during the 2005 session. Dr. Anderson says the board is working to put new rules in place and implement SB 104 quickly so it can focus on the sunset review process, which will begin this fall.

TMA and state medical specialty societies will work with the board to implement the new law to ensure that the new funding and new powers will be used in the best possible way.

Ken Ortolon can be reached at (800) 880-1300, ext. 1392, or (512) 370-1392; or by email at Ken Ortolon.

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