Transcript Legislative Update - Texas Hospital Association

Legislative Update
Lee Spangler, JD
Vice President, Medical Economics
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.”
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.
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.
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.
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.”
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.”
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.
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.
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.
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.
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.
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.
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.
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:
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•
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Spouse of decedent;
The person acting as guardian or the executor/administrator of estate;
Adult Children;
Parents of decedent; and
Adult siblings.
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.
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.”
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.
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.
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.
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).