Will the Sun Set?

 Legislative Review of Licensing Boards Could Produce Substantial Change

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Legislative Affairs Feature -- June 2004  

By  Ken Ortolon
Senior Editor  

State agencies that license health care professionals, from physicians to chiropractors to psychologists, are being scrutinized as part of the sunset review process preceding the 2005 session of the Texas Legislature.

So far, the Sunset Advisory Commission has found several of those agencies wanting. And, in an era of tight budgets and heightened concern over patient safety, there is some question whether all of those agencies will survive the sunset process, at least as stand-alone entities.

The sunset commission has not decided the structure and operation of the Texas State Board of Medical Examiners (TSBME) or any of the 16 other licensing agencies under review. But it has been highly critical of some of the licensing boards' performance and has set the stage for potential consolidation. Any recommended consolidation, however, has been delayed until hearings on all 17 agencies are completed in November.

Meanwhile, political observers say the boards are getting perhaps their most thorough review since the sunset process began.

Following the Model  

Under sunset, state agencies must justify their existence every 12 years. If the laws under which they operate are not reenacted, the agencies go out of business.

Health professions licensing agencies have not been reviewed since 1993, when TSBME came under intense scrutiny and harsh criticism for its disciplinary practices.

Agencies such as TSBME, which has more than 52,000 licensees, have always drawn close scrutiny from the sunset commission. Political observers say even the smaller boards, such as the Texas State Board of Podiatric Medical Examiners, which has only a few hundred licensees, are getting more attention this time. A commission report says the small number of podiatrists makes it difficult to support an independent board.

"Reviews of all the boards have been a lot more organized, and the reports have been more thorough," said Sam Stone, lobbyist for ophthalmologists and physician assistants.

That may be a result of an "occupational licensing model" the sunset commission staff developed over the past four years and is applying to the health agencies for the first time.

"We're using that as our guidepost to stack those different boards and their statutes up against the model to see where shortcomings may lie," said Joey Longley, sunset commission executive director.

The model sets the standards the commission believes should be applied to all licensing agencies on enforcement, licensure, examination, and other areas of responsibility. For example, the commission staff says licensing provisions in the Texas Optometry Board statute do not follow model licensing practices and could affect fair treatment of licensees and the board's ability to protect consumers.

Mr. Longley says a board's authorizing statute often simply is outdated.

"It's not always a deficiency on the part of an agency," he said. "Sometimes their statute just hasn't kept up with the times, as is the case with the pharmacy board. They're not equipped to deal with the kinds of violations they have these days with mail-order and out-of-state pharmacies and transactions over the Internet."

Defining Scope  

The Texas Board of Chiropractic Examiners was sharply criticized both in the staff report and during sunset commission hearings in March. The staff objected to it issuing opinions on scope-of-practice questions without following standard rulemaking procedures and seeking stakeholder input.

"Unlike rules, which is the standard used among licensing agencies to clarify scope of practice, board opinions are issued with little public participation and scrutiny," commission policy analyst Emilie Leroux said. "More importantly, we found that the board misused its opinions to expand the chiropractic scope of practice."

A case in point involves chiropractors' use of needle electromyograms (EMGs). Ms. Leroux says the board ignored opinions from the State Office of Administrative Hearings and Texas attorney general that needle EMGs exceed the chiropractic scope of practice.

"After each of these separate rulings, the board came back and issued a new opinion that chiropractors may perform needle EMGs and that it is within their scope," she said.

Sunset commission member Sen. Jane Nelson (R-Flower Mound) is concerned about a board making such decisions without public notice. She says scope-of-practice decisions are better left to the legislature.

Commission Chair Rep. Burt Solomons (R-Carrollton) chastised chiropractic board members for "ignoring the legislature and deciding to just go off on your own and issue opinions about what you think you ought to do. I don't like it and we are going to try to do something about that."

Sandra Smith, executive director of the chiropractic board, assured commissioners the board has stopped using opinions to address scope-of-practice questions and would follow rulemaking procedures in the future.

An Eye on Efficiency  

Mr. Longley says agency consolidation should be considered because of each board's varying size and capabilities. Political observers also say consolidation may be driven, in part, by budgetary pressures similar to those that prompted the consolidation of state health and human services agencies in the last legislative session.

Mr. Longley says it is possible some agencies will be restructured or consolidated, or that the role of the Health Professions Council will be expanded. That council is an interagency advisory body to which all of the licensing boards belong.

Mr. Stone, however, says that lawmakers have little incentive to consolidate those agencies. "All of these licensed professions want their own board, so there's not a lot of political gain for a legislator to suggest that. It may save some money, but you get a lot of grief from podiatrists or chiropractors or whatever if you try to put them together."

As of mid-May, staff review and commission hearings had been completed on only five of the 17 boards. Staff review of TSBME and several other agencies was just getting under way in April. Reports on those agencies likely will not be completed until late September, with hearings to be held Nov. 16 and 17.

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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