Legislative Affairs Feature -- February 2004
By Ken Ortolon
The past several years have proven quite challenging for the Texas State Board of Medical Examiners (TSBME). It's had three executive directors, it was accused by the media of failing to deal strongly and swiftly with incompetent physicians or with those who had drug problems or inappropriate sexual contact with patients, and then the Texas Legislature put it under a microscope as part of the successful push to enact major medical liability reforms.
Now, TSBME faces another challenge: sunset review, the politically charged process in which state agencies must justify their existence to lawmakers every 12 years or be abolished. Sunset Commission review of TSBME and other agencies that license health care professionals will begin this spring and will lead to what could be a hot debate in the 2005 legislature to reenact the board and the Medical Practice Act, under which it operates.
Fort Worth ophthalmologist Lee S. Anderson, MD, president of TSBME, says sunset review could allow allied health professionals to seek greater inroads in the practice of medicine. He believes, however, that this sunset review could be less contentious than previous reviews because of the close scrutiny and sweeping reforms enacted by lawmakers in 2003. Senate Bill 104 not only gave the board new powers to remove potentially dangerous physicians from practice, pending investigation, but also gave the agency additional funding to beef up its enforcement staff. TSBME was one of the few agencies whose appropriations increased in a year in which lawmakers slashed spending to make up for a $10 billion shortfall.
Dr. Anderson, a board member since 1997 and president since 2000, says the changes were necessary for tort reform and vital in assuring voters who were asked to cap noneconomic damages in professional liability suits that the vast majority of Texas physicians are delivering a high standard of medical care.
He also says scrutiny from lawmakers and the media, while not always pleasant, has helped the board refocus on its mission, aggressively police the medical profession, and improve its own policies and processes. Since the first Dallas Morning News articles were published two years ago, the board has largely cleared a backlog of complaints, some of which had been sitting idle for years. And, it has streamlined its licensing process, cutting the average time it takes to complete the application process by more than half.
Texas Medicine recently discussed past and future challenges facing TSBME with Dr. Anderson. He also will make a presentation to the TMA Winter Conference Feb. 28 in Austin.
Texas Medicine : Why did you take the TSBME job?
Dr. Anderson : I survived prostate cancer in 1996. That had a profound effect on my thinking about what I wanted to do with the rest of my life. One of the best years of my professional career was when I was president of the Tarrant County Medical Society. I loved the fray, so to speak, the policy issues, and advocacy for the profession of medicine.
Once that year was completed, I wanted to participate at another level. That's when I started looking at a possible state appointment. I had been involved with the Bush campaign and the opportunity came with that.
Originally, they asked me if I would consider a position on another agency, but I really didn't have any passion for that particular appointment, so I said no to the appointments office.
A couple of months later, they asked me if I would consider the State Board of Medical Examiners. Other than filling out the form and paying my dues every year, I really did not have an interaction with the board. But I thought it sounded pretty good, so I signed up for it.
Texas Medicine : What was your perception of service on the board, and how does that compare with reality?
Dr. Anderson : That it was going to be like serving in the Texas Senate, that we would have wood-paneled boardrooms and all this stuff. As it turned out, it's basically gray desks and a true government situation. I certainly did not understand the lack of financial support for a state agency with that type of obligation.
I thought we would be dealing with licensure problems, which are very technical. And, I honestly thought it would be purely an oversight position, that the agency would run on its on motor and the processes would be fairly well stratified, would be well thought out, and would be in place so the disciplinary and licensure actions would be fairly straightforward. I thought the board would be working with policy issues.
To some extent that was correct, but it turned out that because of budget issues and perhaps some bureaucratic notions, things weren't as good as we thought.
Texas Medicine : In the seven years you've been on the board, what has your relationship with your colleagues been like? Has it changed?
Dr. Anderson : It's hard to tell, honestly. Since I'm in a referral practice, there was a while when I thought people wouldn't want to send anything over here for me to work on because it might be dangerous to their licensure health. I don't think that's been a big problem.
I don't honestly know what people might say behind my back, but I know a lot of people express gratitude for physicians in general and also for the public members for taking the time to do this kind of work. Most people whom I am friendly with and have respect for and collegial with have been very supportive.
They get angry sometimes with some of the initiatives, such as competency. How do you determine competency? I think the ultimate question that the board and, more broadly, the whole profession of medicine need to deal with is, what does an unrestricted license to practice medicine mean to the public? The questions that always come up are about what to do with a 91-year-old practicing family practitioner in a small town who's not on a medical staff? Who's watching what he's doing? What about a physician who has been rehabilitated from cocaine abuse? Should that doctor, as a condition of licensure, be asked to recertify on an occasional basis or take some dexterity skills course? Their license on the wall looks the same as mine.
Another issue is continuing medical education (CME). Typically, the public perception of physician CME is not good. Their idea of doctor CME is an empty classroom in Aspen with a VCR going and a full sign-up sheet.
Texas Medicine : What would you say to the public about the quality of Texas physicians and your level of confidence that they're practicing good medicine?
Dr. Anderson : At least 90 to 95 percent of physicians in Texas are doing what they're supposed to be doing. They're getting up, they're making their rounds, they're doing their charts. They're taking CME because they want to, not because they have to, and they're interested in learning. I tell people that we deal with 5 to 10 percent of aberrant behavior doctors in the state and they become aberrant for one reason or another. It could be home issues, it could be cognitive dysfunction, it could be practice expectations that did not happen, it could be partner relationships, or it could be just personal meltdown. But, in general, I think the practice of medicine is doing pretty well.
Texas Medicine : During your time on the board, you've worked with three executive directors and the board has come under harsh criticism from the Dallas Morning News , arguably the most powerful newspaper in the state. Now the board is about to go through sunset review. What have been the greatest challenges that you and current director Dr. Donald Patrick have faced in dealing with those issues?
Dr. Anderson : I ended up being the default executive director from May to October 2001, when Dr. Patrick came on board. I went to Austin every Friday for nearly four months. The other members of the board and the executive committee pitched in, and we put together a new concept of a management team that gave the chief operating officer an opportunity to bloom as the person who drives the day-to-day operations, and the executive director runs the management team.
That was the nidus of starting a total reorganization of the way business is done. In the past, a lot of the work was done sort of in little fiefdoms. It had individual memory but not institutional memory. And it became clear during all this turmoil that we needed institutional memory rather than individual memory. We needed to have a better process in place.
So the board moved from oversight to developing expectations. In the past, the board was giving some input, but it really depended on the executive director to deliver the expectations. We wanted the expectations to come from what we thought needed to be done. We didn't want to get into micromanaging, but we had to look at all of the processes from one end to the other. And to do that, something needed to happen.
The first thing Dr. Patrick did, to his credit, was take the licensure application home and fill it out. He came back the next day and said, "This thing is way too long. In these 32 pages is way too much redundant information. This can be done in eight to 10 pages or less. Go make it happen."
Then he took the drug test and he visited all of the medical schools. His notion, with my encouragement, was to do everything he could do to walk in the shoes of a physician under our scrutiny, before the (2003) legislative session started.
So then ( Dallas Morning News reporter) Doug Swanson's article hit. Doug sat right in that chair and his first question was, why doesn't the board revoke all these bad doctors?
We said we'd like to try to rehabilitate some of these people first. We'd like to be able to find out what they've done and whether it warrants revocation. Revocation is an incredibly expensive process and we didn't have the funds to revoke a lot of people. Third, there were some people who could delay revocation by legal maneuvering. If we could just get them suspended, the onus would be on the doctor to get this thing fixed.
Under the previous system, if we couldn't suspend somebody who was an ongoing threat to the public health and welfare, that doctor could be out there practicing with a full, unrestricted license until he or she signed a (settlement) order. And the defense bar can string that out for years.
Some of the problem occurred because our investigations took too long. By the time a physician with a substance abuse problem got to the board level, he or she already had been through treatment. It's hard to revoke people who've been through four months of treatment and gotten a clean bill of health. I don't think all those people need to be revoked. Some of them, definitely, ought to have a chance.
As for the sexual offenders, a lot of those cases were "he said, she said" cases, and it takes a lot of information to actually make those cases stick. And then the question is whether they're predators or lovesick therapists.
We had started making improvements before the newspaper articles. We were energized and we had a new executive director.
The newspaper articles turned the agency around. It made us realize that we really did have a problem with our processes. Even though they called me a political hack and other things I did not take too kindly to, they allowed us to get the agency bureaucracy to look in the mirror and say, "We've got a problem here. We need to go to work."
As a result, we set an expectation that we would complete investigations in 125 days. Why? Because we don't want them to be stale. We want to get the complainant appeased as soon as possible, and we want to get the innocent doctor off as soon as possible.
We used to get calls because licensure would take six months for a U.S. graduate. Now we've divided licensure applications into low, medium, and high complexity. The typical low complexity person is a U.S. medical graduate. The second one is a U.S. graduate or graduate from anywhere who has some questions on his or her record like a DWI in another state or probation during training. High-complexity people have multiple malpractice cases, or they're from Iraq or Afghanistan and we can't do primary source verification on whether they went to medical school or not, or they've had substance abuse issues.
Getting a low-complexity U.S. graduate licensed right now takes 22 days. That's a huge difference between 180 days and 22 days.
I'm exceptionally proud of what we're doing. Our product is much better. The licensure product is much better.
Texas Medicine : What are some of the other board accomplishments?
Dr. Anderson : From a disciplinary standpoint, our investigative process has improved significantly. But until SB 104 happened, between 80 and 90 percent of our budget was salaries. So we were left with 10 or 15 percent of our allocated budget to do our operations. We had our hands tied behind our back, absolutely tied behind our back.
When I came on the board, the overhead was about 65 percent, but in order to keep people and keep improving our product, we had to keep upping the salaries and then we had no operating budget to speak of.
That's where SB 104 has come along. To some extent it's a godsend for Texas physicians. I think they are going to get their money's worth. I can't tell you the number of doctors who used to call me and say, "I will pay more money if you can get my potential partner licensed faster." And that has happened. Now it's going to be, "I will pay more money if you'll get this disciplinary process fixed faster, if you'll get the good doctors who've had a complaint against them cleared faster."
We had 6,000 complaints last year and we had only 20 investigators. I'm very pleased with how the investigations are going. We've hired some new people, we've put together better use of our attorneys' time, and we've developed teams to go to the State Office of Administrative Hearings.
We've also changed the drug-testing program. Under the prior drug-testing system, we had four compliance officers and we had about 160 doctors on drug-testing programs. The compliance officer would randomly call the doctor's office and tell the staff the doctor needed to take a urine test. You can imagine what that was like. The compliance officer would be told the doctor was in surgery or it was his day off or he wasn't in the office.
The physicians weren't being tested like the board thought. We thought they were tested more frequently. It turned out they might be tested half or two-thirds less often than we thought.
So we went to the automated program two years ago in which doctors call in every morning and [are] told whether they need to be tested that day. We had eight people the previous two years who tested positive. This system picked up 14 in three months, which tells me our previous testing program was not doing well.
Texas Medicine : The board will go through the sunset review process for the third time in 2005. What challenges do you think it will face?
Dr. Anderson : The main problem is we will not get credit for being different from what we used to be. Even Doug Swanson's article quoted (state Rep.) Glen Maxey saying he has not seen any improvement in the board in 10 years. We invited Lisa McGiffert of the Consumers Union to a board meeting because we wanted to hear what the Consumers Union thought about what we were doing. She told us we're not getting credit for what we do right. That really stuck in my gut because I know she is correct.
While I feel like we will get a significant amount of scrutiny, I think it will be primarily from people who still think of the board in its previous appearance rather than what it is now.
Texas Medicine : There are some who say the Texas Medical Practice Act is a pretty strong body of law for regulating physicians. Do you agree? If not, how would you change it?
Dr. Anderson : We work inside of the Medical Practice Act and I think it's workable. I think it makes a lot of sense. We have a laundry list of some tweaking of the Medical Practice Act, but we certainly don't see it as an opportunity for major overhaul. In general, I think it's a very workable document.
Texas Medicine : What would you like to see "tweaked"?
Dr. Anderson : I may not be very popular for some of these comments, but, for instance, the original board law said a physician was not eligible for licensure if he or she failed the USMLE (United States Medical Licensing Examination), or any part, in more than three attempts. Then it was changed to four attempts on one section, then to five attempts on one section if the physician is board certified.
That's not based on any kind of sense. It's based on individual need because that's usually from somebody's constituent who can't get a license here, whereas the data say that 91 percent of U.S. graduates pass the USMLE on the first attempt. Why do we need a physician who had 6, 8, 10 chances to pass the USMLE? What's wrong with this picture?
Texas Medicine : Will the passage of SB 104 and the scrutiny the board received make the sunset process easier this time?
Dr. Anderson : I believe so, because we can show not only the process improvements that were already initiated, but also the scrutiny the board was under and how we've used some of that to improve our processes. Plus, SB 104 has not only helped us from a fiscal standpoint, but also gave us the ability to immediately suspend a physician pending investigation.
Texas physicians probably ask who gave us the right to suspend their license without notice. We were stuck in a very legal world. Defense lawyers would come in and say, "My client is no longer a real and present danger because he stopped taking Vicodin last Friday and it's all out of his system."
So we were stuck with having to go through this process and trying to get an agreed order signed and that takes months, yet here's the doctor still potentially misbehaving. Until they sign, what are we going to do to them?
We will use that authority to immediately suspend a license very exceptionally and judiciously.
The third major component of SB 104 is defining the unlicensed practice of medicine as a felony as opposed to a misdemeanor. If a doctor has had his license revoked but he still has his prescription pads and continues to write prescriptions, we can call the police and they'll say it's just a misdemeanor and they're not going to mess with it. But for a felony offense, they'll go out there and get him.
Texas Medicine : What is the most important thing doctors can do to make sure they won't come under the board's scrutiny?
Dr. Anderson : Even I had a complaint since I've been on the board. The number of doctors who are going to get through their entire career without a complaint is pretty small. But doctors should understand that if they're doing what they're supposed to in a timely manner and keeping records, the likelihood, based on the resolve and the respect that the board has for the practice of medicine, is that they will be found not guilty if they truly are not guilty. Even though it may be a hassle to get there sometimes, we're trying to decrease that hassle factor by decreasing investigation time and decreasing the amount of time it takes to determine that nothing came out of it.
Texas Medicine : When your tenure is over, what would you like to say were your accomplishments?
Dr. Anderson : That we developed procedures, policies, and processes that are institutional in nature and not dependent on any single individual's wisdom and memory. And that those processes and procedures are willing and able to withstand additional scrutiny, tweaking, and improvement for whatever the demands of the day are, whatever the evolution of health care is.
Ken Ortolon can be reached at (800) 880-1300, ext. 1392, or (512) 370-1392; or by email at firstname.lastname@example.org .
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