TMA Calls for Fair TMB Informal Disciplinary Hearings
Cover Story — November 2016
By Joey Berlin
Tex Med. 2016;112(11):28-35.
The word "informal" may provide some sense of comfort for a physician facing a complaint alleging wrongdoing before the Texas Medical Board (TMB). The board's informal show compliance and settlement conferences (ISCs), in theory, can represent a golden opportunity for physicians. ISCs offer a chance — in a confidential setting — for physicians to clear their names if they're innocent or at least to come to a resolution with TMB that settles the case before it reaches a formal proceeding in front of the State Office of Administrative Hearings (SOAH).
But some attorneys who defend physicians at ISCs say their clients often enter the conference without a full understanding of what they're getting into: a format that's more trial-like than its name implies, and less of a fair fight than it should be.
"People could say, 'It's an informal settlement conference. It's not like a courtroom and all its formalities, so don't be intimidated.' And that's one way of looking at it," said Austin health care attorney Victoria Soto. "And then another way of looking at it could be, [because of] the fact that it is informal, it could be the most dangerous room you ever enter career-wise. It simply depends on how you enter it and the specific circumstances of your individual case."
Attorneys and medicine alike have long been concerned about the evolution of ISCs, and then-TMB Executive Director Mari Robinson readily says the hearings have "become more formal in nature." In scathing written comments the Texas Medical Association submitted to TMB in July in response to the board's proposed ISC rules, TMA said ISCs have become "more and more formal, prescriptive, and regulated," without giving physicians a fair forum to defend themselves. The proposed rules appeared to be a clarification of how the board already conducts ISCs. But after critical comments from TMA and other stakeholders, TMB chose not to adopt the rule amendments.
Still, concerns about ISCs persist, and the conferences are a hot topic as the Sunset Advisory Commission's 2016–17 review of TMB and the 2017 legislative session loom. Beaumont orthopedic surgeon David Teuscher, MD, names three "Fs" that he says need to be part of TMB's disciplinary process.
"I want to have a medical board that will stand up and discipline the small number of physicians who have [engaged in] truly egregious, unprofessional behavior, but I want the process to be fair, fast, and firm," he said. "I am not convinced that we always have the first two."
Brian Tew, MD, JD, a former emergency medicine physician who has defended doctors for more than 20 years as a health care attorney, says that ISCs have "become pretty prosecutorial."
"These doctors may have been trying to do it right, but some of these complaints result in board orders that are career-ending," he said.
How ISCs Work
ISCs follow a board investigation of a complaint that alleges violation of the state's Medical Practice Act. (See "The Path to an ISC.") In those investigations, the physician receives notice of a complaint and may provide additional information for the investigation. At least two members of TMB's Expert Panel who are board certified in the same or a similar specialty as the physician must review a case alleging a standard-of-care violation. Standard-of-care violations can include actions such as nontherapeutic overprescribing or failing to follow up and document laboratory studies.
According to TMB's existing rules, the medical board's hearings coordinator schedules an ISC after referral of an investigation to TMB's legal division. The board must send notice to the physician under investigation and the complainant at least 45 days before the ISC. That notice includes a written statement of the nature of the allegations, a statement notifying the physician about the opportunity to attend and participate in the ISC, and a copy of the information the board intends to use at the ISC.
Ms. Robinson says the ISC initial notice goes out well before the 45-day mark, which is the deadline the board uses for physicians to receive their copy of the evidence.
"If an ISC is set, a letter goes out notifying the licensee of the date way in advance, often 75 to 90 days in advance," Ms. Robinson said. "That's not statutorily required, but we do that so that we have a minimum of scheduling issues."
Physicians typically receive a package that includes the required written materials and a CD containing further information the board intends to use. If the allegations include a standard-of-care violation, the notice must also include a copy of the Expert Panel's report.
Physicians have 15 days prior to the date of the ISC to submit their responses. If the board's notice requires the physician to respond to written questions, the physician has 14 days after the mailing of the board's notice to answer.
The ISC panel that hears each case has two or more board representatives, including at least one public member. The panels typically include one public member of the board and one physician member.
"It's supposed to be … something like a grand jury appearance, [where] you get the opportunity to go, and you show that you don't believe you should be indicted. This is an opportunity for a physician to go and show that there shouldn't be a formal complaint filed," said Ace Pickens, an Austin attorney who defends physicians at ISCs.
The ISC also features a hearings counsel, a board attorney who, by rule, must not have been involved with the preparation of the case. Board rules say the hearings counsel can ask clarifying questions of ISC participants and can also provide the panel with historical perspective on "comparable cases that have appeared before the board," keeping "the proceedings focused on the case being discussed" and ensuring "the board's employees and the physician have an opportunity to present information related to the case."
But Mr. Pickens says nowadays, the hearings counsel typically asserts more control over an ISC than the rules prescribe.
"Over time, that position has ballooned up to be more than what I think it was envisioned to be," he said. "And there are many times in which the hearing officer attempts to control the way the board is conducting the meeting, to the extent of cutting people off from saying things, to the extent of asking extensive questions themselves, when they're not really supposed to be, … under the guise of clarifying."
After conducting the ISC and deliberating, the board representatives can ultimately take one of seven actions:
- Recommend the complaint or allegations be dismissed;
- Recommend an agreed order and propose resolution of the case in writing;
- Defer the ISC pending further investigation;
- Direct the filing of a formal complaint with SOAH;
- Recommend the convening of a disciplinary panel to consider the temporary suspension or revocation of the physician's license;
- Recommend imposing an administrative penalty; or
- Recommend a remedial plan to resolve the complaint.
Depending on the complaint, a disciplinary order may include licensure restrictions, restrictions from performing certain procedures, or required drug rehabilitation or testing. (See "Possible ISC Actions.") The board considers remedial plans non-disciplinary. They may require a physician to take continuing medical education or the Medical Jurisprudence Examination.
If the case is not dismissed and the board and the physician don't reach a resolution through an agreed order or a remedial plan, the case becomes a formal complaint with SOAH. Permanent removal of a physician from practice can occur only if TMB files the case with SOAH or if the physician signs an agreed order to surrender the license.
A Gray Area
TMA argued in comments this summer that the procedure behind ISCs seemed to conflict with the intent of the Texas Legislature when it passed legislation on informal meetings. TMA cited Section 164.003 of the state's Occupations Code, which lays out requirements for informal proceedings. That section requires the board to adopt informal procedures to arrange a contested case and includes the board's required procedures in setting up such a meeting, as well as an affected physician's rights in responding to a complaint. TMB said that law section seemingly described an informal meeting "in a way that would preclude anything resembling a more formal hearing," but TMA said ISCs had seemed to have fallen into a gray area, with a "regimented yet unfair" process.
"An informal 'meeting' would not have opening and closing arguments, prescriptive lists of what parties can and cannot do, and may not even have oral witness testimony," TMA wrote.
But Ms. Robinson says ISCs are "conducted the way the legislature intended them to be conducted." State statutes delineate specifically how to set up ISCs, Ms. Robinson says, and "the rules do very little that are in addition to what the statute already requires."
She agrees, however, the conferences have "become more formal in nature as time has gone on, simply by what people are attempting to do within the hearing itself." An ISC is supposed to be "an informal, confidential, short hearing to enable the board to present the evidence they have to the doctor and allow the doctor to respond. It is not intended to be a trial unto itself," Ms. Robinson added. "It is not intended to be a minitrial."
Although the physician always gets an opportunity to testify, an ISC panel has discretion regarding whether to allow live testimony. Ms. Soto says that "really depends on the panel." For instance, she says she has seen cases in which a physician's colleague comes to the ISC simply to provide moral support. But the panel, seeking another perspective, may ask that colleague to speak on behalf of the physician.
"And that person might attest to the doctor's professionalism, specifically how they have witnessed the doctor practice medicine with a very high standard of care, and he or she has always been proud to have this doctor on their hospital staff," Ms. Soto said. "That can be very valuable testimony to the doctor."
On the other hand, she says she has also seen an ISC panel be less welcoming to a potential witness for undisclosed reasons. She says when a supportive colleague or witness for the responding doctor walks into an ISC, the hearings counsel may declare at the outset that their testimony or presence is not necessary.
"Sometimes because of time and notice issues specific to the witness, their showing up on the day of the ISC could have been the only way to offer valuable information and, therefore, the responding doctor will welcome them along," she said. "If this person is asked to leave without the benefit of offering any information, it can be a great blow to the respondent physician, but their defense counsel should have prepared them for this possibility."
Franklin Hopkins, former TMB attorney, now defends physicians at ISCs. Mr. Hopkins says he likes the ISC structure.
"It's still an informal settlement conference, but they have a formal way of running it, which I believe is good," he said. "Some agencies are too informal in their processes, so you don't know what's going to happen."
Are They Fair?
TMA and the Texas Medical Liability Trust (TMLT) raised issues with ISCs in comments the organizations compiled in anticipation of TMB's sunset review. In TMA's 2014 Physician Survey, 12 percent of physicians indicated they have had problems with TMB. TMA listed complaints of some of those physicians in its feedback. Several physicians referenced a perceived "guilty-until-proven-innocent" atmosphere during ISCs.
TMLT noted while many cases "go away before being investigated," many physicians feel once a case does come under investigation, "investigators and reviewers are geared heavily towards finding the doctor 'guilty' of some Board Rule violation."
"You are guilty and must prove that you are not," one TMA physician survey respondent said. "All complaints that I have had were resolved by common sense. You need to know who really complained. You really need to be safe [and] hire an attorney, which causes expenses. The board does nothing to protect the physician or his extreme sweat equity investment."
TMLT raised an issue with ISC panels "having the discretion to sanction or find violation[s] of [the Medical Practice Act] outside the scope of what has been set forth by the TMB expert reviewers." Similarly, Dr. Tew says his biggest concern is that the board has "recently been acting more like a law enforcement agency."
"Whenever an administrative agency is given police power, we know from past experience that they trample on whoever they're investigating's constitutional rights to due process," he said. "And the due process that is given to physicians at the board is sorely lacking. There's no reason a physician in Texas should have to hire a lawyer to go up and meet with the board."
TMLT said in its sunset feedback report that ISC notices' investigative files are often voluminous and typically "contain documents the defending lawyer has not previously seen."
"It is enormously frustrating and more importantly lacks due process when attorneys have spent hours addressing the comments of the TMB's expert reviewers and rebutting them through narrative responses, applicable literature, and through their own expert, only to have the ISC Panel decide to focus on a point never previously raised or which has been abandoned by the Board's experts and Staff Attorney," TMLT wrote. "There is really nothing the attorney for the doctor can do about it other than either wing it or refuse to discuss it, in which case the panelists can then refuse to recommend a dismissal. There have been times when the doctor was threatened with a separate complaint if he refused to discuss that newly raised issue."
TMB President Michael Arambula, MD, said in a statement to Texas Medicine the board is "fair and balanced in its decision-making" and follows the complaint process exactly as the legislature requires.
"Importantly, all physicians coming before the Board have 15 steps of due process," Dr. Arambula said. "No physician has a disciplinary action taken against them without having a full and robust opportunity to make themselves heard under the current enforcement process."
TMB receives about 7,000 complaints annually against all physicians, according to its enforcement page, and TMB says about 10 percent of those complaints reach the ISC level. In fiscal year 2015, TMB opened 1,675 investigations against physicians, according to the Health Professions Council's 2015 annual report. The fiscal year 2015 cases yielded 300 disciplinary actions against physicians and 254 remedial plans, according to the report.
Of the cases that reach an ISC, Ms. Robinson says generally around 25 percent get dismissed.
"The fact that each case is given its own time and that the outcomes are varied and different depending on what all was presented seems to me to indicate that it is a fair process. But that's an opinion," she said. "I can give you the facts. I can tell you that there are absolutely doctors who come to ISC, quite a few, and their case, after the physician has made their presentation, gets dismissed because the board agrees with the physician. There are lots of cases where they decide there's remediation necessary. There are cases where they decide discipline is necessary, so what I can tell you is, the outcomes are varied and seem to be tailored dependent upon what each individual analysis shows."
Dr. Teuscher says the regulations for the various boards governing health care practitioners aren't uniform in their disciplinary proceedings.
"If you look at the other [state] health care professional licensing boards in comparison to the medical board, you have to ask, 'Why are all those disciplinary proceedings not identical?'" he said. "You're disciplining unprofessional behavior, regardless of licensure, and the public should expect some level of uniformity of disciplinary proceedings and due process that would treat the medical profession as fairly as the other health care professionals that are licensed by the state. After all, why would you have a licensing board if you're not willing to do that?"
Ms. Soto says ISCs can be emotional and intimidating proceedings, but they give physicians an opportunity to be heard. And after that happens, she says catharsis, rather than heartbreak, can result.
"I've seen a doctor collapse in the elevator when the panel recommended dismissal after an investigation that took almost two years," she said. "The doctor collapsed, literally hit the floor in tears, shaking in relief and gratitude. This was a brilliant physician, who cared so much for patients and giving the best to everyone, because there was justice done for all at the end of the day."
"Let the Licensee Go, Too!"
In the July 1 edition of the Texas Register, TMB proposed amendments to its ISC rules that the board indicated were for clarification purposes. But TMA responded sharply and critically to the proposal, telling TMB in written comments that the amendments would make "ISCs more like a formal administrative hearing without the guaranteed accompanying protections."
One rule amendment would have required a physician's written statements by witnesses to be included among the materials the physician must submit at least 15 days before the conference. TMB said that language was added to clarify that "the requirements related to a physician's submission of pre-ISC material also applies to written statements by witnesses."
But in objecting to that amendment, TMA noted the 45-day notice requirement to tell a physician about the scheduling of an ISC.
"The result is simple math — the proposed rule adds up to a tremendously tight window of only 30 days to gather witness statements," TMA wrote. "This would be difficult for a physician defending against one complaint, but, as may often be the case, preparing multiple witness statements for defense against multiple complaints at the same time would be nearly impossible under these time constraints."
The proposed amendments also would have inserted a provision limiting oral witness testimony, TMA said, to "witnesses that only the board would want to introduce: [Texas Physician Health Program] representatives, compliance officers, or board staff to describe physician's compliance status, or testimony by the alleged victim of sexual or assaultive offenses."
"Again, TMA doubts that the legislature even intended oral witness testimony to be presented at these 'informal meetings' at all," the association wrote. "But if TMB is going to go down that road, at least, in fairness, let the licensee go, too! Yes, TMB is providing an opportunity to licensees to present a defense, but when it authorizes board representatives to selectively plug their collective ears to a licensee's case by disallowing witnesses a licensee may offer, it removes any meaning in that opportunity."
After initially planning to vote on adoption of its rule proposal at its August meeting, TMB considered the comments it received and decided not to move forward with the rule proposal at its August meeting. Ms. Robinson says she won't comment on the proposed amendments.
Awaiting the Sunset Report
Following the proposed rule's withdrawal, Ms. Robinson says she doesn't expect any other near-term rule amendments concerning ISCs. She says the board essentially has directed staff not to undertake substantive rulemaking with the legislative session coming up. In its comments, TMA recommended the board convene a stakeholder meeting to resolve the process issues with ISCs.
"The board hasn't made a formal comment on anything being a problem or not being a problem," Ms. Robinson said. "The issue of all of this will come down to what resource allows and what the statute provides. And … we are going through sunset right now, and I have no doubt that this is one of the areas they will take a look at."
Mr. Pickens says he'd like to see a reset on the ISC rules.
"What I think they ought to do is they ought to go back and start over and do a kind of a sunset or zero-based budget review of this whole informal settlement conference section, and [gather] stakeholders and have a public hearing, and let them have comments … on not only what they're changing but the whole thing," Mr. Pickens said. "It's better than it was, but it still could be improved."
"You don't get your way, obviously, as an attorney all the time," Mr. Hopkins said. "Sometimes, you get some tough results for clients. But I will say there have been times where we didn't get our way, but I thought we got a fair shake. There's other times I don't think the panel's been listening to us. But this is all very subjective, and … it depends on who the panel is. It depends on the allegations."
Ms. Soto anticipates, in the event of a stakeholder meeting, the board will listen to what those stakeholders have to say. She says she hopes the ISC process will improve.
"And in a disciplinary process like an ISC … then at least the doctor needs to walk out and say, 'I was given a fair shot. I was able to fairly present my case, the ISC panel listened and considered my words and supporting evidence, and thankfully, they dismissed my case, and I can continue to practice medicine.' Or, 'I've been given a recommendation to be disciplined, but at least I was given an opportunity to … tell the truth and to be heard. I can learn from this and live with it.'"
Joey Berlin can be reached by phone at (800) 880-1300, ext. 1393, or (512) 370-1393; by fax at (512) 370-1629; or by email.
Legal articles in Texas Medicine are intended to help physicians understand the law by providing legal information on selected topics. These articles are published with the understanding that TMA is not engaged in providing legal advice. When dealing with specific legal matters, readers should seek assistance from their attorneys.
The Path to an ISC
Once the Texas Medical Board (TMB) receives a complaint, it determines whether the complaint is jurisdictional, meaning it's against a board physician and alleges a violation of the Medical Practice Act. From there, the board takes several steps before it might take the case to an informal settlement conference/show compliance proceeding (ISC):
- Preliminary Evaluation: TMB conducts an initial review of the allegations in the first 45 days after receiving the complaint. TMB staff may attempt to contact the complainant and the physician during the initial evaluation. If the preliminary evaluation indicates no violation of the Medical Practice Act occurred, the board doesn't open an investigation.
- Investigation: Once an investigation opens, TMB investigative staff members inform the physician of the alleged violation and ask for additional information. They may gather information from other sources. At the end of the investigation, the case may be referred for dismissal to TMB's disciplinary process review committee, referred to a Quality Assurance Panel, or resolved by offering the physician a remedial plan, which is non-disciplinary.
- Quality Assurance (QA) Panel: The panel reviews cases from TMB's Investigations Department. The panel may request additional information on the case, refer the case to the board's litigation department for a possible ISC, refer the case for dismissal, or offer the physician a remedial plan. The physician can accept the remedial plan or request an ISC.
Source: Texas Medical Board
Possible ISC Actions
Disciplinary orders that can result from an informal settlement conference may include, but are not limited to:
- Restricting a physician from performing certain procedures or practices;
- Requiring additional training or medical education;
- Requiring a chart monitor or other practice monitor;
- Requiring compliance appearances before members of the board;
- Referring the respondent to the Texas Physician Health Program;
- Requiring participation in rehabilitation or behavioral health programs;
- Requiring abstention from drugs and alcohol;
- Requiring drug testing;
- Requiring participation in Alcoholics Anonymous or similar programs;
- Prohibiting a physician from treating certain types of patients;
- Assessing an administrative penalty; and
- Issuing a public reprimand.
Source: Texas Medical Board
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