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Responding to a Texas Medical Board Complaint

Texas Medical Board complaints are filed against physicians every day.(July 7, 2014): The Texas Medical Board (Board) investigates complaints against physicians, physician assistants, acupuncturists and surgical assistants. A Texas Medical Board complaint can be filed by a patient, a patient’s family or a health care provider. On the average, the Board receives and evaluates over 7,000 complaints each year. The kinds of violations the Texas Medical Board finds from these complaints include inappropriate prescribing, incorrect diagnosis, and medical errors that may have resulted in patient injury.

 

I.  Is There Jurisdiction Over a Specific Texas Medical Board Complaint?

A Texas Medical Board investigation starts when the Board receives a complaint. After a complaint is received, staff analysts first determine whether the complaint is “jurisdictional,” (whether or not the Board has jurisdiction over the complaint). The Texas Medical Board has jurisdiction over anyone with a Board-issued physician’s license and violations which fall under the Medical Practice Act. Complaints that are non-jurisdictional may be referred to another agency.

II.  Informal Settlement Conference:

If the Texas Medical Board has jurisdiction, an investigation of the complaint begins to see if there is evidence sufficient to support a violation of the Medical Practice Act or the Board’s rules. At this point, the Board generally requests records and information from the physician and checks to see if there are any past complaints against him. A physician should consult with an attorney prior to responding to a notification of a complaint against him and should not respond to a request for records until obtaining legal advice.

If the Board finds there is sufficient evidence of a violation, the case goes to Board’s litigation section for an Informal Settlement Conference (ISC). The ISC process gives the physician an opportunity to respond to the complaint and show that his actions were proper. Prior to the actual conference, the physician is given notice of the allegations and the supporting facts. He may be asked to respond to written questions and is given the opportunity to submit information and evidence to the Board panel for consideration. He will also have the choice to either have the ISC determined solely by way of written information or by making a personal appearance before the Board panel. It is critical that the physician only responds after seeking legal counsel. An attorney may make the request that the conference be determined by written information and can manage further correspondence.

At the conclusion of the ISC, the panel either recommends dismissal of the complaint or finds that a violation occurred. If a violation is found, the panel recommends punishment and/or remedial action. The physician can accept the Texas Medical Board’s findings and proposed actions or request the Board to file a complaint with the State Office of Administrative Hearings.

VII.     Final Remarks:

A Texas Medical Board investigation is a very serious matter that should be dealt with immediately upon notice. If a violation is found, the subject of the complaint faces risks including loss of his license. The process generally takes a long time, and knowing which documents to produce may be challenging. It is highly recommended that an attorney be retained to help. In addition to the investigation and gathering of evidence, counsel can advise the subject of the risks and benefits of a personal appearance ISC as opposed to an ISC based on written submission. This is one of those matters where absence of counsel has an adverse impact on the sanctions imposed in the event of a violation.

Healthcare Attorney

Robert W. Liles, Esq., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law. Our Firm’s attorneys represent health care providers around the country in connection with both regulatory and transactional legal projects. For a free consultation, call Robert at: 1 (800) 475-1906.

Texas Medical Board Complaints are Serious Business!

Texas Medical Board Complaints are Serious Business

(September 20, 2013): Like other physicians around the country, Texas physicians are currently facing increasing pressures to ensure that their medical necessity determinations, coverage assessments, documentation, coding and billing activities meet both Medicare’s requirements and those of private payors.  While their duties and responsibilities have continued to increase, reimbursement rates have steadily fallen.  Notably, Texas physicians are also obligated to ensure that their practices comply with each of the professional tenets of the Texas Medical Practice Act.  As many Texas physicians can attest, the Texas Medical Board will not hesitate to investigate and pursue disciplinary action.

I.  Texas Medical Board Complaints Resulted in 41 Disciplinary Actions in August 2013:

Late last month, the Texas Medical Board met from August 29-30, 2013 to consider a number of pending disciplinary cases that have been levied against Texas physicians.  By the end of the meeting, the Texas Medical Board had disciplined 41 licensed physicians and issued two cease and desist orders.  A review of these action can be quite helpful from a “compliance” standpoint.

II.  Overview of the Reasons for Disciplinary Action:

As the summary chart below reflects, a preponderance of the disciplinary actions taken by the Texas Medical Board involved “Quality of Care Issues” under the Texas Medical Practice Act.  Also prevalent among the disciplinary actions were “Non-Therapeutic Prescribing” and “Unprofessional Conduct.”  The ultimate disciplinary actions taken serve to highlight the various types of sanctions that the Texas Medical Board may choose to impose, depending in large part on a physician’s prior disciplinary record and the specific facts of each case.  The various sanctions imposed included:

Agreed Orders for Reprimands.

Peer Monitoring.

Continuing Medical Education (CME). 

Agreements to Refrain [from Certain Conduct]

Revocation of License

Suspension of License

The following chart provides a summary of the various disciplinary actions taken by Texas Medical Board during its August meeting.

 

 

Quality of Care

Unprofessional   Conduct

Other States Action

Physician’s Medical or Mental Condition

Violation of Prior Order

Non-Therapeutic Prescribing

Criminal Behavior

Medical Record Keeping

Other

Total Actions

11

52737213

Agreed Order

9

32736213

Mediated Agreed Order

221

Public Reprimand

2

1211

Monitoring of Physician

2

Agreement To Refrain From Practice

4

213

1

CME

11

53511

1

Fine / Penalty ($)

62131

1

Suspension of  License

2112

Revocation of License

51

1

As the chart shows, the Texas Medical Board revoked the license of physicians during the August meeting primarily based on the “Physician’s Medical or Mental Condition.” The actions of the Texas Medical Board illustrate the role of patient and peer complaints in the investigative and disciplinary process. Each action announced in August, 2013 involved an Agreed Order or a Mediated Agreed Order.  The negotiation of an Agreed Order and the mediation of a Mediated Agreed Order may be best accomplished by a physician with the involvement of an attorney experienced in dealing with the State Medical Board and who understands the remedial and penalty processes typically invoked by a Board of this type.  Should you ever find yourself subject to an investigation by the Texas Medical Board or another State Medical Board, it is essential that you retain experienced health care legal counsel to represent your interests.

The health lawyers at Liles Parker, PLLC, regularly represent physicians and other licensed clinical professionals before State Medical Boards and licensing authorities around the country.  Should you have questions regarding a pending Texas Medical Board complaint, investigation or action, please give us a call for a free consultation.  1 (800) 475-1906.

A TMB Complaint is Serious Business — Don’t Take the Texas Medical Board Complaint Process Lightly

TMB Complaint(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:

(1)   Patient Complaints: Typically filed by a dissatisfied physician, their families, guardians or friends.

(2)   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.

(3)   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.

(4)   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.

(5)   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.

Healthcare LawyerRobert W. Liles and other health lawyers at the firm of Liles Parker have years of experienced handling these and other health law related matters and cases.  Should you have questions, call Robert for a free consultation.  He can be reached at:  1 (800) 475-1906.    

 

The Texas Medical Board Remains Busy Due to High Number of Complaints Filed in 2012

Medical Board(February 7, 2013):  The Texas Medical Board (Medical Board) was quite busy in 2012.  While the number of disciplinary action taken had dropped in some categories, it rose in others.  In fact, the overall number of complaints filed with the Medical Board was the 2nd highest in the last decade. The Medical Board’s workload numbers for 2012 are now in – a total of 7550 complaints were filed by complainants with the Medical Board against physicians last year.  Notably, this was second highest number of complaints filed in the last decade, only surpassed by the number of complaints filed with the Texas Medical Board in 2011.  Notably, a total of 755 “Informal Settlement Conferences” were conducted by panels assigned by the Medical Board, 85 of which were later advanced to the formal stage, with cases being filed with the State Office of Administrative Hearings (SOAH).  What was the result of this heightened adminstrative activity?  An overview of the disciplinary actions taken is set out below.

I.  Temporary Suspension Actions Were Way Down From 2011:

While the number of disciplinary actions taken against physicians was relatively stable (327) when compared to previous years, the number of “Temporary Suspensions” assessed by the Medical Board was only about a third of the suspension actions taken in 2011 (11 in 2012 versus 32 in 2011).

II.  Probation Placement Actions Were the Highest Number in the Last Decade:  

Notably, 917 physicians were placed on “Probation” by the Medical Board in 2012.  This was the highest number of probation actions taken in the last decade.

III.  Why Are the Number of Complaints Filed with the Medical Board Continuing to Rise?             

At the outset, it is important to keep in mind that Medical Board complaints can be generated in a number of ways. In recent years, the number of complaints filed by disgruntled or unhappy patients has continued to rise. Two of the primary reasons for this increase include:

  • Physicians are treating an educated, consumer driven public.  Now, perhaps more than ever before, patients know their “rights” and will not hesitate to complain if they believe that their concerns have been ignored, their care has been substandard, or that they have been treated unprofessionally by a physician or other licensed clinician.
  • Filing a complaint is as easy as filling out a form.  Moreover, it can literally done online, with relatively little effort on the part of the complainant.  With the advent of the internet, it is easier than ever for a patient (or a member of their family) to file a complaint with Medical Board.  Complaints may now be filed online.

The three primary reasons cited in a complaint against a physician include:

“1. Practice of Medicine Inconsistent with public health and welfare; unprofessional conduct which may endanger the public;

2. Non-therapeutic prescribing/administering of a drug or treatment; and

3. Inability to practice medicine by reason of mental or physical impairment (alcohol or chemical abuse, mental or physical condition).”

Importantly, patients and their families are not the only parties to file complaints with Medical Board against their physician. We have represented a number of physicians in cases brought by another licensee, where it is alleged that a physician has engaged in unprofessional conduct which allegedly triggers the complainant’s statutory obligation to file a complaint against their fellow clinician. While a number of these cases are undoubtedly filed in good faith, we have seen the complaint system “used like a club” by one physician against another because of a personal grudge, a business dispute or even a failed romance.

Finally, physicians need to keep in mind that both Medicare contractors (such as Zone Program Integrity Contractors (ZPICs) and private insurance payor Special Investigative Units (SIUs) are now actively filing complaints with Medical Boards around the country due to payor billing concerns (such as alleged upcoding, double-billing, billing for services not rendered and billing for medically unnecessary services).  In some states, the reverse has occurred.  When a Medical Board has found that a physician has failed to provide adequate supervision or may have engaged in improperly billing, referrals have been made from the Medical Board to the ZPIC in their state.  This often results in a new round of billing reviews and audits by ZPICs (and later SIUs) of the physician’s billing practices.

IV. What Can You Do to Reduce the Likelihood of a Medical Board Complaint?

To the reduce the likelihood of a Medical Board complaint, a physician needs to ensure that he/she is readily accessible to patients and their families.  Moreover, let your patients know that you are interested in hearing their views regarding the quality of care provided, the administrative efficiency of your staff, and any concerns which might arise in connection with the cost of care.  Steps to take would include, but are not limited to:

Listen to your patients.  Many complaints filed with the Medical Board are the result of bad communication practices between a physician and his / her patient.   A patient with a complaint wants an opportunity to share his/her concerns with you.  Listen to your unhappy patients.  Are their grievances legitimate?  You will undoubtedly find that some of their issues are, in fact, valid.  Use this opportunity to improve your organization.  Moreover, by showing your interest in the patient’s complaints, you will serve as a role model for your staff.

Follow-up with your patients. Return their calls if an issue has not been resolved.  Be responsive.  The business of medicine is getting more and more competitive each year.  By resolving a patient’s concerns, you will likely keep the patient as a client and may avoid alienating the patient and giving the patient a reason to still recommend you to their peers.

Don’t be afraid to set up a Complaint Hotline or E-mail Address for patients to lodge any concerns that they might have. Let patients advise you of their concerns rather than feel that they have no choice but to go straight to the Medical Board with their concerns.

Patients often don’t know how to read an “Explanation of Benefits” (EOB) form sent to them by Medicare or their private insurance company. This confusion may lead a patient to believe that your charges are incorrect or that certain billed services were not rendered. Take the time to have someone on your administrative staff explain to patients how charges are likely to show up on their EOB.

Importantly, a number of complaints filed against a physician are the result of statements, improper actions or the failure to take an action by someone on your staff. In many cases, the complaint is caused by your lowest-paid, least trained staff member – your receptionist.  We have worked on cases where the staff member failed to mail out a patient’s lab results in a timely fashion, ultimately resulting in a Medical Board complaint.  Our attorneys have seen cases where an administrative staff member accidentally switched two sets of medical records, resulting in breaches of Personal Health Information (PHI).  The bottom line is this regard is relatively simple – train each and every member of your staff and ensure that they know their obligations and the adhere to practice policies and regulatory requirements.

Finally, develop and implement an effective Compliance Plan. Identify potential weaknesses in your organization and take remedial steps to fix them.

Healthcare LawyerRobert W. Liles, JD, serves as Managing Partner at Liles Parker.  Robert and a number of other firm attorneys have represented physicians in a number of State Medical Board disciplinary investigations and actions around the country.  Already represented? We are more than happy to work with your local counsel and assist him / her in responding to any inquiry or investigation initiated against you by your State Medical Board.  Questions?  Please feel free to call Robert for a free consultation.  He can be reached at: 1 (800) 475-1906.

Texas Licensing Boards Have Announced a Pain Clinic Takedown and Have Disciplined Multiple MDs and PAs

The Texas Medical Board is Paying Particular Attention to Pain Clinic MDs and PAs(February 5, 2013):  In late December 2012, the Texas Medical Board and the Texas Physician Assistant Board announced that they had suspended or restricted the licenses of seventeen physicians and four physician assistants as part of coordinated “Pain Clinic Takedown.”  These licensing Boards met over a two-week period in back-to-back disciplinary hearings last December and took action against multiple licensed clinicians in connection with their pain clinic activities. Commenting on the massive enforcement action taken, Dr. Irvin Zeitler, Jr., the President of the Texas Medical Board said:

“This represents more than two years of hard and sometimes dangerous work by TMB staff. . . . . The doctors and physician assistants involved in these illegal operations have been fueling an epidemic of prescription drug abuse and fraud that is killing more people than heroin and cocaine combined. We hope this sends the message that pill mills aren’t welcome in Texas.”

According to the Texas Medical Board, when handling this investigation, their staff worked closely with officials of the Drug Enforcement Administration, the Texas Department of Public Safety, the Texas State Board of Pharmacy, the Texas Board of Nursing and local law enforcement authorities in and around Houston.

A review of the following pain clinic related disciplinary action examples can be quite instructive and can give a real sense of the specific concerns presented by the clinicians’ conduct.  These risk areas can be incorporated into your practice’s Compliance Plan, and can be used to strengthen your efforts to ensure that subordinate licensed clinicians are properly supervised and that pain medications are appropriately handled.

Disciplinary Case — Physician #1:  A disciplinary panel of the Texas Medical Board temporarily suspended license of this licensed physician, ruling that he posed a “. . . continuing threat to the public welfare due to his failure to adequately supervise mid-level providers and due to inappropriate prescribing of controlled substances.”  Physician #1 was responsible for supervising advanced practice nurses and physician assistants who prescribed controlled substances without a legitimate medical need.

Disciplinary Case — Physician #2: As in the earlier case, a disciplinary panel of the Texas Medical Board temporarily suspended license of this licensed physician, ruling that he posed a “. . . continuing threat to the public welfare due to his failure to adequately supervise mid-level providers and due to inappropriate prescribing of controlled substances.”   Physician #2 was responsible for supervising advanced practice nurses and physician assistants who prescribed controlled substances without a legitimate medical need.

Disciplinary Case — Physician #3:   A disciplinary panel of the Texas Medical Board temporarily suspended license of this licensed physician on the basis that he posed “. . . a continuing threat to the public welfare due to his failure to adequately supervise mid-level providers and due to inappropriate prescribing of controlled substances.”

Disciplinary Case — Physician #4:  A disciplinary panel of the Texas Medical Board temporarily suspended the license of a physician on the basis that he posed  “. . . a continuing threat to the public welfare due to his improper and illegal operations of four pain clinics including two unregistered pain clinics and due to inappropriate prescribing of controlled substances.”

Disciplinary Case — Physician #5:  A disciplinary panel of the Texas Medical Board temporarily restricted the medical license of this physician and ordered him to immediately surrender his DEA/DPS controlled substance certificates.   The physician was also “. . .prohibited from treating chronic pain patients and shall not supervise or delegate prescriptive authority to physician extenders.”   The Board further found that the physician posed  “. . . a continuing threat to the public welfare due to his improper and illegal operation of a pain management clinic based on his inappropriate ownership and unlawful method and manner of prescribing controlled substances.”

Disciplinary Case — Physician #6: A disciplinary panel of the Texas Medical Board temporarily restricted the medical license of this physician, requiring that she immediately cease treating chronic pain patients and surrender her DEA/DPS controlled substance certificates. In addition, the physician was “. . . prohibited from supervising or delegating prescriptive authority to physician extenders, may not prescribe for herself or her family and must surrender any Pain Management Certificates issued to her by the Board.”  The TMB further found that the physician’s “. . . continued practice of medicine [posed] a continuing threat to public welfare, and that she failed to adequately supervise advanced nurse practitioners and/or physician assistants at two pain clinics.”

Disciplinary Case — Physician Assistant #1:  A disciplinary panel of the Texas Physician Assistant Board temporarily restricted the license of this physician assistant, thereby “ . . . immediately prohibiting him from the practice of treating chronic pain patients and requiring him to surrender the DPS/DEA certificates that allow him to prescribe controlled substances.”  The Board further found that the licensee posed “. . . a continuing threat to the public welfare because he inappropriately prescribed controlled substances and was not adequately supervised by a physician.”

Disciplinary Case — Physician Assistant #2: A disciplinary panel of the Texas Physician Assistant Board temporarily the license of this physician assistant after determining that her continued practice of medicine posed “. . . a threat to public welfare.”   The Board’s order prohibits the physician assistant from “. . . treating chronic pain patients and requires her to surrender her DPS/DEA certificates that allow her to prescribe controlled substances.”  The TPAB further found that the physician assistant poses “. . . a continuing threat to the public welfare because she participated in the illegal operation of a pain clinic and inappropriately prescribed controlled substances.”

As these examples reflect, both the Texas Medical Board and the Texas Physician Assistant Board take controlled substances quite seriously.  Physicians responsible for supervising subordinate physician assistants and nurse practitioners with prescriptive authority have an affirmative obligation to properly oversee and manage these professional staff members and their pain management practices.

Should you receive notice that a complaint has been filed against you or your practice with the Texas Medical Board or the Texas Physician Assistant Board, it is essential that you take such a matter seriously.  The informal and formal hearing processes are fairly complex.  If at all possible, don’t try to handle this alone – retain experienced legal counsel to represent your interests.

Robert W. Liles and other Liles Parker attorneys are experienced in representing physicians and other licensed clinicians in front of the Texas Medical Board and its associated non-physician licensing Boards.  Should you have any questions, call Robert for a free consultation.  He can be reached at:  1 (800) 475-1906.  

 

Texas Physicians and the Texas Medical Board Under HB 680

HB 680 is an important "win" for Texas physicians.(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[1], 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.

III.  Conclusion:

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 

 


[1] “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”