Medical Economics Feature -- October 2003
By Walt Borges
The Texas State Board of Medical Examiners (TSBME) provided Texas physicians with their second regulatory win of the day on Aug. 15 when it agreed to revise its proposed medical records rules to incorporate changes recommended by the Texas Medical Association and to delay consideration of other new disciplinary rules so that it could study TMA proposals.
Just hours earlier, the Texas Department of Insurance issued emergency prompt pay rules that overcame health insurers' objections to providing effective protections for physicians.
TSBME's actions pleased TMA officials who have watched the board with concern as it responded to critical press reports with an increasingly aggressive stance toward doctors.
"We are pleased to see that the board and its staff are taking our comments seriously and are considering incorporating them into the final rules," TMA President Charles W. Bailey Jr., MD, said. "The medical community would like to see disciplinary action taken for clinical, not clerical, activities.
"Texas physicians are ready and willing to help with the effort to improve our disciplinary system with focused, meaningful, and effective changes," Dr. Bailey said. "The goal is to promote patient safety without impairing the ability of good doctors to care efficiently for their patients."
The problems perceived by TMA leaders were contained in draft rules governing medical records and disciplinary guidelines.
Proposed Section 165.1 of the board's rules defined the medical records that must be kept for each encounter with a patient. The list of required information was extensive and could be read to require doctors to repeatedly reenter prior medical histories and examination results for each meeting with a patient.
In a letter to the board, Dr. Bailey called the proposal "a rather lengthy complex cookbook formula for the mandated contents of a medical record."
He said busy office practices could not comply with all the requirements, and reminded board members that "the medical record is a tool created by the physician to aid himself or herself in the continuation of the treatment of that patient. As such, the physician should be given latitude to create a tool that best suits his or her specialty, practice, and patient population."
TSBME was correct in requiring that medical records be "complete, contemporaneous, and legible," Dr. Bailey said, but he raised the possibility that the required detail in the record served another purpose for the board, which has come under fire in the press for lax prosecution of dangerous doctors.
"It is clear that TSBME has developed these requirements for the ease of prosecution, as it is apparent that the board no longer wishes to use expert testimony of physicians to establish the standard of care for the maintenance and creation of medical records," Dr. Bailey's letter said. "A cookbook approach only serves as a 'gotcha' for prosecution."
In response, the TSBME altered the section. Instead of mandating that medical records include all the listed elements, the board said the record "should" contain them.
Among the elements required for each encounter with a patient are the reason for the encounter and relevant history, prior examination findings and prior diagnostic tests, and 12 other areas of information. TMA leaders say the draft rule would have made required recordkeeping time-consuming and repetitive since much of the information recorded for each encounter can be found elsewhere in the medical records kept by diligent physicians.
The change, according to TMA's legal staff, gives the board and physicians greater leeway to determine when a medical record is sufficient and makes it unlikely that the board could discipline a physician simply for failing to include a specified element.
Before adopting the revised section, TSBME also added language that recognizes that the amount of work required to keep the record has some bearing on determining whether a medical record is adequate.
The new rule went into effect in early September.
One HIPAA Standard for All
In his letter, Dr. Bailey also pointed out that TSBME was expanding the scope of the federal Health Insurance Portability and Accountability Act (HIPAA) privacy provisions to include those Texas physicians who are not covered by the federal law.
He said the Texas Occupations Code does not give patients physical access to medical records, as proposed by the TSBME. Nor does state law authorize the board to require physicians to get a patient's permission before providing a narrative or summary of the medical record in lieu of an actual copy.
Dr. Bailey also objected to TSBME's plan to alter the rules on what doctors can charge patients for copies of their medical records. Current rules allow physicians to charge up to $25 for the first 20 pages and 15 cents for each additional page. TSBME suggested using the federal cost-based standard. Such a standard would lower the amount doctors could charge to the actual cost of producing the record, with no charges allowed for the time spent searching for and retrieving the medical records.
TSBME "improperly imposes federal standard[s] on Texas physicians," Dr. Bailey wrote. "Further, TMA believes the maximum allowable charges . . . is inadequate. TMA asks the Board to modify these fees to comport with comparable industry standards."
Both the privacy and cost provisions were contained in Section 165.2 of the new rules, which the board decided to hold to consider revisions, including a discussion of whether the allowable charges should be increased.
Pursuing the Heirs
Dr. Bailey also targeted a proposal in Section 165.5 that apparently would have made widows, widowers, and other surviving heirs of a physician subject to administrative and criminal penalties for improperly disposing records.
He said TMA was "perplexed" by the TSBME's decision to regulate the estates of doctors when they were not authorized under state law to do so.
"TMA is simply unaware of the legislative grant that provides the TSBME with the charge to regulate estates," Dr. Bailey wrote. "As regulations are adopted to be enforced, TMA can think of nothing more heinous than the board actively pursuing a criminal violation of this provision against a new widow or widower."
The board agreed that holding spouses and the estate responsible for a dead physician's records presented a problem. The section was tabled to allow further study.
Among other proposals withdrawn from the meeting agenda were revisions of the disciplinary guidelines that contained a major obstacle for doctors accused of professional misconduct. Section 190.3 contained a laundry list of acts that "are presumed to be violations of the Act." A doctor would have been allowed to explain or rebut the charge, but TMA lawyers say that the section's language effectively forces a defendant to prove his or her innocence instead of requiring the board to prove the doctor guilty of misconduct.
"It is a perversion of the disciplinary system to make a mere allegation after which the defendant physician has the burden and responsibility of proving himself or herself innocent of such allegations," Dr. Bailey wrote. "The simple act of 'presuming' in rules certain conclusions cannot substitute for the due process requirements established by the legislature."
Dr. Bailey's letter pointed to problems with other proposed disciplinary guidelines. One could be construed to require physicians to discuss alternative treatments, such as chiropractic and acupuncture, and another could be interpreted to regard hiring an attorney to deal with a disciplinary complaint as a failure to cooperate, thus submitting the physician to additional criminal sanctions.
TSBME official Pat Wood says the draft disciplinary guidelines were reorganized, rewritten, and reprinted in the Texas Register , a requirement for further consideration by TSBME. After a comment period, the board is likely to make a final consideration of the disciplinary guidelines in December.
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