Rep. Susan King
Rep. Charles Schwertner, MD
Sen. Joan Huffman
“They persevered despite loud protests that covered up self-
serving legislation not in the best interest of the vast majority of Texas doctors.”
As finally passed, HB 680 eliminates anonymous complaints
— where even TMB does not know the identity of the com- plainant — and requires disclosure of the identity of a com- plainant if it is an insurance company, pharmaceutical com- pany, or its agent. The bill allows the identities of patients, their family members, physicians, and other health care profes- sionals who file complaints to remain confidential, but no one could file anonymous complaints. It also extends from 30 to 45 days the time a physician has
to respond to a notice of complaint and allows the physician to tape a TMB informal settlement conference at his or her own expense. Finally, it prohibits the board from granting a license to an applicant whose license was suspended or revoked by another state or country.
Meanwhile, SB 191 by Senator Nelson and Representative King binds TMB to findings of fact and conclusions of law by an administrative law judge in a proceeding supervised by the State Office of Administrative Hearings (SOAH). And, SB 227, also by Senator Nelson and Representative King, grants TMB discretion to waive fines for minor administrative violations in lieu of a remedial action plan.
Battling anonymity While many of those same provisions are in Representative
Brown’s HB 1013, that measure went much farther. It not only eliminated anonymous complaints, but eliminated confidenti- ality for complainants altogether. HB 1013 required the TMB to give physicians a copy of any complaint against them and the name of the accuser. As originally drafted, it also would have:
• Prohibited the board from disciplining a doctor for nonther- apeutic prescribing unless the board could demonstrate that the drug or treatment prescribed is likely to harm a patient;
22 TEXAS MEDICINE July 2011
• Let physicians define their own standard of care based on continuing medical education courses they take;
• Imposed financial conflict-of-interest standards on board members that TMB officials say would have been almost impossible to enforce; and
• Required civil district court jury trials in Travis County for any physician whose license was revoked.
Senator Nelson says there was “overwhelming testimony, including from the Texas Medical Association, in support of maintaining complaint confidentiality” during hearings before the Health and Human Services Committee in May 2010. But there was no such sentiment when it came to insurance com- panies and others, she says. “Individuals and groups testifying at the committee’s hear- ing in May generally agreed that corporate entities like health insurance companies, pharmaceutical companies, and third- party administrators do not face the same threat of retaliation as individuals such as patients, their families and friends, and other health professionals,” she said. “Consequently, they do not need the same confidentiality protections.” TMB officials say the number of complaints filed by insur- ance companies is small. And, they say, anonymous complaints comprise only 1 percent to 3 percent of all complaints TMB receives in any given year. Dr. Teuscher says TMA wholeheartedly supported eliminat- ing anonymous complaints, but could not support doing away with all confidentiality as proposed by HB 1013. “We are sensi- tive to the fact that there may need to be some confidentiality for patient complaints,” he said. “The issue of retribution by the physician has been brought up before.” Fort Worth ophthalmologist Lee Anderson, MD, a former TMB member and president, says confidentiality also is impor- tant for physicians and other health care professionals who file complaints against other physicians, especially in cases involv- ing alcohol, substance abuse, or other impairment issues. “Otherwise, I think doctors would be reluctant to ever com-
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