Modest Reform of Texas Medical Board Achieved

Elimination of confidential complaints blocked by TMA

Some modest reform measures for the Texas Medical Board (TMB) were passed during the regular Legislative Session. Rep. Schwertner passed a bill in the House, HB 680, which simply increased the days the TMB had to complete an investigation of a complaint from 30 to 45 days. It also increased the notification time of an Informal Settlement Conference (ISC) by the TMB to the doctor from 30 to 45 days. This bill was heard by Sen. Nelson in the HHS committee where several “window dressing” amendments were added. These amendments were pulled from HB 1013, by Rep. Fred Brown, which introduced significant reform measures for the TMB.

Provisions of HB 680 which has been sent to the Governor for his signature

1. Elimination of truly anonymous complaints.

   Analysis: This sounds good, but less than 2% of complaints to the TMB come from anonymous complaints. The real problem is confidential complaints where the board knows the name of the person who complained but keeps the name confidential, i.e. anonymous, from the physician subject to the complaint.

2. The names and addresses of insurance companies and their agents, third party administrators and pharmaceutical companies, that file complaints, are required to be given to the physician subject to the complaint.

   Analysis: This seems like a step in the right direction, but in reality the above named groups do not file complaints directly. They use intermediaries to do their dirty work. That is why there should be no confidential complaints.

   The 6^th Amendment to the US Constitution establishes the fundamental principle that an accused person has the right to know who accused him, what the charges are, who are the witnesses testifying against him and has the right to have witnesses testify in his behalf. These principles are the foundation of all criminal and civil American jurisprudence. Yet they are denied physicians.

   Politicians, lawyers, dentists, veterinarians and accountants are given legal due process when complaints are filed against them, but not physicians.

3. Seven (7) year statute of limitations on complaints.

   Analysis: This is a good provision which came right out of HB 1013.

4. The physician may have his ISC hearing taped.

   Analysis: This is a good provision which came right out of HB 1013.

5. The TMB shall dispose of a contested case by issuing a final order based on an administrative judge's findings of fact and conclusions of law.

   Analysis: This is a good provision which came right out of HB 1013.

Now take a look at the provisions of HB 1013 which passed the Texas House 147-0, but was blocked by the TMA's senate supporters, Senators Jane Nelson and Joan Huffman. You will see why I call HB 680 simply “window dressing” compared to the significant changes contained in HB 1013.

Provisions of HB 1013 passed by Texas House on May 10, 2011

The yellow highlighted sections below were included in HB 680 which passed both the House and Senate and which has been sent to the Governor for his signature.

1. Elimination of anonymous complaints
2. Elimination of confidential complaints; the accused physician shall receive a copy of the complaint which contains the name of the person filing the complaint; only patients and patients' relatives are exempted
3. Prohibition of conflict of interests by Texas Medical Board (TMB) members
4. The TMB can only use actively practicing physicians as experts, who review the record with the name of the accused physician withheld
5. If requested, the TMB shall record the Informal Settlement Conference (ISC) and maintain the recording as part of the record
6. Assignment of ISC panel members shall be done randomly
7. A reasonable 45-day period for physicians to respond to complaints
8. A statute of limitations of 7 years with respect to filing complaints
9. Like attorneys, physicians shall be entitled to a right to a jury trial if their license is revoked
10. The Texas Medical Board shall annually disclose a list of who participated on its ISC panels, and how often.
11. The board shall dispose of a contested case by issuing a final order based on an administrative judge's findings of fact and conclusions of law

So because of our work, we were able to pass some very modest reforms through HB 680.

Analysis of Efforts to Reform the TMB during the 2011 Texas Legislative Session

HB 1013, by Rep. Fred Brown, was the major legislative initiative to secure true and meaningful reform at the TMB. It provided for legal due process for physicians and required transparency and accountability by the TMB. HB 1013 had 87 sponsors and passed the Texas House by a 147-0 margin on May 10^th.

The major opponent to reform of the TMB this session was once again the Texas Medical Association (TMA). At every turn, the TMA opposed legal due process for physicians, and transparency and accountability of the TMB. Even after our overwhelming victory in the Texas House The TMA was able to persuade its allies in the Senate, Senators Joan Huffman and Jane Nelson, to block the block HB 1013 from being heard in the Texas Senate. As head of the Senate Health and Human Services Committee, Senator Nelson refused to give HB 1013 a committee hearing. Lt. Gov. Dewhurst was unsuccessful in his attempts to get Nelson to work with us on this bill.

Because of our work over the past 4 years, the TMA found itself in a position where it had to support some sort of "window dressing" changes to the Texas Medical Practice Act, so that it could boast to its membership that it protected doctors.

In reality the TMA worked full time to oppose legal due process for physicians offered in HB 1013 and put out a flyer to all the state representatives asking them to vote “No” on HB 1013.

The plan to block any meaningful reform of the TMB was developed by the TMA with its key allies in the Texas Senate, Senators Nelson and Huffman.

Despite that TMA's opposition, HB 1013 was supported by both physicians who were members of the House Public Health Committee, Reps. John Zerwas and Charles Schwertner. Rep. Schwertner was the committee member who essentially crafted the language of HB 1013.

We were unable to get the major provisions of HB 1013 amended in the Texas House onto either SB 8 or SB 190. Our motion to amend SB 8 with HB 1013 was ruled non germane.

SB 190 was set on the calendar for a vote by the House where it could have been amended with provisions from HB 1013. Unfortunately SB 190 did not reach the House floor prior to the deadline for passing Senate bills which was May 20^th.

We owe a debt of gratitude to our lobbyists, Allen Blakemore and Michelle Wittenburg. Both of these individuals worked their hearts out in support of our cause. The success that we did achieve this session is a credit to their abilities, grit and determination.

It is said that it takes 5 legislative sessions to pass a bill. We have been through our second session and made great progress considering that legislators had much bigger fish to fry than our bill, such as balancing the budget and education reform and funding.

This session's result only strengthens my resolve to push this issue to its successful conclusion in the 2013 Texas Legislature.

It has been said that "There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things." This is what we are doing.

We can take pride in the fact that that the TMA would never have even worked to have window dressing reform unless we had been hammering away for true reform.

One change always provides an opening for further changes.

The Association of American Physicians and Surgeons v Texas Medical Board lawsuit continues in Federal District Court in Austin, Texas. The heart of this suit is the complaint that the TMB is denying physicians legal due process. We are in the discovery process right now and anticipate that unsavory activities by board members and staffers will be revealed.

The wheels of justice grind slowly, but they grind very fine.

It is true that in every adversity there is a seed of equal or greater benefit. We will turn the obstacles thrown against us to our advantage.

Thank you for your support, phone calls and emails to your legislators. There would not have been any reform at all without your help.

I am confident that working together we shall inevitably succeed in our efforts to obtain transparency and accountability at the TMB, and to ensure that physicians are provided with legal due process before the board.

With much appreciation, I remain, as always,

Sincerely yours for liberty,

Steven F. Hotze, M.D.
President
Texans for Patients' and Physicians' Rights
20214 Braidwood, Suite 215
Katy, Texas 77450
281.698.8679 - Stacey Bandfield, Director of Scheduling
stacey.bandfield@hotzehwc.com
www.hotzehwc.com
www.txppr.org