Texas Medical Board Enforcement Process
The Texas Medical Board receives and reviews over 7,000 complaints a year from patients, patient family members, health care professionals and other sources. After a complaint is received, staff analysts first determine whether the complaint is “jurisdictional.” In other words, is the complaint against someone TMB licenses -- a physician, physician assistant, acupuncturist or surgical assistant? Does the alleged violation fall under the Medical Practice Act? Complaints that are non-jurisdictional may be referred to another agency.
If the complaint is jurisdictional, the board begins the process of determining whether there is evidence to support an allegation that there has been a violation of the Medical Practice Act. Examples of violations include inappropriate prescribing, incorrect diagnosis, or a medical error that may or may not have resulted in an injury to a patient.
During the initial review of the allegations in a complaint, conducted in the first 45 days after receiving the complaint, TMB staff may attempt to contact both the complainant and licensee.
Complaints involving administrative matters, such as requests for medical records, are reviewed by a TMB attorney-investigator. Complaints involving medical care issues are reviewed by a TMB physician-investigator.
If the information provided in the complaint does not state a specific allegation regarding the licensee that would constitute a violation of the Medical Practice Act, and/or the information provided by the licensee during this review shows that no violation occurred, no investigation is opened. For statistical purposes, the case is classified as “Jurisdictional, not Filed.”
When an investigation is opened on a complaint, the case is classified as “Jurisdictional, Filed” and the licensee (called the “respondent”) is informed of the alleged violation(s) and asked to provide additional information. Information may also be subpoenaed from other sources, such as hospitals and pharmacies. TMB has investigative staff working throughout the state. TMB is authorized under HIPAA to obtain medical records without the patient’s consent.
If standard of care/treatment violations are at issue, all relevant information, including medical records, will be reviewed by at least two members of the TMB Expert Panel who are board-certified in the same or similar medical specialty as the respondent. If the resulting Expert Panel Report finds the respondent acted in a manner inconsistent with public health and welfare – including failure to meet the standard of care -- the case will be forwarded to the Litigation Section for further action. Otherwise, the matter will be recommended for dismissal. For administrative or other non-medical care violations, information is gathered from other sources besides the respondent if applicable.
At the end of an investigation, a case may be referred for dismissal to the board’s disciplinary process review committee (DPRC) or for further evaluation by a Quality Assurance (QA) Panel, consisting of up to five board representatives. Under certain conditions, a third option is to offer the licensee a remedial plan, which is a corrective action taken by the board that is considered non-disciplinary.
PHYSICIAN HEALTH PROGRAM
In addition to the above, some cases that deal solely with issues of physical or mental impairment may be referred to the Texas Physician Health Program for evaluation and resolution. This may occur at any point during the investigative process. (Click TXPHP for more information.)
QUALITY ASSURANCE PANEL
The QA Panel reviews cases forwarded by the Investigations Department and may request that an additional investigation be conducted on a case, refer the case to the Litigation Department for a possible informal settlement conference (hearing before a disciplinary panel), refer the case to the board’s disciplinary process review committee for dismissal or offer the licensee a remedial plan. The licensee can accept the remedial plan offer or request an ISC hearing.
Once a case is moved into the Litigation Section, it is assigned to a staff attorney and scheduled for an Informal Settlement Conference/Show Compliance proceeding before a panel composed of two representatives of the appropriate board, i.e., Medical, Physician Assistant, or Acupuncture Boards. Medical Board panels always include one physician and one public member, unless the respondent waives that requirement.
The purpose of the ISC hearing is to provide an informal forum for the panel to review the information and for the licensee to show that he or she is in compliance with the Medical Practice Act. The complainant may also attend the ISC.
If the panel finds there was no violation of the Medical Practice Act, it refers the case to the board’s disciplinary process review committee for consideration of dismissal. If the panel finds a violation, it may offer an agreed order setting out the sanctions and terms to be imposed on the respondent. For certain types of minor violations, the panel may offer a remedial plan which is a corrective action that is considered to be non-disciplinary.
Disciplinary orders may include, but are not limited to, the following:
- Restricting the licensee from performing certain procedures or practices
- Requiring additional training or medical education
- Requiring a chart monitor or other practice monitor
- Requiring compliance appearances before members of the board
- Referring the respondent to the Texas Physician Heath Program
- Requiring participation in rehabilitation or behavioral health programs
- Requiring abstention from drugs and alcohol
- Requiring drug testing
- Requiring participation in AA or similar programs
- Prohibiting a licensee from treating certain types of patients
- Assessing an administrative penalty (a fine)
- Issuing a public reprimand
Approximately 90 percent of all disciplinary actions that TMB takes are resolved through the informal processes described above.
FORMAL RESOLUTION AT THE STATE OFFICE OF ADMINISTRATIVE HEARINGS
If a solution cannot be reached through an agreed order or a remedial plan, the case is assigned to a TMB staff attorney who will handle the case at the State Office of Administrative Hearings (SOAH). A TMB case that is filed with SOAH is called a formal complaint, since it is a complaint against a licensee that is formally filed at SOAH.
The case is heard by an Administrative Law Judge at SOAH, who subsequently will present a Proposal for Decision to the board. The board then issues an order that may include sanctions, or it may dismiss the case. Once the board enters a final order, the respondent may appeal the decision to a Travis County District Court. The board may also appeal the decision in certain circumstances.
In addition to the ISC and SOAH processes that may result in disciplinary orders, TMB may issue a temporary suspension order to remove a physician from practice immediately, if the board determines the physician’s practice is a continuing threat to patients or to the public. Temporary suspension hearings may be held without notice to the physician, followed afterwards by another hearing with notice.
In order to permanently remove a licensee from practice, through revocation of the license, TMB must either file the case with SOAH or the licensee must sign an agreed order of surrender of the license.
Once a licensee is placed under a board order, a Compliance Officer monitors the licensee to ensure the terms of the order are being met. If the violations include substance abuse and the order requires drug testing, TMB has a rigorous drug testing program to hold respondents accountable for complying with the board’s order. Any violation of an order may lead to further disciplinary action, up to and including suspension or revocation of the license.
REPORTING DISCIPLINARY INFORMATION
As mandated, TMB reports to the National Practitioner Data Bank all required disciplinary actions, including but not limited to any suspension, revocation, or public reprimand.
TMB disciplinary actions are also made public. Names and summaries of any type of order approved by the board (agreed order, temporary suspension order, etc) are distributed in news releases, published in the TMB Bulletin, and are included in the licensee’s profile, which is available through the TMB web site. Since remedial plans are not disciplinary actions, they are made publicly available on a physician’s profile, but are not reported in the newsletter or in press releases.