Legislative Update

1. Legislative Update Lee Spangler, JD Vice President, Medical Economics

2. Physician Issues – TMB • Texas Medical Board Complaint Process • Anyone (including – expressly – insurance companies) may register a complaint against a physician. • The most frequent complaints: • “non-therapeutic prescribing of a drug or treatment, professional incompetence, unprofessional conduct which may endanger the public, and inability to practice medicine by reason of mental or physical impairment.”

3. Physician Issues – TMB • Texas Medical Board Complaint Process • Complaints filed with the Board were entirely confidential. The accused licensee was NOT informed of the identity of the person who filed the complaint. • The allegations are reviewed by TMB investigators and if sufficient evidence is obtained through the investigation to suggest a violation has occurred the physician is notified (otherwise the complaint is dismissed). This must be completed within 30 days. • An “informal settlement conference/show compliance” hearing is held with a Board member and a district review committee member. This is confidential and is conducted without a reporter or recording. • The physician is given 30 days notice of ISCs and 5 business days to provide rebuttal information to the TMB.

4. Physician Issues – TMB • Texas Medical Board Complaint Process • At the ISC – the complaint can be dismissed or an offer of settlement made. If no agreement can be made, the case may be referred to the State Office of Administrative Hearings (SOAH). • A formal hearing is held (typically after mediation) – the ALJ issues findings of fact, conclusions of law and often proposed discipline. The board would then “determine the charges on the merits.” The TAPA expressly permits an agency to modify any or all ALJ determinations. • The licensee could then take his issues to a district court for review.

5. Physician Issues – TMB • HB 680 – Relating to complaints filed with the TMB • Limitations Period for Complaints • TMB may not act on a complaint involving care provided more than 7 years prior to the date the complaint was received – unless the care was provided to a minor. • Minors – may not act on a complaint received after the date the minor turns 21 or 7 years from the anniversary date of the care that is the basis of the complaint.

6. Physician Issues – TMB • HB 680 – Relating to complaints filed with the TMB • The limitations period applies only to complaints filed after the effective date of the Act – September 1, 2011. • Anonymous Complaints • An anonymous complaint is a complaint that lacks “sufficient information to identify the source or the name of the person who filed the complaint.” • “The board may not accept anonymous complaints.”

7. Physician Issues – TMB • Confidentiality of Complaints • Previously – in all circumstances - the accused licensee was unable to obtain information regarding the identity of the person who made a complaint. • Accuser in administrative proceeding is the State of Texas/Texas Medical Board. • A complaint filed by an insurance agent, insurer, pharmaceutical company, or third-party administrator must include the name and address of the agent or company who filed the complaint. • The physician is notified of the identity of those persons “not later than the 15th day after the filing of the complaint with the board … unless the notice would jeopardize an investigation.”

8. Physician Issues – TMB • Timelines Modified. • The period to determine whether the allegations are sufficient to warrant an investigation is extended to 45 days from 30. • Physicians are now provided 45 days notice of an informal settlement conference and have 15 days to provide rebuttal information to the TMB. • Informal Settlement Conference/Show Compliance • “On request by a physician under review, the board shall make a recording of the informal settlement conference proceeding.” The recording is part of the investigative file (therefore not subject to open records) and may not be released unless authorized by the subtitle (such as aiding law enforcement). The physician may be charged a fee for the recording.

9. Physician Issues – TMB • Disposition of Complaints • Notwithstanding the TAPA – the TMB must now dispose of a contested case based on the ALJ findings of fact and conclusions of law. • The TMB may seek judicial review of the ALJ findings and conclusions. • The TMB still have the final say on the sanction that is imposed on a licensee. • This provision applies to all written findings and conclusions of law on or after Sept 1, 2011.

10. Physician Issues – TMB • Remedial Plans versus Disciplinary Orders • Senate Bill 227 – In addition to the disciplinary sanctions available to the TMB – now they may require a remedial plan to resolve a complaint. • A remedial plan may not be utilized to resolve complaints involving: • A patient death; • The commission of a felony; or • A matter in which the physician engaged in inappropriate sexual behavior or contact with a patient OR became financially or personally involved with a patient in an “inappropriate manner.” • Business partners? Discipline for receiving computer services as payment in-kind.

11. Physician Issues – TMB • Remedial Plans versus Disciplinary Orders • A remedial plan also may not be utilized to resolve a complaint “in which the appropriate resolution may involve a restriction on the manner in which a license holder practices medicine.” • This is for monitors and prohibitions on performing certain procedures. • One time opportunity • If the licensee has previously entered into a remedial plan with the board – the board may not issue another remedial plan to resolve another complaint or dispute. • VERY IMPORTANT – many here know the board will often “divide” investigations or otherwise may have multiple investigations of a licensee ongoing. You should become aware of any other board activity that may occurring.

12. Physician Issues – TMB • Mandatory Revocation • Current authority already existed for incarceration (for example). SB 263 mandates revocation of a physician’s license when: • A physician is placed on deferred adjudication community supervision for: • Sexual assault of a child; • Aggravated sexual assault of a child; or • Indecency with a child. • The TMB may also temporarily suspend physicians who are arrested for these offenses upon proof the person arrested is a licensee under the MPA. Further probation of a license is now inappropriate for convictions of the offenses above.

13. Nurses – Reporting Protections • Winkler County Nurses • Nurses reported local physician to TMB for unsafe practice. • The nurses were criminally charged for the report – and were found NOT GUILTY. • However, the physician who was the subject of the complaint, the local Sheriff, Winkler County Attorney, and the Winkler County Memorial Hospital Administrator all criminally charged in connection to their activities. • The administrator plead guilty to a misdemeanor, the sheriff was convicted, and the county attorney is to stand trial.

14. Nurses – Reporting Protections • New Protection – Directly Related to the Winkler County Cases. • SB 192 – Provides that a person licensed under the Nursing Practice Act, who in good faith makes a report is immune from civil and criminal liability that may result from making the report and may not suffer from retaliation as a result of the report. • These protections also apply to those who advise nurses of their right or obligation to report. • Good Faith means: a report that the person believed was required or authorized and that there is a reasonable factual or legal basis for that belief.

15. Informed Consent • SB 1009 – Relating to Informed Consent before certain postmortem examinations or autopsies. Chapter 49 – Code of Criminal Procedure is amended. • A physician may NOT perform a postmortem examination OR autopsy unless the physician receives WRITTEN informed consent from a person authorized to make such decisions without objection. • Who may make these decisions – in order of priority: • Spouse of decedent; • The person acting as guardian or the executor/administrator of estate; • Adult Children; • Parents of decedent; and • Adult siblings.

16. Informed Consent • If there are multiple members of a particular class for consent – any single member may consent UNLESS another member of the class files an objection with the physician, medical examiner, justice of the peace, or county judge. • I don’t know how you “file” objections with physicians. • If there is an objection – you need consent by a majority of class members who are “reasonably available.” • The commissioner of state health services “in consultation with the” TMB will adopt a standard consent form.

17. Informed Consent • Wait – There is MORE • A person who is authorized to consent “may request a physician who is not affiliated with the hospital or other institution” where the deceased person died to “perform THE postmortem examination or autopsy at another hospital or institution; or review the postmortem examination or autopsy conducted by a physician affiliated with the hospital…” (emphasis mine). • All additional costs are incurred at the requesting person’s expense. • Art. 49.13 – the previous provision for consent for autopsies is repealed. • The definition of autopsy in 49.01 includes “post mortem examinations.”

18. Informed Consent • HB 1128 – Consent for Treatment of Certain Inmates • A surrogate decision-maker (as traditionally defined) may consent to medical treatment on behalf of a patient who is an adult inmate of a county or municipal jail. • Expires on the earlier of the 120th day after the date the person agrees to act as an adult surrogate or the date the inmate is released from jail. • After that period only the patient or appointed guardian may consent. • However, the authority of a surrogate does not extend to: psychotropic medication; involuntary inpatient mental health services; or psychiatric services calculated to restore competency to stand trial.

19. Informed Consent • NOT a result of the Session – Important Nonetheless. • Texas Medical Disclosure Panel • Amending 25 Texas Admin. Code Chapter 601. • New SEPARATE Consent form for Anesthesia and/or Perioperative Pain Management (Analgesia). This is without regard to the place of service. • Failure to use the new form will cause a rebuttable presumption that consent for anesthesia was NOT obtained. • Comment Period Closed - Medical Disclosure Panel form adopted and effective January 16th, 2012.

20. New Business Organization Authorized • HB 2098 - Physicians and Physician Assistants may form a corporation/partnership to perform professional services. • The Physician Assistant may NOT be an officer of the corporation. • The Physician Assistant May NOT employ a physician (nor contract with a physician) to be his supervisor. • A Physician Assistant or combination of physician assistants may only have a minority interest – and the interest must not be equal or exceed the interest of any individual physician. • The Physician Assistant not interfere with the practice of medicine by a physician owner.

21. New Business Organization Authorized • Physicians and Physician Assistants may form a corporation/partnership to perform professional services. • A physician assistant may not be a general partner. • A PA who jointly owns an entity with a physician shall report annually to the physician assistant board regarding such interest. • Sec. 6. “An ownership interest acquired before the effective date of this Act is governed by the law in effect at the time the interest was acquired, and the former law is continued in effect for that purpose.” (emphasis added).