Death and the TMB

Follow the Law or Pay a $500 Fine

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  Law Feature – November 2010


Tex Med. 2010;106(11):31-34.

By Crystal Conde
Associate Editor

More than 150 physicians potentially are in hot water with the Texas Medical Board (TMB) over a 2007 law requiring them to file death certificates electronically. The board is looking into complaints the physicians didn't complete death certificates within the time the law requires, a violation that carries a $500 fine per offense.

Although he personally doesn't object to the law, A. Tomas Garcia III, MD, vice chair of the TMA Board of Trustees and a Houston cardiologist, acknowledges the regulation has "unintended consequences." Some funeral directors continue to ask physicians to sign paper death certificates, and there is a lengthy wait for the Department of State Health Services (DSHS) to finalize physicians' registration with the state's electronic system.

"The problem is the law passed in 2007, and no one developed a plan to ensure it is implemented properly. There's no ombudsman to coordinate efforts and communication among DSHS, TMB, and the funeral homes," Dr. Garcia said.

House Bill 1739 took effect Sept. 1, 2007. All physicians who sign death certificates had to register in the Texas Electronic Registrar (TER) Death Registration system, maintained by the DSHS Vital Statistics Unit, by Sept. 1, 2008, and begin completing death certificates electronically. At press time, more than 12,000 physicians out of an expected 15,000 had registered.

TMB Executive Director Mari Robinson, JD, says the board was not involved in any of the rulemaking to implement the electronic death registration law. But it can discipline physicians who don't follow those rules.

"TMB comes into play because it's a violation of our act to break any law connected with the practice of medicine. We didn't create the rules, and we weren't involved in the creation of the system," she said.

In late September, Ms. Robinson offered a ray of hope that physicians may not be disciplined after all. She said TMB would consider at its Oct. 28-29 meeting a request from Sens. Robert Deuell, MD (R-Greenville), and Jane Nelson (R-Flower Mound) that it extend a grace period on failing to use the electronic death certificate system through the end of the year. All current cases will remain in a pending status until then, she said.

TMB could not say how many complaints it receives annually about physicians who don't meet the time requirement for signing death certificates or how many fines it levies for the violation annually. According to TMB spokesperson Leigh Hopper, TMB's database isn't capable of performing a specific search for death record violations.

The fact that TMB has so many complaints against doctors for not signing death certificates on time concerns Ms. Robinson, Dr. Garcia, and TMA President Susan Rudd Bailey, MD.

"I honestly don't know what it is about this specific rule that is causing the amount of confusion it is," Ms. Robinson said. "We're getting a lot of complaints about this."

Dr. Bailey says she's heard from physicians alarmed over the number of doctors facing fines.

"To get fined by TMB is a gut-wrenching experience for a physician," Dr. Bailey said. "It's not like paying a parking ticket. Doctors are worried that any type of infraction is going to be a black mark that will follow them for the rest of their careers. When physicians are doing the best they can in a terrible situation, I want them to understand their rights under the law."

Physicians shouldn't feel pressured to sign death certificates, because they have five days to fill out their portion of the document, Dr. Bailey says. And she encourages TMA members to contact the association when they have questions or concerns about TMB rules. Members may call the TMA Knowledge Center at (800) 880-7955 or e-mail the TMA Knowledge Center.

TMA can best advocate for physicians and help TMB understand the practical implications of the rules the board enforces," she said.

Ms. Robinson encourages physicians who haven't yet registered online with the TER system to do so at www.requestTER.texasvsu.org. (See "How to Register With TER.")

"If there are practitioners out there not registered, they can do so now. That way, they can subsequently file electronically and avoid violations altogether," Ms. Robinson said. "As long as a complaint is not filed against a doctor, the medical board is not going to seek him or her out. We're not checking to see who is and isn't registered. It's only when complaints are coming in that we're aware."


Letter of the Law

DSHS has published numerous articles about the TER system in its newsletters and has information about the law requiring electronic submission of death records at www.requestTER.texasvsu.org. Plus, physicians and their staff may attend educational seminars that the DSHS Vital Statistics Unit and the Texas Public Health Association host. Four regional summer conferences take place throughout the state, and there's an annual conference Dec. 8-10 in Austin.

These opportunities cover in-depth training on the TER system. To learn more and to register, visit conferences.texasvsu.org.

DSHS also can provide training for physicians who request hands-on guidance in their offices. To make a request for hands-on training, e-mail field@texasvsu.org.

To educate licensees about the law, TMB has published articles in its quarterly bulletin and conducted statewide PowerPoint presentations about the electronic system throughout the year. TMA also has published numerous articles about the new requirement in its semimonthly newsletter Action.

While Texas law doesn't require physicians to undergo training on the TER system, funeral homes must complete two hours of vital statistics training when renewing their licenses. Information on the TER system is part of the training, according to Victor Farinelli, Central Texas area representative for the DSHS Vital Statistics Unit.

"We've tried hard to ensure that every funeral director is aware of this. If a funeral director isn't following the proper licensing procedures, the Texas Funeral Service Commission would know and could make an inquiry," he said.

Funeral homes are subject to inquiries from the Texas Funeral Service Commission for late certificates. The commission may issue a fine up to $1,000 per violation. The Texas Funeral Service Commission did not comment for this story.

By law, attending physicians have five days after receiving the death certificate to fill out their portion online. DSHS says office staff members may complete most of the record, but the physician must enter a personal identification number (PIN) to complete the electronic death certification.

But according to Mr. Farinelli, it typically takes the state 15 to 20 business days to issue a user name and PIN to a newly registered physician so he or she can use the TER system and file certificates electronically. That's why it is important for physicians who have not registered to do so now and not wait until a patient dies.

Mr. Farinelli says DSHS is trying to expedite the registration process, but limited resources hamper the efforts. When physicians can't remember or can't find their user name or PIN, he recommends they e-mail help-ter@dshs.state.tx.us or call (512) 458-3490.

The law says a person required to file a death certificate (typically the funeral director) "shall obtain the required medical certification from an attending physician if the death occurred under medical attendance for the care and treatment of the condition or disease process that contributed to the death."

The law also says an associate physician, the chief medical officer of the institution where the death occurred, or the physician who performed an autopsy on the deceased may complete the medical certification if:  

  • The attending physician is unavailable,
  • The attending physician approves,
  • The person completing the medical certification has access to the medical history of the case, and
  • The death is due to natural causes.

Mr. Farinelli says sometimes a physician does not have enough information to determine the cause of death. In that case, the physician may contact a justice of the peace or medical examiner and request an inquest.

To view chapter 193 of the Health and Safety Code relating to death records, visit www.statutes.legis.state.tx.us/Docs/HS/htm/HS.193.htm.

Effective communication and coordination between the physician and funeral home in the days immediately following a person's death is vital, Mr. Farinelli says.

"The birth certificate and the death certificate are the most important documents a family requires following the death of a loved one," he said.

Delays in filing death certificates prevent families from following through with cremation and burial plans. Without a death certificate, survivors can do nothing about a decedent's will, insurance policy, bank accounts, or other paperwork, according to TMB.

DSHS says the electronic system makes it easier to analyze death records and capture information about the overall health of a community. The department receives about 67 percent of all death records electronically, compared with 18 percent two years ago.


Dismiss or Discipline

Ms. Robinson says TMB has only two options when the death records law is violated – dismiss the case or take disciplinary action. The board will consider a physician's defense that proves the violation was beyond his or her control, she says. For example, the board would not discipline a physician if he or she could not file a death certificate electronically because the DSHS server was down for several days.

"Obviously, the doctor couldn't control that. In a situation like that, even though there was a violation of the law, it wasn't the fault of the physician," Ms. Robinson said.

TMA supports giving TMB more discretion in determining penalties for administrative violations. (See "Doctors Advocate Changing TMB Minor Violation Process.")

She warns, however, that the board doesn't consider not knowing about the electronic registration requirement to be a sufficient defense.

According to Ms. Robinson, physicians have three options when notified of a violation:

  1. Plead no contest and pay the fine,
  2. File a written response with the board's disciplinary committee, or
  3. Request an informal settlement conference.

Although the law mandates electronic filing, Mr. Farinelli says DSHS still accepts paper forms from doctors who haven't gone digital, although he describes it as a much slower, more cumbersome process. When a funeral home director can't find a physician in the electronic registry because he or she hasn't registered, the director prints a paper copy of the document for the physician to sign.

However, Ms. Robinson is unaware of any provision in the statute that permits filing of paper documents. Because of the way the law now stands, Ms. Robinson says online registration and electronic filing of death certificates are a physician's only options to avert a potential complaint and subsequent violation.

Crystal Conde can be reached by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by e-mail at crystal.conde@texmed.org.


SIDEBAR 

 

 

 

 

How to Register With TER

To register with the Texas Electronic Registrar (TER), log on to www.requestTER.texasvsu.org. For assistance with registering, e-mail the help desk at help-ter@dshs.state.tx.us.

Free training is available online at www.texasvsu-ed.org. The training explains how to use, log into, and navigate the system. It also includes a video of an electronic record being completed.

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SIDEBAR

Doctors Advocate Changing TMB Minor Violation Process

Houston cardiologist and TMA Trustee A. Tomas Garcia III, MD, favors changing state law to allow the Texas Medical Board (TMB) to require education or warn physicians for first-time minor administrative violations, such as failing to file death certificates in a timely manner.

He is not alone. In fact, during the 2009 legislative session, TMA supported giving TMB authority to require education or corrective action in lieu of a fine for first-time, minor violations. But other stakeholders, who wanted to preempt the board's authority to enforce standard of care and nontherapeutic prescribing violations, derailed the legislation. TMA was successful in lobbying the board to stop publishing the names of physicians with administrative violations in its newsletter.

In preparation for the 2011 session, TMA supports adding these provisions to the legislation:  

  • Give physicians 45 days instead of the current 30 to respond to a notice of complaint,
  • Prohibit anonymous complaints,
  • Allow disclosure of the complainant to the physician if it comes from an insurance company or its agent, and
  • Bind TMB to the decision of an administrative law judge in the State Office of Administrative Hearings.

Norman Chenven, MD, founder and chief executive officer of Austin Regional Clinic (ARC), and James Merryman, DO, a family physician and president of ARC's Executive Board, appreciate that many of the statutes give TMB little or no discretion in determining penalties for minor administrative violations. They support TMA's lobbying for legislation that would award TMB more leeway, allowing it to focus its resources on protecting the public from physicians who are truly practicing poor medicine.

They say that the continued success of medical liability reform in Texas depends on public confidence in TMB's role. But at the same time, the physicians recognize a need to work with the board to ensure it's being fair to its licensees.

Drs. Chenven and Merryman met with TMB Executive Director Mari Robinson, JD, earlier this year after the board fined one of ARC's physicians for deceptive advertising. While investigating an unrelated patient complaint, TMB fined the doctor for using an American version of his legal foreign name in communicating with patients. The board fined the physician because the name on his office door, letterhead, business cards, and other materials didn't match the name on his license.

"We consider it a nuisance fine," Dr. Chenven said. "The doctor didn't intentionally do anything wrong, and the board found the violation by accident while investigating an unconnected patient complaint that turned out to have no merit."

Dr. Chenven says TMA and other medical organizations need to make physicians aware of common minor violations that can result in fines.

As a result of the physicians' meeting at TMB, Ms. Robinson created a list of common infringements, including failure to comply in a timely manner with a board subpoena or request for information. Common infringements include failure to:  

  • Use the electronic death certificate system,
  • Report liability claims to the board, and
  • Provide copies of medical or billing records. (See "Know the Rules to Avoid TMB Scrutiny.")

Dr. Merryman says educating physicians about the violations that can commonly trip them up is key.

"We need to make physicians aware of the rules, and we need to give TMB more flexibility on enforcement," Dr. Merryman said.

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RELATED STORY

Know the Rules to Avoid TMB Scrutiny

To avoid being the subject of a complaint to the Texas Medical Board (TMB) and having to pay a fine, physicians need to make sure their office staff members and the companies they contract with are aware of TMB rules on releasing medical records.

Bruce Malone, MD, Texas Medical Association president-elect and an Austin orthopedic surgeon, says physicians must realize they have certain legal obligations when patients or lawyers make formal requests for records.

"There's no reason to risk disciplinary action by TMB because doctors don't know the rules related to medical records release," Dr. Malone said. "In my six-physician orthopedic practice, we get frequent records requests from attorneys related to injuries patients have. To make sure we comply with the law, we have one employee who handles these requests and puts together these records in a timely fashion."

TMB rules address the deadline for release of records in chapter 165. The rules say: "The requested copies of medical and/or billing records or a summary or narrative of the records shall be furnished by the physician within 15 business days after the date of receipt of the request and reasonable fees for furnishing the information."

To read chapter 165 of the board rules relating to medical records release, visit www.tmb.state.tx.us/rules/rules/bdrules.php.

Gerald Livingston, JD, a Dallas attorney, says the trend for medical practices to outsource billing and collections responsibilities, as well as medical records management, has made the process of obtaining statements of medical charges and medical records all the more arduous for attorneys. He says his office makes medical records requests to physician offices several times a week.

When physicians fail to release medical records within the required 15 days, it not only slows the legal process but also can delay the payment to the physician for medical services, Mr. Livingston says. In addition, failure to comply with TMB medical records release rules could result in a complaint against the offending physician.

TMB spokesperson Leigh Hopper says the board typically issues a $1,000 fine for not releasing records in the time frame specified by the rules.

To steer clear of a TMB medical records release violation, Mr. Livingston suggests physicians consider including language in their contracts with business associates that explicitly requires them to adhere to board rules related to medical records release. He says physicians might also think about adding a clause to the contract that would indemnify the physician should he or she be fined as a result of the business associate's failure to comply with TMB rules.

"Physicians should make sure they clearly understand their legal obligations so they can properly train in-house staff or outsourced business associates who may not be familiar with these laws," Mr. Livingston said.

One of the most common questions asked of the TMA Knowledge Center is how much physicians can charge for copies of medical records. The answer: TMB says a physician may charge patients, lawyers, or others a fee of no more than $25 for the first 20 pages of a patient's medical record and 50 cents per page for every copy thereafter. Thus, the appropriate charge for 25 pages would be $27.50.

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