(June 21, 2011): Last week, Texas Governor Rick Perry signed legislation aimed at bringing modest reform to the rules governing investigations of physicians by the Texas Medical Board. The Texas Medical Board is the state’s regulatory body that licenses and disciplines physicians and other health care professionals. House Bill 680 — HB 680, which takes effect on September 1, 2011, is seen as a hard-fought victory by Texas physicians. To their credit, the Association of American Physicians and Surgeons (AAPS), a professional association of physicians in all types of practices and specialties, has reportedly been one of the strongest advocates for reform measures such as this in Texas and across the country.
I. Important Provisions of HB 680:
The primary purpose behind HB 680 concerned reforming the complaint process filed with the Texas Medical Board. Among other provisions, several of the most important changes to the Board’s rules included the following:
- The Texas Medical Board may no longer accept “anonymous” complaints. An “anonymous” complaint is one which lacks sufficient information to identify the source or the name of the person who filed the complaint. Sec. 154.0535 of the Texas Occupations Code.
- Requires the names and addresses of insurance companies and their agents, third-party administrators and pharmaceutical companies who file complaints to be given to the physician subject to the complaint. Furthermore, unless the notice would jeopardize the investigation, the Texas Medical Board must notify the physician of those complaining parties no later than the 15th day after the date the complaint is filed. Sec. 154.0535
- Establishes a seven (7) year statute of limitations on complaints, unless the complaint dealt with care provided to a minor. In that case, the Texas Medical Board may not review or proceed on a complaint after the later of either:
- The date the minor is 21 years of age; or
- The seventh anniversary of the date of the care. Sec. 154.051
- Allows the physician to have his Informal Settlement Conference (ISC) hearing with Texas Medical Board officials to be recorded, thereby reducing any potential abuse of power. These recordings become part of the physician’s investigative file and may not be released to third parties unless authorized under other provisions of the Occupations Code. Sec. 164.003.
- Requires that the Texas Medical Board dispose of a contested case by issuing a final order based on an administrative judge’s (ALJ) findings of fact and conclusions of law. Importantly, the Texas Medical Board may not change an ALJ’s “Findings of Fact” or “Conclusions of Law” or vacate or modify the ALJ’s order. Nevertheless, the Texas Medical Board still retains its sole authority and discretion to determine the appropriate action or sanction. The ALJ may not make any recommendations regarding these latter decisions. Sec. 164.007(a) and (a-1).
- Extends the timeframes the Texas Medical Board has to complete a preliminary investigation of a complaint and notify a physician of an ISC from 30 to 45 days. Sec. 154.057(b)
- Allows the Texas Medical Board to propose and institute a “remedial plan” to resolve the investigation of a complaint. This plan may not contain a condition that either revokes, suspends, limits or restricts a physician’s license or other authorization to practice medicine. Furthermore, the plan may not contain a provision that assesses an administrative penalty against a physician. However, the Texas Medical Board may assess a fee against a license holder participating in a remedial plan in an amount necessary to recover the costs of administrating the plan. Sec. 164.0015
- Prevents “remedial plans” to be used in certain cases. For example, “remedial plans” may not be imposed to resolve complaints concerning:
- A patient’s death;
- The commission of a felony;
- A matter where the physician engaged in inappropriate sexual behavior or contact with a patient or became financially or personally involved in an inappropriate manner with a patient; or
- An appropriate resolution that may involve a medicine. Sec. 164.0015
- Bars the issue of a remedial plan to resolve complaints against a physician if the license holder has previously entered into a remedial plan with the Texas Medical Board for the resolution of a different complaint. Sec. 164.0015
- Allows remedial plans to become public information. Furthermore, in civil litigation matters, these plans constitute a settlement agreement under Rule 408, Texas Rules of Evidence. Sec. 164.002(c) and (d).
II. Several Provisions of Earlier Legislative Efforts Were Not Included in HB 680:
HB 680 is an important step in the right direction for medical board reform. However, the Bill falls short of earlier legislation that had been introduced in the State. Many of the provisions in HB 680 were taken from Texas HB 1013 which had passed the Texas House 147-0 on May 10, 2011. HB 1013 was allegedly drafted to provide legal due process protections for physicians and require for administrative transparency and accountability by the Board. Important proposed reforms covered by HB 1013 which were not incorporated in HB 680 include:
- Eliminating “confidential” complaints. With a “confidential” complaint, the Texas Medical Board knows the name of the person or group who files the complaint but keeps that name confidential from the physician subject to the complaint. The physician would have received a copy of the complaint containing the name of the person filing the complaint. Only patients and the patients’ relatives would have been exempted from disclosure.
- Prohibiting conflicts of interests by Board members. The provision stems from instances where Texas Medical Board members served as witnesses to medical malpractice cases while serving simultaneously serving on the Board, without disclosure to the public or to the physicians subjected to the Board’s review/discipline.
- Allowing the Texas Medical Board to only use actively practicing physicians as experts, who would be allowed to review the accused physician’s record, but without knowing the particular name of that physician.
- Assigning ISC panel members randomly.
- Entitling physicians, like attorneys, to a right to a jury trial if their license would be revoked.
- Making the Texas Medical Board annually disclose a list of those individuals who participated on its ISC panels, as well as how often.
Despite having 87 sponsors to the bill, HB 1013 was reportedly blocked from being heard in the Texas Senate.
As previously discussed, when the Texas Medical Board is unable to resolve a case, the case is then referred to an ALJ at the State Office of Administrative Hearings. Like many States, prior to the passage of HB 680, the Board did not have to accept the “Findings of Fact” or “Conclusions of Law” issued by an ALJ assigned to hear a case. HB 680 now requires the Board to accept the ALJ’s decisions on whether a physician has committed a violation. This single change is a huge “win” for Texas physicians.
While Texas physicians are far better off today than they were prior to enactment of HB 680, it is important that they familiarize themselves with their obligations under the Texas Medical Practice Act. The TMB remains strong and is known for the stringent positions it takes.
Robert W. Liles, J.D., M.B.A., M.S., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law. Liles Parker attorneys have extensive experience representing physicians and other health care professionals in investigations and disciplinary actions taken by the Texas Medical Board and other State Medical Boards. Need assistance? Call us for a complimentary initial consultation. We can be reached at: 1 (800) 475-1006
 “Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice or interest of a witness or a party, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution”