(February 10, 2013): Texas physicians face a myriad of challenges each and every day. In an era when reimbursement rates are declining yet many expenses are continuing to rise, physicians are also seeing many of their services co-opted by physician assistants and nurse practitioners, thereby further increasing competitive pressures. Unfortunately, these challenges only represent the proverbial "tip of the iceberg." A Texas Medical Board (TMB or Board) complaint against a physician can arise in a variety of ways. While the law was changed in 2011 to prohibit the filing of an "anonymous" complaint, the number of complaints filed against Texas physicians has continued to rise. As discussed below, if a complaint has been filed with the TMB against your license, you need to take care when responding to the Board's concerns.
I. TMB Complaint Statistics for 2012
As of the end of Fiscal Year (FY) 2012, there were 52,496 licensed physicians (MDs and DOs) in Texas. During this same period, a total of 7550 complaints were filed against physicians with the Texas Medical Board. As a review of enforcement statistics over the last decade will show, the number of complaints filed with the Texas Medical Board has increased considerably over the years, with the number of complaints filed in FY 2012 only exceeded by those filed in FY 2011. According to the American Association of Physicians and Surgeons, the Texas Medical Board". . . has been disciplining physicians at four times the rates of comparable States."
In light of these of these statistics, it is imperative that Texas physicians take affirmative steps to comply with applicable regulatory requirements and professional ethical guidelines. This article examines several of the primary professional"risk" areas to be avoided by Texas physicians.
II. A TMB Complaint Can Result in Severe Disciplinary Action
Complaints to the TMB may arise in a variety of ways. Many of the complaints filed with the TMB arise as a result of the following:
- Patient Complaints: Typically filed by a dissatisfied physician, their families, guardians or friends.
- Associated Physician or Other Medical Professional: In many instances this is associated with the break-up of a medical practice, the expulsion or termination of a practice physician or other employee, or a dispute over the distribution of fees among physicians.
- Competitor: We have seen several instances where a Texas Medical Board complaint arose out of perceived instances of inappropriate conduct which placed one physician at a disadvantage in the marketplace. For example, one physician may improperly waive the co-payments of certain classes of patients or engage in questionable marketing practices. Alternatively, a physician may believe that the care provided to a patient by one of his peers was inadequate or failed to meet the standard of care.
- Government Regulatory or Enforcement Agencies / Government Contractors: Over the last decade, State and Federal health, regulatory and enforcement agencies have greatly increased both their levels of coordination and cooperation. For instance, in a number of jurisdiction, if the State Medical Board takes disciplinary action against a physician based on it conclusion that the physician failed to exercise the proper level of supervision over a physician assistant or nurse practitioner), both the Federal government and one or more contractors working for the Centers for Medicare and Medicaid Services (CMS) will likely soon learn of the disciplinary action taken and may then initiate a post-payment audit of the physicians claims in order to determine if the services rendered should, in fact, have been paid.
- Private Insurance Payors: Literally all private health insurers carefully monitor claims submitted to their plan by physicians and other participating clinicians for payment. Using data mining to identify outliers, a payor may then decide to conduct an audit of a physician’s claims to see if a physician is submitting improper claims for payment. Should a payor identify wrongdoing, it may choose to take administrative action against a physician, possibly terminating him/her from their plan as a participating provider.
- As an aside, most, if not all applications to serve as a participating provider must be renewed annually and require a physician to notify a payor if they are investigated or disciplined by a State Medical Board within 30 – 60 days. Should a physician fail to provide timely notice of a disciplinary action taken, some payors are very aggressive in terminating a physician from their plan.
III. How Should You Respond to an Inquiry from the TMB?
Disciplinary actions taken against a physician as a result of TMB complaint may range from a dismissal of charges to the revocation of a physician's license to practice medicine in this State. In light of the potential gravity of these situations, it is essential that you take the process seriously. Don't ignore correspondence, calls or visits from representatives of the Board, thinking that a complaint is not serious or that it will eventually just go away. Moreover, be careful when dealing with the Board. Every statement you make to a Board investigator (both oral and/or in writing) may be recited against you later in the process. If you are accused of a violation and are required to respond to the Texas Medical Board, you should think carefully before deciding to represent yourself in the process.
One case we are aware of (but did not handle) initially involved the failure of a physician to provide copies of medical records to a requesting patient within the time period allotted (15 days). As the case later unfolded, additional charges were levied and the Texas Medical Board ultimately suspended the physician's license.
Prior to engaging an attorney to represent you, inquire how often the attorney handles State Medical Board cases. Is the attorney a health lawyer who is familiar with medical necessity issues, standards of care, evidence-based medicine arguments and billing/coding requirements? Don't choose an attorney to learn how to handle your case -- engage knowledgeable, experienced legal counsel to represent your interests.