I wrote here about a decision by the Texas Medical Board to reject an ALJ’s proposal-for-decision.The case involves the Board’s rejection of the ALJ’s Proposal that the case against the physician be dismissed. The physician had committed a one time error by responding to a patient’s request for medical records with a bill based on the amount that hospitals are allowed to charge, rather than in accordance with the Board rule laying out what physicians are allowed to charge. All of the parties acknowledged that there was no intent or pattern of this exhibited by the physician.
In response to my post, I received a gracious e-mail from the General Counsel for the Texas Medical Board taking issue with some of my comments and explaining the Board’s reasoning. A copy of the Order was also sent and it is here
First, I raised a question about why the Board attorneys would assist in forwarding the case if, the ALJ was correct that it was disallowed by law, and the General Counsel took issue with my comment in his e-mail:
I want to assure you that I do not lightly consider legal issues that come before the Board and neither I nor others who provide legal counsel to the Board would ever participate in changing Findings of Fact and Conclusions of Law proposed by an ALJ without serious consideration.
I acknowledge that my comment was unwarranted and unfair. Upon reviewing the Board Order, it does appear that there is a justifiable legal argument against the ALJ’s Proposal for Decision which underlies the prosecution of this action by the Board.
Therefore, I apologize the Board attorneys and the Board itself and to my readers for my comment (which I have removed).
According to the General Counsel:
The Final Order clearly sets out the basis for the disagreement with Judge Harvel. Her PFD was based on her conclusion that, as you state, “the law clearly states that physicians cannot be disciplined for ‘unknown and isolated billing errors.’†Board staff attorneys and the Board disagreed with that conclusion, because Section 311.025, Health and Safety Code, has no application to this case. It clearly applies only to “a bill for a treatment.†It does not apply to charges for copies of medical records.
The statute to which he refers reads as follows:
§ 311.0025. AUDITS OF BILLING. (a) A hospital, treatment
facility, mental health facility, or health care professional may
not submit to a patient or a third party payor a bill for a treatment
that the hospital, facility, or professional knows was not provided
or knows was improper, unreasonable, or medically or clinically
unnecessary.
(b) If the appropriate licensing agency receives a
complaint alleging a violation of Subsection (a), the agency may
audit the billings and patient records of the hospital, treatment
facility, mental health facility, or health care professional.
(c) A hospital, treatment facility, mental health facility,
or health care professional that violates Subsection (a) is subject
to disciplinary action, including denial, revocation, suspension,
or nonrenewal of the license of the hospital, facility, or
professional. Disciplinary action taken under this section is in
addition to any other civil, administrative, or criminal penalty
provided by law.
(d) In this section:
(1) “Health care professional” means an individual
licensed, certified, or regulated by a health care regulatory
agency who is eligible for reimbursement for treatment ordered or
rendered by that professional.
(2) “Hospital” means a hospital licensed under Chapter
241.
(3) “Mental health facility” means a mental health
facility licensed under Chapter 577.
(4) “Treatment facility” means a treatment facility
licensed under Chapter 464.
(e) A licensing agency may not take disciplinary action
against a hospital, treatment facility, mental health facility, or
health care professional for unknowing and isolated billing errors.
The General Counsel explained the reasoning of the Board for pursuing this case:
As the Final Order makes clear, this was a case akin to running a stop sign. It is not a priority issue with the Board, but the Board cannot accept Judge Harvel’s conclusion of law. To do so would obliterate the Board’s authority to protect the public’s right to obtain a copy of their medical record in a timely fashion and for a reasonable cost.
The Board respects Judge Harvel and all of the ALJs at SOAH. In this case, however, we had a basic and genuine disagreement with her conclusion of law.
Of course, I disagree with the Board’s enforcement action against a physician for something as minimal as this. I think the mistake is more comparable to driving with one brake light that one doesn’t realize is broken than running a stop light. It is the kind of mistake that any doctor could make given the breadth of regulations he or she must follow–and in this case it was rectified even before the Board took action. It seems that it would have been more appropriate for the Board to use the same kind of discretion that police officers sometimes when they don’t issue a ticket, but just give a verbal warning for a minor traffic violation. The fact that the legislature does preclude disciplinary action for “unknowing and isolated billing errors” regardless of whether or not this was meant to apply to billing for medical records or only treatment, seems to convey the intent that this is not the kind of case that it intended for the Board to pursue.
However, my opinion about the Board’s use of discretion in prosecuting this does not justify my unwarranted comment and my apology stands.