Effective September 1, 2011, House Bill 680 moderately reforms the disciplinary process of the Texas Medical Board (“TMB”). The key points of the reform are listed below.
- Anonymous complaints: The TMB will no longer accept anonymous complaints. “Anonymous” is defined as a complaint that “lacks sufficient information to identify the source or the name of the person who filed the complaint.” That is, the TMB has to be able to identify the complainant. However, the TMB does not have to inform the physician of the name of the person making the complaint, with one exception. If the complainant is an insurance agent, insurer, pharmaceutical company, or third-party administrator, the TMB will notify the physician of the name and address of such party within 15 days after a complaint is filed, unless the notice would jeopardize an investigation.
- Seven year statute of limitations on patient care complaints: The TMB can no longer consider a complaint that is based on care that was provided more than seven years prior to the TMB receiving the complaint, unless the care was provided to a minor. If the care involved a minor patient, the statute of limitations is the later of (a) the date the minor becomes 21 years of age, or (b) the seventh anniversary of the date of care.
- Recording ISC proceedings: Physicians taking part in an Informal Settlement Conference (“ISC”) with the TMB may now request that the proceedings be recorded. The recording becomes part of the TMB file and is confidential.
- Deference to SOAH: After a contested case is heard at the State Office of Administrative Hearings (“SOAH”), the TMB must issue a final Order adopting the findings of fact and conclusions of law reached by the SOAH administrative law judge. However, the TMB retains the discretion as to determining the appropriate action or sanction against the physician.
- Extended timeframes for TMB to complete preliminary investigation: The timeline for the TMB has to complete a preliminary investigation of a complaint and notify a physician of an ISC was changed from 30 to 45 days.
- Remedial plans: The TMB may institute a “remedial plan” to resolve the investigation of a complaint. This plan may not contain a condition that either revokes, suspends, limits or restricts a physician’s license or other authorization to practice medicine or assess an administrative penalty against a physician. However, the TMB may charge the physician for administering the plan. A remedial plan may not be imposed to resolve complaints concerning: 1) a patient’s death; 2) the commission of a felony; 3) a matter where the physician engaged in inappropriate sexual behavior or contact with a patient or became financially or personally involved in an inappropriate manner with a patient; or 4) a matter in which the appropriate resolution may involve a restriction on the manner in which a license holder practices medicine. The physician may not have previously entered into a remedial plan for a different complaint, and the remedial plan becomes public information.
As noted above, the provisions of HB 680 are effective September 1, 2011. The new provisions do not contain any language indicating that the provisions are retroactive. Courts generally presume that the Legislature intends a statute or amendment to operate prospectively and not retroactively. However, this general rule does not apply when the procedural, so the rules above may well apply to proceedings pending as of September 1, 2011.
The version of the law that became effective was not as far-reaching as the originally proposed bill (House Bill 1013). House Bill 1013 would have eliminated “confidential” complaints, rather than just anonymous complaints. That is, the TMB would have had to provide physicians with the name of an individual filing a complaint, unless the complainant was a patient or patient’s family member. House Bill 1013 contained several other provisions that would have been helpful to provisions but were not signed into law, such as:
- Mandating that the TMB may only use actively practicing physicians as experts, who review the record with the name of the accused physician withheld;
- Allowing a 45-day period for physicians to respond to complaints;
- Granting physicians a right to a jury trial if their license is revoked; and
- Requiring the TMB to annually disclose who participated on its ISC panels, and how often.
