An Appropriate Remedy

  TMB Offers Remedial Plan for Minor Violations 

 Texas Medicine Logo 

 Law Feature – April 2012 

 Tex Med. 2012;108(4):31-34.

 By Crystal Conde 
 Associate Editor 

Before Sept. 1, 2011, the Texas Medical Board (TMB) had only two options for resolving complaints against physicians: dismiss the complaint or take public disciplinary action. Now, thanks to a new law – backed by the Texas Medical Association – physicians who face minor administrative violations with TMB have a nondisciplinary option for resolving their cases. 

Senate Bill 227 by Sen. Jane Nelson (R-Lewisville) and House Bill 680 by Rep. Charles Schwertner, MD (R-Georgetown), established the remedial plan, which TMB Executive Director Mari Robinson, JD, describes as "a more educational and corrective process."  

The remedial plan allows physicians to avoid formal disciplinary action primarily for minor administrative violations. TMB does not list the names of physicians who agree to the plan in its newsletter or press releases, but remedial plans are public documents and do appear on physicians' public profiles. An advantage of the remedial plan, says Ms. Robinson, is that it's not reportable to the National Practitioner Data Bank. 

Les Secrest, MD, a member of TMA's Council on Legislation, testified on behalf of TMA in support of SB 227 in the 2011 legislative session. He said the bill "strengthens both the effectiveness of the board as the state's licensing agency and the fairness with which it deals with both physicians and the public." 

"We view the remedial plan as a process improvement to allow the board some discretion in how it may handle minor violations of the law that do not involve quality of care, impairment, or any other serious breach of the standards of practice. It gives the board the prerogative to take action without fine," he said. 

TMB offers remedial plans to physicians for administrative violations after receiving a complaint or after completing an investigation. On some occasions, the TMB Quality Assurance Panel may handle the case. It reviews relevant medical records, the report from the medical board's Expert Physician Panel, and the physician's response to the complaint.  

It's possible a case may proceed to an informal settlement conference/show compliance hearing, held in Austin by two TMB representatives. The hearing gives a physician a chance to demonstrate that he or she complies with the Texas Medical Practice Act. TMB can offer a remedial plan, which is non-negotiable, when the hearing ends.  

A. Tomas Garcia III, MD, chair of the TMA Board of Trustees, testified for TMA before the legislature in previous sessions in support of a strong medical board. He says the legislature "made appropriate changes in allowing for the creation of the remedial plan." 

"TMB has been generous in adjusting the process so that it's fair to physicians and protects patients. We continue to build a relationship between the physicians of Texas and TMB and to support policies that foster a strong and objective medical board," he said.  

 A One-Time Offer 

Chapter 187.9 of the TMB rules says a remedial plan can't contain a provision that "revokes, suspends, limits, or restricts a person's license or other authorization to practice medicine; or assesses an administrative penalty against a person."  

Some examples of violations that qualify for a remedial plan offer from the board include:   

  •  Failure to use or timely file death certificates with the Texas Electronic Registrar Death Registration system; 
  •  Failure to follow TMB rules on charging for, maintaining, and releasing medical records; or 
  •  Failure to obtain adequate continuing medical education (CME) credits. 

  Chapter 165 speaks to medical records in detail. Adequate medical records should document each patient encounter and include:     

  •  The reason for the encounter and relevant history, physical examination findings, and prior diagnostic test results;  
  •  An assessment, clinical impression, or diagnosis;  
  •  A plan for care (including discharge plan if appropriate); and  
  •  The date and legible identity of the observer.   

Additionally, Chapter 166.2 outlines required physician CME. To read the rules, click here [PDF].  

Ms. Robinson says the board can offer a physician a remedial plan for standard-of-care cases that "aren't egregious." She cites an example of failure to thoroughly check a patient's prescription records, resulting in writing an inappropriate prescription. She stresses that remedial plans can't be offered in cases involving patient death, felonies, or boundary violations, such as engaging in inappropriate sexual behavior or contact with a patient.  

Remedial plans can address more than one violation by the same physician and will always impose a $500 administrative fee.  

"The reason there's always a fee associated with a remedial plan is because this process replaces all of our administrative penalties. We had to include a fee that would make up for what we'd no longer be collecting through fines," she said. 

TMB can assess the fine once or apply it annually. For example, a physician who agrees to a remedial plan that requires him or her to undergo chart monitoring for three years would pay an administrative fee of $500 each year. 

Common remedial plan stipulations for minor administrative violations could entail taking the Medical Jurisprudence Examination or completing CME coursework in a specific area such as risk management or ethics.  

TMB makes a remedial plan offer only once per physician.  

"The remedial plan isn't meant to address repeat violations. It's really meant to help a physician who may have made a mistake without the board levying a disciplinary order," she said. 

Physicians typically have 20 to 30 days to review the offer. If a physician rejects the remedial plan, Ms. Robinson says, the case returns to the investigative process and could wind up before an administrative law judge at the State Office of Administrative Hearings. 

 Consult an Attorney 

So far, Austin attorney Julian Rivera, JD, has represented two physicians who have received remedial plan offers. The board alleged that one violated recordkeeping rules and that the other inappropriately prescribed controlled substances to family members. He says one physician accepted the remedial plan offer; the other was reviewing the offer. 

Overall, Mr. Rivera says, the concept of the remedial plan is "positive" and "moves the resolution of TMB cases in the right direction."  

"The fact that the remedial plan is nondisciplinary and that the doctor neither admits nor denies the findings and conclusions is helpful for the parties to reach some sort of compromise," he said. 

Mr. Rivera reminds physicians, however, that the term remedial plan "is misleading because it will cause people in some cases to inappropriately presume there was some deficiency with the doctor that needed remediation. My concern is that a simple mistake with no real chance of injury to the public will be the basis for a remedial plan, and the public will misinterpret it."  

Mr. Rivera encourages physicians who receive remedial plan offers to consult an attorney. 

"I've reviewed all of the remedial plans that have been entered, and a large number were prepared by the board's investigation attorney. So it appears that doctors are being offered these plans very early in the process. It's likely clear to the investigation attorney that there has been a violation, but that may not be true when all the facts are reviewed by legal counsel," he said. 

Antonio A. "Tony" Cobos, JD, an Austin attorney who represents physicians before the medical board, echoes Mr. Rivera's concern. He adds that even though remedial plans aren't considered "disciplinary" in Texas, other states where a physician holds a license may be able to seek disciplinary action based upon the underlying findings outlined in the plan.  

"Assessment of the collateral consequences of a remedial plan and whether the case may or should be dismissed by further proceedings, such as an informal settlement conference, is worthwhile," he said.  

Austin attorney Missy K. Atwood, JD, polled six attorneys in her firm who regularly represent physicians before the medical board. None of them had a client who had received a remedial plan offer at press time.  

According to TMB, as of December, 83 physicians had agreed to a remedial plan.  

Like Mr. Rivera, Ms. Atwood advises physicians offered a remedial plan to have an attorney review the language.  

"When evaluating a remedial plan, I highly recommend a physician seek legal counsel. The plans get offered only once, and they're non-negotiable," she said. 

 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 email.  

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