Health Agencies Undergo Wholesale Review

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Legislative Affairs Feature — October 2014

Tex Med. 2014;110(10):35-38. 

By Amy Lynn Sorrel
Associate Editor

It happens only once a decade or so, but as the proverbial sun goes down on the state's health agencies as they undergo top-to-bottom review, Texas Medical Association leaders say it's a time for physicians to be on the lookout.

Through the sunset review process, the Texas Legislature regularly evaluates the need for and performance of all state agencies to make sure they are operating effectively and efficiently. During the current cycle, a 12-member Sunset Advisory Commission that includes physician representation is carefully examining the Texas Department of State Health Services (DSHS), the Texas Health and Human Services Commission (HHSC), and all other associated health agencies. 

The commission's work will likely provide an influential backdrop for the 2015 legislative session, which convenes in January. Already, TMA has weighed in with recommendations and testimony to ensure the state's health agencies are meeting patients' needs — input that in the past led to program improvements and strengthened oversight and accountability.

The process will affect health care delivery across the state, says TMA Board Trustee Gary Floyd, MD, who testified this summer on some potential patient safety threats that sneaked into one of the sunset reports. "This process is geared toward ensuring these agencies are doing what they are charged to do. And when it comes to health care issues, I would certainly hope it reinforces the need to involve the House of Medicine in those discussions," he said. "It's about protecting our patients, and as physicians, we need to look at it with that eye: What's best for the public? What's best for our patients? How do we best ensure that any type of care they get is safe for them?" 

Appointed by Lt. Gov. David Dewhurst, TMA Council on Legislation Chair Dawn Buckingham, MD, serves on the commission as a public member. She is also one of three physicians sitting on the panel along with Sens. Charles Schwertner, MD (R-Georgetown), and Donna Campbell, MD (R-New Braunfels). 

"Never before has any profession other than lawyers been represented so well on a commission. And it shows we are recognizing that government affects a lot of our ability to provide care for our patients," Dr. Buckingham said. 

The commission takes its job to clean house seriously, she adds, particularly after noticing certain agencies' failure to carry out previous recommendations for improvement. "We are drawing lines in the sand, saying you [state agencies] are either going to follow through or tell us why it can't be done. We want accountability." 

Shaking the Carpets

Under Texas law, the legislature must reauthorize every state agency roughly every 12 years, or the agency will cease to exist. During the interim following the 2013 legislative session, the Sunset Commission is simultaneously reviewing all of Texas' health agencies — all of which affect what Dr. Floyd described as the most vulnerable of patients. 

TMA closely monitors sunset actions on the major health agencies and keeps a close eye on other agencies affecting medical practice, such as the University Interscholastic League (UIL), which oversees physical exams for public school athletes, and the Texas Health Care Information Council, which monitors health data collection. 

Under a three-step process that started last spring:  

  1. The Sunset Commission staff reviews each state agency and publishes reports recommending solutions to any identified problems. The reports list each agency upon their release.
  2. The commission hears public testimony on its recommendations and votes on which changes to send to the Texas Legislature for consideration when it convenes in 2015.
  3. The legislature considers the sunset recommendations, which become part of draft bills that must go through the normal legislative process. Final decisions on an agency's future ultimately rest with lawmakers, who may choose to continue an agency with improvements or abolish it entirely.  

TMA physicians testified this summer on the Sunset Advisory Commission's DSHS report, and doctors provided preliminary comments on the UIL sunset review. A report on HHSC is due out this month. 

Dr. Buckingham says the commission also is reviewing the State Office of Administrative Hearings (SOAH), which oversees the courts physicians must go through for disputes with the Texas Medical Board (TMB), and TMB itself will be up for review in 2017. The SOAH sunset report is due out in November. 

"There are a lot of things in sunset that doctors should be paying attention to," Dr. Buckingham said. "We're streamlining a lot of processes at the various agencies, and we're trying to see what we need to do to help the agencies stay focused on their core missions and not be distracted by things that don't relate to that."

DSHS in the Hot Seat

The commission made that clear in a critical review of DSHS that found one of the most complex agencies in Texas state government — with more than 200 programs, 165 funding streams, and an "ambitious mission" to improve health and well-being in Texas — "was set up to be a jack of all trades, and a master of none." 

The legislature created DSHS in 2003 by consolidating at the time the Texas Department of Health, the Texas Commission on Alcohol and Drug Abuse, the Health Care Information Council, and mental health functions of the Texas Department of Mental Health and Mental Retardation.

The sunset review identified many instances since then where "DSHS has struggled to address longstanding concerns, despite clear and repeated direction from the legislature, stakeholders, and other outside reviews." As a result, several recommendations in the report "reflect a need for the agency to simply do its job better."

Overall, TMA agrees with the Sunset Commission findings that Texas has a fragmented public health system, and the broad scope of its regulatory tasks compromise the agency's ability to focus on its core mission. 

To help close some of the gaps, Executive Director of the Williamson County and Cities Health District William S. "Chip" Riggins, MD, testified for TMA in July that "a deliberate, more comprehensive focus on Texas' public health infrastructure is needed." To be more effective, the family and preventive medicine specialist added, public health also "must be better engaged with physicians at the local levels." 

Dr. Riggins praised the additional investments the 2013 legislature made in mental health. But he strongly encouraged DSHS to better communicate with physicians about services for at-risk populations. Pediatricians and primary care physicians, for example, are often the first access point to mental health services for many patients. Obstetrician-gynecologists often counsel pregnant patients on substance abuse. Yet DSHS does little to provide physicians with information on available services, Dr. Riggins testified. 

The TMA Council on Science and Public Health member and chair of the DSHS Preparedness Coordinating Council also urged the agency to turn to local physicians as the "boots on the ground," often the first to identify potential infectious disease outbreaks and respond with appropriate interventions. "Physicians can begin to support and collaborate with population health only if we have strong communications with public health agencies about the public health services and gaps in every community." 

A member of the TMA-supported Senate Bill 969 advisory committee on core public health services, Dr. Riggins suggested expanding that panel's charge as yet another way to help strengthen public health infrastructure and medicine's involvement.

By press time in late August, the Sunset Advisory Commission had adopted a series of legislative recommendations that, among other directives, would tell DSHS to:   

  • Establish clear goals for the state's public health system and develop an action plan with regional strategies and milestones to meet those goals.
  • Review current methods for allocating regional mental health funding to determine whether the allocations match the prevalence of mental illness in associated regional populations; and
  • Integrate mental health and substance abuse hotline, screening, assessment, and referral functions.  

The adopted recommendations also direct HHSC to establish a behavioral health advisory committee to provide regular input and recommendations on related programs across the health and human services system.

DSHS supported most of the recommendations, and "as an agency, we're supportive and open to new suggestions that may help improve efficiency and better serve people in Texas," a spokeswoman told Texas Medicine

Patient Safety Threats Sneak In

Dr. Floyd says TMA also remains on guard against opportunities for legislative mischief that could potentially weaken agencies' — and ultimately physicians' — ability to ensure safe and effective patient care.   

While TMA generally supports the idea of taking certain regulatory tasks off of DSHS' full plate, proposals to strip the agency of its role in licensing certain allied health care professions, for example, "are simply dangerous to the public," said the pediatrician and executive vice president of government affairs at John Peter Smith Hospital in Fort Worth and the Tarrant County Hospital District. 

The initial DSHS sunset review suggests discontinuing 19 regulatory programs housed at DSHS left over from predecessor agencies. They range from certified food handlers and tanning bed facilities to x-ray technicians and midwives. Instead, the report recommends eliminating or transferring those programs to the Texas Department of Licensing and Regulation (TDLR).

"We question placing oversight of those who assist with the birth of a child under the same agency that supervises refrigerator repairs," Dr. Floyd testified in July. 

TDLR in comments to the Sunset Commission agrees that supervising the midwives program would be "outside the scope of TDLR's mission" and suggests it remain at DSHS, because of its "close relationship" to the Bureau of Vital Statistics and the medical profession. 

When it comes to patient care, the state must ensure accountability for those involved, Dr. Floyd told Texas Medicine

"There has to be some consistency about the licensing process. Otherwise, it throws the investigation or the onus of proof that they [allied professionals] can do what they claim they can do onto the facility, or hospital, or clinic hiring them," when many don't have the resources, he said. "And if we are really dealing with patient care, that [oversight] should be under the Texas Medical Board."

Dr. Buckingham and Senators Campbell and Schwertner were part of a sunset workgroup that supported the TMB alternative. The commission in August ultimately suggested DSHS:  

  • Transfer regulatory programs for medical physicists, medical radiologic technologists, perfusionists, and respiratory care practitioners to TMB, and create associated advisory committees and boards starting in 2016. TMB oversight also would require fingerprint-based background checks. 
  • Retain oversight of certain therapists, counselors, and social workers.
  • Transfer 12 programs — including midwifery — to TDLR "to allow DSHS to focus on public health matters instead of occupational licensing." 
  • Deregulate 11 activities and occupations, such as bottled and vended water, food handlers, and opticians. 

The Sunset Commission also voted to exclude chiropractors from administering UIL pre-participation physical exams. "In the face of mounting concerns about threats to student athletes such as cardiovascular and neurologic conditions, the Sunset Commission's recommendation specifies that a physician, physician assistant, or nurse practitioner must sign off on the examination," said TMA President Austin I. King, MD.

Up Next: HHSC 

Meanwhile, TMA officials expressed concern that HHSC's functions have changed dramatically since the agency's last sunset review in 1999. HHSC includes five agencies administering more than 200 programs ranging from Medicaid to child protective services, but primarily focuses on Medicaid and the Children's Health Insurance Program.

With the transition to Medicaid managed care, the agency provides few direct services to Texas patients. Instead, HHSC contracts out most Medicaid services to HMOs, reinforcing the need for increased oversight of those companies — as TMA has repeatedly insisted. 

Some of the possible improvements HHSC pointed to in its own sunset self-evaluation appear to align with those and other reforms TMA has clamored for, including: 

  • Adding new contract requirements to ensure Medicaid HMOs help patients maintain eligibility and continuity of care;
  • Streamlining enrollment and credentialing processes for Medicaid participating physicians;
  • Increasing oversight of Medicaid HMO business practices and quality outcomes; and 
  • Reducing barriers to fully implementing statewide health information exchanges. 

"There's also a lot of confusion for patients in the new Texas Women's Health Program [TWHP]," Dr. Buckingham added. 

Because HHSC and DSHS share responsibility and funding for the program's operation, patients must navigate back and forth between the two agencies, and Dr. Buckingham expects "further coordination to make it easier for women to access these services."

HHSC's self-evaluation also calls for a "more effective method" for operating TWHP, including the possibility of "transitioning additional TWHP operational authority to DSHS." 

Public testimony on the agency is set for mid-November. 

Amy Lynn Sorrel can be reached by telephone at (800) 880-1300, ext. 1392, or (512) 370-1392; by fax at (512) 370-1629; or by email.

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June 02, 2016

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