TMB rules you may not know but should, Part 1

by Dan Ballard, JD and Stacey Simmons, JD

Texas Medical Board rules — which regulate the activities of Texas physicians — consist of 156,165 words on 244 single-spaced pages. While most physicians are familiar with the basic concepts of these regulations, there are several specific rules that seem to give physicians the most trouble.

This article will discuss these more challenging TMB rules in an effort to enhance knowledge of the TMB, reduce exposure to disciplinary actions by the Board, and assist in the physician's defense should a TMB action occur. Part 1 will address physician advertising, actions to take when leaving a medical practice, documentation of patient encounters, and documentation of prescriptions.

1. PHYSICIAN ADVERTISING 

The TMB has established rules for use of the term "board certified" in advertising. "A physician is authorized to use the term 'board certified' in any advertising for his or her practice only if the specialty board that conferred the certification and the certifying organization is a member board of the American Board of Medical Specialties, or the Bureau of Osteopathic Specialists, or is the American Board of Oral and Maxillofacial Surgery." Physicians may advertise certification by other types of organizations only if the organization meets certain requirements, as specified in TMB advertising rules. (1)

These rules also expressly prohibit use of the terms "board eligible" or "board qualified" in physician advertising. The board has determined that these terms are misleading and cause confusion about a physician's board certification status. (1)

TMB rules also expressly prohibit advertising that is "in any way false, deceptive, or misleading." Any statement made about the physician's professional experience, competence, or quality should only be made if it can be supported by facts. (1)

For example, if a physician were to say in an ad that he was "among the most highly qualified neurosurgeons in the southwest," then he must have objective data to support the comparison of his qualifications to the other neurosurgeons in the southwest. Because it is unlikely that the neurosurgeon has data to support this statement, its use should be avoided. (1)

Do not advertise the sale of products — any products, according to TMB rule 164.6(c). "Advertising or promotion of goods or products from which the physician receives direct remuneration or incentives is prohibited." This prohibition appears to encompass nutritional supplements, cosmetics, eyeglasses, hearing aids, and other products commonly sold at physicians' offices. It is unclear if the rule is intended to include products that must be injected or surgically installed, such as Botox or implantable medical devices.

Further, we interpret the rule to include instances in which the physician's website advertises a product that is not for sale by the physician, but his web site links to third-party web site for purchase of the product. If use of the link by the patient allows the physician to be paid a fee by the third-party seller, then the physician is receiving direct remuneration for sale of the product. (1)

Physicians planning to advertise — whether it's through a web site, yellow-page ad, or television commercial — should become familiar with the TMB's rules for physician advertising.

Editor's note:

On May 5, 2011 — as this article was being published — the TMB changed the language of the advertising rule. The rule now states: "(c) Advertising/Promotion of Goods or Products. Advertising or promotion of goods or products that a licensee sells outside the normal course of business from which the physician receives direct remuneration or incentives is prohibited." This appears to be a substantial reduction of the previous prohibition regarding the advertising of products for sale. We do not yet have clarification of exactly what this is intended to mean.

Additionally, we have been in contact with the TMB regarding the new rule and we believe that it contains an error that the TMB will remedy in the upcoming months. The error pertains to the new subsection (d) of rule 164.6 that states: "(d) This section applies only to licensees who bill for services provided via the Internet."

This new subsection could be interpreted to mean that the newly modified advertising rule will apply only if you bill for services provided via the Internet. We have information from the TMB that they did not intend to limit the advertising prohibition in this way. We believe they will remedy this error. The outcome may be that all physicians will be limited to advertising products that they sell in the normal course of business, and no physician may advertise products that they sell outside the normal course of business.

2. LEAVING A MEDICAL PRACTICE

The board rules found in section 165 are lengthy and complex. Among other issues, this rule describes how physicians should notify patients that they are leaving their current practice site. The most interesting sentence in this rule is found in Section 165.5(e), which makes it a criminal violation to violate any part of this rule. Hard to believe, but true.

This rule specifies what actions must be taken when a physician leaves his or her current practice. The departing physician must do three things: 1) send letters to all patients seen in the last two years notifying them of the change in the practice; 2) post a prominent notice in the office for 30 days before the change; and 3) publish a notice in the largest local newspaper. The departing physician's failure to comply with this rule is often brought to the attention of the Board by a patient who is contacting the board because the physician's former practice will not tell the patient where to find the physician. Any time physicians begin contemplating a move or retirement, it may be helpful to begin gathering the names and addresses of active patients as they are seen in the office.

Interestingly, there are only two requirements for the remaining members of the group. They must stay out of the way of the departing physician and give the departing physician access to the information he or she needs to provide proper notice to patients. (2)

3. DOCUMENTATION

Board rule 165 also requires proper charting of each "patient encounter." Proper charting includes a SOAP note or its equivalent, the date, and the legible identity of the physician. It is important to note that the rule does not just require the identity of the physician, but specifically requires the "legible identity."

What constitutes a patient encounter? If a physician takes a phone call from the patient of his or her call partner, is that a patient encounter that must be charted? How is the encounter charted

In general, it is a patient encounter if the physician received medical information from the person and gave medical advice in return. Even if the advice was simply to go to the emergency department, that is a patient encounter. Brief phone consultations are also considered patient encounters that need to be charted. (2)

A good solution for charting these encounters — even if the physician was covering call for another physician — is to have a designated voicemail box that the physician can call to leave a dictated message. The dictated message can later be turned into a chart note and faxed or emailed to the patient's physician. This simple system satisfies the charting rule while promoting continuity of care.

Of special note is the potential misuse of electronic medical records or of any other type of charting system that facilitates the use of "default" text in a patient's chart. "Default text" is any pre-inserted text that will remain in the chart unless changed by the user. Some EMRs use language describing "normal findings" in the review of systems. If this default language is not altered, it will remain in the chart indicating that the physician completed a review of systems. If this review of systems was not done or if the findings were not normal and the EMR defaults to "normal," the record is inaccurate.

During the investigation of a medical liability claim or a board complaint, it is often apparent that these default statements are not true regarding the patient in question, implying that the examination of the patient was incomplete or the charting was sloppy.

4. DOCUMENTING PRESCRIPTIONS

Medical Board rule 165.1 requires that the chart should include documentation of prescriptions (including samples) specifying the amount, frequency, number of refills, and dosage. While it may seem obvious to include these details in the chart, it is often the case that the total amount of medication prescribed cannot be determined from the medical record. In most cases when we are defending a physician, we must obtain the pharmacy records to determine dosage, frequency, and number of refills for a medication.

The lack of information in the chart becomes a problem most often when there are allegations of failure to adequately control or monitor medications. When members of the TMB review the chart and cannot determine the number of pills prescribed, they conclude that the physician cannot determine this either. Along with properly charting that drug samples were given to the patient, physicians should maintain records of samples obtained from drug companies for two years. (2)

"Best practices" in charting prescriptions require the physician to keep a medication list for each patient that is updated at each visit. This list should include all medications the patient reports taking. If this information is not easily accessible, adverse drug reactions can occur.

In regard to Schedule II drug prescriptions, avoid "post-dating" prescriptions. A "post-dated" prescription for any controlled substance is illegal. The proper way to write a controlled substance prescription to be filled at a later date is to write today's date, and then also write the future date along with the words "earliest fill date." The new Official Prescription Forms from the Department of Public Safety prompt the physician to write both dates. It is legal to write a 90-day prescription for a Schedule II drug on a single prescription sheet if the physician believes that 90-day prescribing is appropriate. However, pre-signing a Schedule II prescription pad is illegal. The signature must be written at the same time or after the remainder of the prescription is written. (3)

The TMB also prohibits the prescription of controlled substances for more than 72 hours to oneself, family members, or others in which there is a close personal relationship. This rule covers prescriptions for medications such as zolpidem, amphetamine and dextroamphetamine, diazepam, alprazolam, and hydrocodone. (4)

CONCLUSION

With its mission to protect the public and ensure a sufficiently trained physician workforce, the TMB is poised to enforce all rules for which it has responsibility. The practice of medicine is highly regulated and each licensed physician needs to be aware of current TMB guidelines and rules.

Part 2 of this article will address office-based anesthesia rules, standing delegation rules, and physician web site rules. It will be published in the May-June 2011 edition of the Reporter.

SOURCES

1. Texas Medical Board. Board Rules. Texas Administrative Code, Title 22, Part 9, Chapter 164, section 164.1-164.6. Available at http://www.tmb.state.tx.us/rules/rules/bdrules_toc.php. Accessed March 11, 2011.

2. Texas Medical Board. Board Rules. Texas Administrative Code, Title 22, Part 9, Chapter 165, section 165.1-165.6 Available at http://www.tmb.state.tx.us/rules/rules/bdrules_toc.php. Accessed March 11, 2011.

3. Health and Safety Code. Section 481.075 (1) (2). Available at http://www.statutes.legis.state.tx.us/docs/hs/htm/hs.481.htm. Accessed March 17, 2011.

4. Texas Medical Board. Board Rules. Texas Administrative Code, Title 22, Part 9, Chapter 190, section 190.8(1)(M)(ii). Available at http://www.tmb.state.tx.us/rules/rules/bdrules_toc.php. Accessed March 11, 2011.

Stacey Simmons and Dan Ballard are partners with Ballard & Simmons, LLP. Stacey Simmons can be reached at staceysimmons@ballardfirm.com. Dan Ballard can be reached at danballard@ballardfirm.com.