by Greg Myers, JD
The Texas Medical Board (TMB) regulates the practice of medicine through power granted by the Texas Medical Practice Act. The goal of the TMB is to protect the public, which it does by issuing medical licenses, pursuing complaints, and disciplining physicians.
The TMB consists of 19 members: nine doctors of medicine; three doctors of osteopathy; and seven public, non-doctor members. Board members are appointed for six-year terms by the governor.
This article will review significant TMB changes and trends over the last 40 years.
In the last 40 years, nothing has probably affected the TMB more than tort reform. In 2003, the Texas legislature passed sweeping tort reform legislation in the form of expert report requirements and damage caps in lawsuits against physicians.
While this legislation reduced the number of malpractice suits against physicians and lowered insurance premiums, it also affected the TMB. The most profound effects — an increase in the number of physicians licensed in Texas and an increase in the number of complaints made to the TMB.
According to the TMB statistics, for fiscal year 2003 (September 1 to August 31), the last full year before tort reform, the number of complaints made to the TMB totaled 4,942. In 2017, that number totaled 8,114, a 64% increase. The number of physicians disciplined by the TMB increased from 277 in 2003 to a high of 534 in 2010 and 2011.
However, with the enactment of a 2011 statute that authorized the TMB to impose a non-disciplinary remedial plan, the number of physicians disciplined by the TMB correspondingly decreased. In 2017, 286 doctors were disciplined, very similar to the 277 disciplinary actions in 2003. This seems to indicate that although more complaints are being filed, violations of the Texas Medical Practice Act or Board Rules that warrant discipline is at the same level.
Of note, 200 remedial plans were issued in 2017, meaning that the TMB is using this non-disciplinary remedy. Thus, while an analysis shows that more complaints are being filed and that the TMB is holding more informal settlement conferences (ISCs), the number of physicians disciplined is relatively equal to the pre-tort reform numbers. The TMB is imposing a remedial plan almost as frequently as a disciplinary order.
The remedial plan is one of the most significant changes seen in the last 40 years. In 2011, the Texas legislature authorized the TMB to offer non-disciplinary remedial plans.
Although the remedial plan is not a panacea, it does have benefits over a disciplinary order. Because the remedial plan is non-disciplinary, the TMB does not have to report it to insurance companies, hospitals, or the National Practitioner Data Bank. The remedial plan is generally limited to less significant patient care issues, is not an option for the disposition of meritorious complaints involving patient death, commission of a felony, inappropriate sexual behavior, or inappropriate financial involvement with a patient.
A remedial plan may be offered to a physician only once in his or her career. Remedial plans are also a matter of public record. Typical provisions of a remedial plan include a small administrative fee and CME requirements.
Because remedial plans are a matter of public record, any such plan becomes part of a physician’s public TMB profile. TMLT has advocated that remedial plans — since they are not a form of discipline — should be confidential and not added to a physician’s TMB profile. I advocated TMLT’s position at the Texas Sunset Review Committee hearings. We also argued that the one remedial plan per career limitation is unnecessary, and we are hopeful that the legislature will revisit this in the future.
The other remedy that is more frequently included in TMB settlement orders is the chart monitor.
When the TMB proposes chart monitoring, it requires an independent physician to review the physician’s medical records to identify potential deficiencies and areas of improvement. Typically, chart monitoring occurs quarterly and runs for one to two years.
The chart monitor is paid by the physician and can be self-perpetrating. The monitor may find issues and deficiencies, which then require a formal response and correction plan, leading to additional cycles. In fact, issues and deficiencies identified by the chart monitor can be the basis for new Board complaint and ISC. Thus, chart monitoring carries potential pitfalls for the physician.
No more anonymous complaints
As of 2011, anonymous complaints are no longer accepted by the TMB. The exception to the confidentiality of the complainant is if the compliant is made by an insurance agent, insurer, pharmaceutical company, or third-party administrator. When the complaint is initiated by one of these individuals or entities, the TMB must identify the complainant within 15 days of the complaint.
Statute of limitations
There is now a seven-year statute of limitations on patient care complaints. The only exception is if the patient is a minor, then the statute of limitations is the later of the date that the minor becomes 21 years of age or the seventh anniversary of the treatment at issue.
As of 2011, the Board has 45 days (rather than 30) to complete its preliminary investigation and to decide to open a formal investigation. The physician is given 28 days (rather than 14) to respond to the complaint. This additional time helps physicians provide a thorough response to the complaint.
Recording of ISCs
ISCs can now be transcribed or recorded with 15 days written request from the physician.
In 2017, the TMB eliminated the regulatory requirement for a “face to face” consultation to initiate a physician-patient relationship and to issue a prescription. Treatment of chronic pain with scheduled drugs through the use of telemedicine medical services is still prohibited. The regulations also require the telemedicine physician to send the patient’s primary care provider a report of the encounter within 72 hours.
Investigation of malpractice claims
The TMB has long had the authority to investigate or discipline physicians for “repeated or recurring meritorious healthcare liability claims.” As a practical matter, the TMB did not regularly enforce this provision in the 1990s. In 2003, as part of tort reform, the legislature mandated that the TMB open an investigation against a physician if three or more lawsuits are filed in a five-year period.
In my experience, although the TMB will open an investigation under these conditions, they are often closed when an adequate response is provided. An adequate response often includes an independent, supportive expert review.
The opioid crisis has been a hot topic for the TMB for several years. Inappropriately prescribing narcotics can subject physicians to disciplinary action, and the TMB is generally unforgiving in these circumstances.
As of September 1, 2010, pain management clinics must be certified and owned by a physician medical director. The TMB also has authority to conduct unannounced inspections of pain management clinics.
Additionally, beginning September 1, 2019, any physician or physician assistant who prescribes opioids, benzodiazepines, barbituates or carisoprodol must first search and review the patient’s prescription history through the Texas Prescription Monitoring Program.
From tort reform to remedial plans, the TMB has evolved to meet its directive of licensing physicians, enforcing rules and regulations, protecting the public, and investigating complaints. And the evolution continues through 2019 and beyond.