Executive Director of the Texas Medical Board Announces Resignation
Donald Patrick, the tough and criticized Executive Director of the Texas Medical Board (TMB) announced yesterday that he will be stepping down in August as he turns 70. Dr. Patrick noticed the Full Board as well as Board Staff during a committee meeting of the Board.
Although not specifically cited, Dr. Patrick’s resignation comes after two legislative hearings wherein he and other members of the Board and Board Staff took heat from state representatives. A search will begin for his replacement; however, if no one is found prior to his departure attorney and Director of Enforcement Mari Robinson will assume his role as interim director.
Dr. Patrick, although harshly criticized by many, has been responsible for changing an agency that was largely condemned for not doing its job. Through aggressive agency restructuring and by taking its charge to heart, the Texas Medical Board under Dr. Patrick’s leadership completely turned itself around and is now viewed as one of the toughest, most scrutinizing Medical Boards in the United States.
Physicians throughout Texas will largely see this as a step in the right direction as the number of frivolous complaints against Texas doctors has increased markedly in the last few years. Public perception of Patrick’s departure may nevertheless force the search in the direction of a similar minded replacement.
Adverse Peer Review & The Texas Medical Board
Oftentimes a physician staring down a licensing action before the Texas Medical Board faces not one, but two threats to their medical practice. If the doctor depends on privileges to practice at the local hospital, the alleged misconduct that sparked the TMB investigation may also lead to an inquiry by the hospital’s peer review committee. This relationship is a two-way street as under state law a peer review committee must report to the TMB the results and circumstances of any peer review that adversely affects a privileged physician. Such a committee must also report when a physician surrenders their privileges in lieu of subjecting themselves to a peer review. See §§ 160.002 and 164.051(a)(7) of the Texas Medical Practice Act. Upon receipt of this information, the Medical Board will start their own investigation which will very likely lead to a licensing action. This is a complex area of the law dealing with issues related to state medical licensing, privileges, hospital by-laws, and confidentiality to name a few. It readily illustrates the house of cards nature of the legal issues surrounding medical practice: remove one card and the rest can quickly come tumbling down.
The Medical Practice Act generally treats peer review records as strictly confidential and only available after the physician waives privilege, however, the Texas Medical Board, along with other state licensing boards and certain government agencies, is legally entitled to the records of a negative / adverse peer review. § 160.007. Yet, the Act still requires the TMB and the State Office of Administrative Hearings to maintain the strict confidentiality of such records. § 160.006(d).
The peer review process itself is governed by each individual hospital’s set of by-laws, a complicated set of rules setting out the grounds for when a physician’s privileges can be suspended or revoked and outlining the procedures which the committee and hospital must follow. Most by-laws provide that an attorney will be on hand to provide the committee with any needed legal advice. Furthermore, another lawyer may be responsible for presenting the case in favor of restricting, terminating or suspending the physician’s privileges or scope of practice. The physician is also allowed to retain their own attorney to represent their interests before the committee.
Because the peer review committee is generally made up of physicians and administrators from the hospital and local area, one of the dangers of this procedure is that it has the potential of being misused by a disgruntled or opportunistic colleague. A few of the reported cases have included particularly egregious situations where rivals have inappropriately used the review as a platform for an inquisition against every real or perceived past mistake of the doctor. Texas statutory and case law rightly recognizes this danger and provides powerful civil penalties against fraudulent peer review in order to protect the physician. As a result, most hospitals are advised to ensure that all or nearly all of their committee membership consists of non-local physicians who do not compete with the physician under review so as to ensure a disinterested process.
The interplay between the Texas Medical Practice Act and a hospital’s by-laws can be complex. On its own a negative / adverse peer review action can trigger the disciplinary process at the Texas Medical Board while much of the conduct that can beget a peer review can also be grounds for an investigation and disciplinary sanction at the TMB. See § 164.051(a)(7). A negative result under either can be ruinous to a physician. Potential consequences include the loss or restriction of the physician’s state medical license, their privilege to practice at a particular medical institution and the initiation of review procedures by provider networks. The likelihood of a positive outcome is best secured at the hands of an attorney with ample background in each environment who is knowledgeable of the likely impact a given result in one will have on the other.
TMB & BNE's Policy on Deferred Disposition Arguably Unlawful
Despite the Texas Code of Criminal Procedure’s clear admonishment that a person’s successfully completed Deferred Disposition (available for Class C offenses in Municipal and Justice Courts only) cannot be used against them, the Texas Board of Nurse Examiners and Texas Medical Board continue to use such a record as a basis for disciplinary investigations and sanctions. I recently represented a client physician who had been given a deferred disposition for Public Intoxication -a Class C misdemeanor. Even though my client successfully completed their deferral requirements, the TMB nevertheless dug this fact up and used it to try and sanction the physician’s license. The Texas Board of Nursing is also guilty in this area. Despite the fact that an attorney / prosecutor and a criminal judge decide that a deferred disposition is warranted, licensing boards and administrative agencies routinely attempt to impose discipline anyway. Unfortunately, all too often unrepresented applicants and lawyers practicing outside of their scope fail to realize the remedies available to them.
Besides being bad policy and simply unfair, the practice is also arguably illegal under the Code of Criminal Procedure. The Code specifically states that once the complaint is dismissed upon the person’s successful completion of deferred disposition, “there is no final conviction and the complaint may not be used against the person for any reason.” Texas Code of Criminal Procedure § 45.051(e). Yet, the Medical Board and the Texas Board of Nursing frequently use such criminal history as the foundation of investigations, licensure actions and application denials. The statute’s prohibition against the use of the disposition goes to the very reason for having deferred disposition in the first place. It is designed to give the minor criminal offender a second chance at a clean slate. The policies of the Texas Medical Board and the Board of Nurse Examiners undermine this purpose and needlessly burden their license and discipline divisions with minor offenders that pose no danger to Texas patients. Ultimately when this predicament the licensee should seek the remedy of expunction which is availalable in almost all cases where a defferred disposition has been succesfully completed.
AAPS Files Federal Lawsuit Against the Texas Medical Board
In late December of last year, the Association of American Physicians and Surgeons filed a federal lawsuit against the Texas Medical Board seeking various injunctive and declaratory relief against what it characterizes as the abusive practices of the Board. The AAPS complaint contains numerous allegations running the gamut from Board manipulation of the anonymous complaint process, a conflict of interest by the former head of the disciplinary committee, an ongoing policy of arbitrarily rejecting the recommendations of Administrative Law Judges, breaches of confidentiality during the disciplinary review process, and Board retaliation against physician criticism.
In a press release, Executive Director of the AAPS, Jane M. Orient stated that the AAPS felt compelled to file the lawsuit on behalf of its Texas members given that individual physicians were too afraid of possible TMB retaliation to take action on their own. The AAPS identifies itself as a non-profit entity with thousands of members throughout the country, including Texas, dedicated to preserving the traditional doctor-patient relationship and effective medicine. One of the organization’s overriding purposes is identified in their complaint as the protection of its members “from arbitrary and unlawful government action” such as that alleged to have been perpetrated by the TMB.
A central allegation of the complaint claims that Texas Medical Board President Roberta Kalafut actively manipulated the anonymous complaint process to harass and discipline physicians, including some of her Abilene competitors. According to the pleadings, Mrs. Kalafut had her husband file the anonymous complaints which she then ensured were actively pursued by the Board. Mrs. Kalafut has responded to the press by stating that this claim is completely untrue, noting that none of the anonymous complaints which led to disciplinary action came from Abilene. The AAPS complaint also targets outside abuse of the anonymous complaint process. It alleges that a New York insurance company arranged to have an anonymous complaint filed against a Texas doctor who had treated five of its insured members, who were all pleased with their treatment, so as to avoid paying their costs. The suit seeks an injunction against future receipt of anonymous complaints and a declaratory judgment that such complaints violate a physician’s due process rights under color of state law.
The second main allegation involves Keith Miller’s tenure as Chairman of the TMB’s Disciplinary Process Review Committee, a topic I have previously blogged about. Mr. Miller resigned in the fall of last year amid criticism of his continued position as disciplinary chairman while he simultaneously served as a plaintiff’s expert witness in scores of medical malpractice cases throughout Texas. The complaint points out this conflict of interest and Board officials’, such as President Kalafut, admitted awareness of it as reason for the federal court to compel the reopening of the disciplinary cases heard by Miller.
The final primary allegation of the AAPS involves the TMB’s arbitrary rejection of negative administrative rulings. The complaint itself points out a case where the TMB sought a disciplinary sanction against a doctor’s license who had requested, as per his hospital’s standard rate, that a patient pay $81 dollars for a copy of her medical records. In response to the patient’s complaint the Board’s disciplinary committee, headed by Keith Miller, demanded that the doctor pay a $1000 fine as part of a sanction that would be reported to the National Practitioner’s Databank. After the doctor appealed the case and an Administrative Law Judge ruled unequivocally that the TMB had no legal authority on which to take such an action, the Board simply reinstated its findings and doubled the fine. The suit seeks an injunction against any further arbitrary rejections of administrative rulings by the TMB and a declaratory judgment that such rejections violate both due process and equal protection.
Finally, as additional matters the complaint alleges that physician’s inability to speak out against the TMB and its policies for fear of retaliation, amounts to a denial of free speech. In support of this claim, the complaint points to several instances where Board members have allegedly publicly defamed doctors critical of the TMB. The suit also attacks the Board for allegedly giving confidential records regarding a physician to a hospital with which the doctor was involved in a private dispute.
Continue Reading...TMB Faces Criticism Before House Appropriations Committe
The Texas Medical Board came under fire before the House Appropriations Committee on Tuesday for what its critics identify as the Board’s overemphasis on petty physician malfeasance at the expense of protecting the public from bad doctors. Representatives like Fred Brown, asked Mari Robinson and Dr. Roberta Kalafut to respond to physician charges that they spend too much time and money on disciplining doctors guilty of such minor violations as over-billing their patients by $65.00. Opponents of the Board’s practices note that the resulting investigation and disciplinary process associated with even such a small violation can result in large legal fees and other unwieldy burdens on the physician.
Other committee members expressed concern with the TMB’s practice of receiving and pursuing anonymous complaints. Critics have pointed out the Board’s difficulty in investigating such complaints and its clear vulnerability to abuse by the anonymous complainants. The recent resignation of Dr. Keith Miller provided further fodder for the hearing. Dr. Miller resigned from the Board’s disciplinary committee in September after a new law barred members from concurrently serving on the Board and as an expert in medical malpractice suits. Before the passage of the new rule, members of the public had decried the clear conflict of interest presented by Dr. Miller’s employ as a plaintiff’s expert in Texas.
In response to the criticism, the TMB’s Director of Enforcement, Mari Robinson, stated that the Board was considering adopting a rule that would streamline the process for minor violations. Such a rule, Ms. Robinson stated, could aim to achieve resolution of such cases within thirty to sixty days.
Dr. Kalafut, President of the Board, acknowledged that while 99 percent of Texas doctors have never faced a disciplinary action, the number of complaints received in recent years has undergone substantial growth. While the TMB takes public complaints seriously, Dr. Kalafut underscored that as a state agency the Medical Board must follow the current law on what constitutes a violation and how the disciplinary process can proceed.
Member of Texas Medical Board Resigns Amid Flood of Criticism
The resignation last week of Keith Miller, MD, a 2003 Perry appointee to the Texas Medical Board, has sparked an outpouring of relief and further recriminations from the beleaguered doctor’s many critics.[i] A longtime member of the TMB’s disciplinary committee, Dr. Miller claims his resignation is due to the enactment of a rule law barring Board members from serving as expert witnesses in medical malpractice cases. Dr. Miller, who has a long history of serving as a plaintiff’s expert in such cases, believes his resignation was necessary to prevent any appearance of a conflict of interest.[ii]
Opponents of Dr. Miller have alleged that he has exploited his position on the Enforcement Committee, which has the power to revoke and restrict a physician’s state medical license, in his role as an expert witness.[iii] They claim his involvement in disciplining doctor’s who have violated the Medical Practice Act, including standard of care allegations, at the same time that he has maintained close connections with the plaintiff’s bar and served as an expert, has placed a cloud of impropriety on the Board. In fact opponents could point to his resignation in response to a new Board Rule addressed to precisely this issue as vindication of this claim.
However, critics of Dr. Miller’s tenure have further accused him of improperly using his position on the TMB to transform the Enforcement Committee into a virtual arm of the insurance industry.[iv] Board Rules allow anonymous complaints to be made to the TMB which can then serve as the basis of a disciplinary action. Aggrieved physicians have alleged that insurance providers who are dissatisfied with the level of care provided to a covered patient have used such anonymous complaints as a way to punish doctors and maintain low cost levels. Such physicians point out that it is not actually the standard of care which motivates these anonymous complaints but rather a doctor’s decision to supply care whose cost exceeds insurance company guidelines and therefore hurt profits. These maligned anonymous complaints originate from the insurance providers and not the actual patients. In fact the patients whose care is supposedly at issue are frequently surprised when notified of the pending disciplinary action and often testify in favor of their doctor.
Continue Reading...Investigatory Gymnastics by the TMB: Quality of Care & Documentation
Many doctors consider the possibility of a disciplinary action based on inadequate or improperly kept medical records to be remote. Yet, the Texas Medical Board will oftentimes use a complaint based on other grounds, such as an alleged standard / quality of care violation, as an opportunity to thoroughly investigate a licensee’s compliance with Board Rules concerning the maintenance of medical records. Even if the original complaint is found baseless, the TMB has the right to pursue disciplinary sanctions for any other violations found during their investigation, and in a quality of care case this investigation will certainly include a thorough review of medical records.
Under the Texas Administrative Code, the Texas Medical Board has adopted official agency rules regarding the proper maintenance of medical records. For example, § 165.1 contains numerous mandatory guidelines concerning the maintenance of “adequate medical records.” Title 22 Texas Administrative Code § 165.1. Moreover, pursuant to the Medical Practice Act, the TMB has the same authority to pursue the full range of disciplinary sanctions for non-compliance with this provision as it does for any other Rule. Texas Occupations Code § 164.051(a)(3).
Continue Reading...Research is Fundamental
Recently controversy erupted when an investigative reporter from CBS 11 discovered that a two-time Physician of the Day at the Texas Legislature, Dr. Nilon Tallant, has a criminal history. Run by the Texas Academy of Family Physicians, the Physician of the Day program consists of approximately ninety doctors who volunteer to treat patients on Capitol Grounds. Volunteers, like Dr. Tallant, are typically then introduced before the Legislature and receive official recognition for the day. An embarrassed Academy and Legislature are now trying to shift responsibility for their own oversight onto the Texas Medical Board.
Critics of the Board blame their ignorance of the criminal conviction on the lack of information on the TMB’s website regarding Dr. Tallant’s “self-reported” criminal history contained on his online physician profile. While true, this contention ignores the fact that there is ample information on Dr. Tallant’s conviction and Board disciplinary history readily available on the TMB and State Office of Administrative Hearings websites. The same online profile with a blank space under the section for self-reported criminal history notes that Dr. Tallant’s medical license was revoked from 1996 to 2001. Anyone performing a background check would presumably be interested in knowing the basis of the revocation. In fact, on the same page the profile contains a link to Dr. Tallant’s complete disciplinary history before the TMB including the original 1996 order expressly revoking his medical license based in part on his plea of guilty to criminal charges. At least two other modified orders from 2000 and 2001 similarly note his conviction.
Continue Reading...What is a Confidential Rehabilitation Order?
In lieu of public discipline, the Texas Medical Board has the option of offering a Confidential Rehabilitation Order (Private Order) to a physician who suffers from certain drug or alcohol related problems and/or mental health problems or disorders. Outlined under Title 22, Section 180.1 of the Texas Administrative Code, the purpose of an order is to create an incentive for a licensee or applicant to self-report and seek early assistance / treatment, thereby avoiding any harm to the public due to the deterioration of the physician’s ability to practice medicine. Successful completion of a Confidential Rehabilitation Order serves as an alternative to a public disciplinary order which must be reported to the National Practitioner Databank and can have adverse effects on a medical doctor’s ability to practice. A Private Order is Non-Public so there is no way the public, prospective employer’s or other health care entities should know that the physician’s medical license is subject to a Board Order.
The regulatory guidelines regarding who is eligible and under what circumstances a Confidential Rehabilitation Order can be issued are complex. An experienced attorney can help guide a physician through this process, accumulate supporting documentation, and ensure the licensee does not make a decision that will make them ineligible for a private order.
The issuance of a Confidential Rehabilitation Order is at the sole discretion of the Board. Under the Board’s rules, Staff and the Board may consider issuing a private order when:
- the licensee or applicant suffers from an addiction caused by medical treatment;
- the licensee or applicant self-reports intemperate use of drugs or alcohol and has not been the subject of a previous Board order related to substance abuse;
- a court has determined that the licensee or applicant is of an unsound mind;
- the licensee has a physical or mental impairment as determined by an examination; or
- a licensee or applicant admits to suffering from an illness or a physical or mental condition that limits or prevents the person’s practice of medicine with reasonable skill and safety.
DWI: Medical Licenses & Physician Discipline
The Texas Medical Board does not have the power to discipline a physician’s medical license / registration for an isolated arrest and subsequent conviction for driving while intoxicated. However, Board Staff will open an investigation into all physicians who have been arrested for DWI to determine if the physician suffers from a medical or physical condition which may impair their ability to practice or during the commission of the DWI they committed unprofessional conduct.
The Texas Medical Practice Act (Texas Occupations Code § 164.051) and the Medical Board’s Rules found in the Texas Administrative Code (Title 22, Part 9, Rule 190.8) are the guiding statutory for the Board’s ability to investigate and discipline a physician’s license for the offense of DWI. Per the Medical Practice Act the Board lacks the jurisdiction to impose discipline for a DWI offense that “stands alone” as it is neither a felony nor a crime of moral turpitude (Tex. Occ. Code § 164.051(a)(2). However, if an investigation yields that a physician was on call, subject to duty or scheduled to work soon after the time of arrest the following potential violations will be explored:
- implications of unprofessional conduct (Prohibited Practices § 164.052(5)
- the possibility of the physician’s use of alcohol or drugs in an intemperate manner that in the Board’s opinion could endanger a patient’s life ( Prohibited Practice § 164.052(4)
What is Ethylglucuronide -EtG Testing?
Ethyl Glucuronide (EtG) is a metabolite created by the body following alcohol consumption. Testing for this metabolite, typically via a urine sample, has become increasingly prevalent in the United States following its initial approval and use in Europe especially by agencies concerned with monitoring an individual for any relapse or return to active drinking. Many favor EtG sampling because it is a “direct” test for alcohol consumption in contrast to older, more traditional tests like Gamma Glutamyl Transferase or Carbohydrate-Deficient Transferrin which look for indirect signs of alcohol use such as liver damage. Further, while older tests generally only become positive following heavy alcohol use, EtG can be present in the urine after only a single drink. Moreover, EtG remains in the body and is detectable in urine three to five days after consumption
Unfortunately, EtG testing has several serious short-comings that limit its viability as an stand-alone objective marker of recent alcohol consumption and relapse. In the area of medical testing, a test is characterized by two qualities: sensitivity and specificity. Sensitivity measures the ability of the test to correctly identify those individuals who do have the condition of interest, here relapse, while specificity measures the ability of the test to correctly identify those persons who do not have the condition of interest. EtG testing has a high sensitivity, that is it has a high probability of correctly identifying as positive an individual who has recently relapsed. However, it also has a low specificity, that is it has a high probability of showing as positive a person who has not recently consumed alcoholic beverages. For example, research has shown that use of everyday items such as bug spray, mouth wash, various over-the-counter medicines, and hand sanitizer can produce positive results. Additionally, without further research, testing facilities have been unable to arrive at a consensus on the level of EtG that should be considered positive for a relapse. The high level of false positives seriously undercuts its status as a viable test for relapse and can easily lend itself to abuse by monitoring agencies such as the Texas Medical Board or the Texas Board of Nursing (Formerly known as the Texas Board of Nurse Examiners).
Continue Reading...Timely License Renewal Under the Texas Administrative Procedure Act
The Texas Administrative Procedure Act (APA) offers a ready incentive for a licensee such as a doctor or nurse to seek prompt renewal of their license if they face or expect to face a disciplinary action before their respective state licensing board. Chapter 2001.054 of the Texas Government Code (The Administrative Procedure Act) provides a special rule when the professional’s license renewal is contested by the applicable administrative agency and such agency is required to provide timely notice and an opportunity to be heard, two conditions that apply to virtually every disciplinary action. When such a licensee applies for renewal, their existing license automatically remains in effect until their application has been finally determined by the state agency. Further, if the state agency decides to deny or limit the terms of the new license, the professional’s existing license does not expire until the last day for appealing the agency order or other date set by the reviewing court, whichever is later.
Thus a doctor who expects the Texas Medical Board to deny the renewal of their professional license or to take other disciplinary action against them should timely apply as they will still retain and be able to practice under their existing license. The same situation applies to a nurse facing disciplinary action by the Texas Board of Nurse Examiners, an optometrist in front of the Texas Optometry Board, a dentist before the Texas State Board of Dental Examiners, and other licensed medical and non-medical professionals. Continue Reading...Physician in Training Permit Applications: A Guide to the Basics
The Texas Medical Board issues Physician-in-Training permits (PIT Permits) pursuant to Texas Medical Practice Act section 155.105 and Texas Medical Board rules found in the Texas Administrative Code under 22 TAC Section 9 Chapter 163. The PIT permit is required for graduates of a United States or Foreign Medical School who wish to pursue a residency or post-graduate fellowship in Texas who do not possess a Texas Medical License due to ineligibility or a pending application. Although the application for a Physician-in-Training permit is not as cumbersome, tedious or labor intensive as a full physician registration, medical doctors often find themselves needing to go before the Texas Medical Board’s Licensure Committee to explain their good professional character or clinical competence due to:
- Academic difficulties in medical school including poor performance or discipline as evidenced by the applicant’s academic transcript from the third or fourth year of medical school;
- Problems in a post-graduate residency program including failing grades, poor performance, or discipline by the medical faculty;
- Physician discipline from a medical staff, denial by a credentialing committee or other discipline by another state licensing board;
- Criminal convictions involving dishonesty, moral turpitude, controlled substances or alcohol;
- Mental illness which rises to the level of requiring the Applicant to demonstrate their ability to practice medicine with reasonable skill and safety;
- Falsification of information on the Physician-in Training application;
- Malpractice claims, lawsuits and judgments
- Perceived statutory ineligibility.
Temporary Suspension Hearings by the TMB: An Uphill Climb
The Texas Medical Board (TMB) pursuant to the Medical Practice Act section 164.059 has the authority to temporarily suspend a physician's license to practice medicine with or without notice if the physician poses a real and imminent threat to the public through his/her continuation in practice. Although the evidentiary threshold is more stringent than in disciplinary matters, the panel who decides the physician's fate is comprised of three members of the Texas Medical Board and not an independent and neutral Administrative Law Judge. Needless to say, Staff of the Board rarely loses when it decides to remove a physician from practice through the utilization of its emergency suspension powers. Generally, the Board will invoke this authority for the following types of violations and acts:
- Excessive or intemperate use of drugs or alcohol that in the Board's opinion could endanger a patient's life;
- Non-Therapeutic precribing practices;
- Untreated mental illness;
- Repeated standard of care violations;
- Repeated and dramatic boundary violations.
What is not apparent to most physicians who are faced with this process or loss, are the ramifications which follow the entry of an order temporarily removing the physician from practice. When the hearing is with notice or a noticed hearing is waived in an effort to remedy the problem and settle the case for an Agreed Disciplinary Order at a later date the following consequences will ensue:
- The return of the physician's Drug Enforcement Adminstration & Department of Public Safety Controlled Substances Registrations and the potential long term loss of such privileges;
- The suspension of the doctor's hospital privileges at whatever hospital he/she may be a member of the medical staff;
- The disqualification from the individuals Certifying Medical Specialty Board -Board Certification;
- The termination and exclusion from participation as a preferred provider by insurance companies such as Blue Cross Blue Shield & Aetna;
- Exclusion by the Office of the Inspector General from particpating in Federal reimbursement programs such as Medicare & Medicaid;
- Removal from the Approved Doctor's List of the Department of Insurance's Workers Compensation Commission;
- A swarm of negative press as the TMB issues press releases to the physician's local paper and television networks and such stories often make front page headlines;
- The filing of new and otherwise unremarkeable law suits as a result of the now publicly disclosed negative information regarding the physician's character or practice;
- A wave of new Complaints & Investigations to and by the TMB as patients who were otherwise unknowing or on the fence now feel justified in coming forward.
