The state of regulation in Texas- it is not working!

The Texas Medical Board is holding town hall meetings across the state to "invite all medical professionals and the public to a Town Hall meeting to provide input and feedback about regulation of the medical profession." There is meeting next week in Fort Worth.

An article by Mary Ann Roser in the Austin American Statesman described the Town Hall meeting in Austin. Ms. Roser wrote, "some of the 35 doctors who attended the hearing told board representatives that the board is perceived as being harsh and obsessed with minor infractions." What bothered me about the article was that only 35 doctors showed up to voice their opinions!!! Ms. Roser also notes a comment by a member of a consumer group, "'I have some very real concerns about the political pressure that is on the board to go easy on doctors and to not be as vigorous as possible on potential licensees,' said Alex Winslow, executive director of Texas Watch, a consumer organization. In the board's push to improve its public relations, it seems to be focusing its attention on doctors and ignoring patients, Winslow said. 'I hope the board doesn't become unduly influenced by the complaints of a small number of doctors in our state.'"

Not only do I represent nurses before the BON, I have worked at the Texas Medical Board. Consumer groups seem to focus on the number of disciplinary actions and on a few select cases. They assume that disciplinary orders are only issued against "bad" doctors that are harming patients and so the more orders the better the protection. However, what I have seen are disciplinary actions against physicians and other professions for very minor issues (not releasing records on time, not documenting adequately etc)that do not indicate a safety concern. These types of issues do not need disciplinary action.

There is a way to regulate without disciplining health care professionals. Discipline should be reserved for severe violations that truly impact patient safety. Other issues, like inadequate documentation or business type violations, should be handled in a non-disciplinary manner (if the practitioner shows a continued lack of concern or diligence, then the result should be disciplinary action). Too often, violations occur because of a lack of knowledge about the regulations and rules or because of a lack of support (being overwhelmed with work/understaffed or relying upon staff to complete their duties).

The public may take the stand that it is better to be careful by over regulating health care professionals. There is currently an approach that allows for NO errors and if an error occurs, then discipline must be dolled out and that this approach is the only way to ensure patient safety. The reality is that over regulation is harming patient safety. Too many practitioners are leaving the practice of medicine, nursing, etc. because of the hurdles they have to deal with every day and the punitive regulation of their practice is a very big hurdle. Part of patient safety is ensuring that there are enough practitioners available to provide the care.

Everyone makes mistakes. Once again - EVERYONE MAKES MISTAKES. The concern should be what was the thought process that led to the mistake. Does this thought process show a competent practitioner who made an error or a competent practitioner who was uninformed or a competent practitioner that made an error because of system problems or does it show a serious lack of concern, knowledge or skill? Only the last scenario deserves discipline because it represents a definite concern for patient safety. The others may need regulation or they may not. Regulation can involve checking to see if the practitioner completed an educational course or if the practitioner held an in service to educate office staff on the correct procedure for doing whatever the issue is. Regulation may involve having the practitioner come to the Board's office and explain what their thought process was and then dismissing the case if there is no indication of a lack of competency. Regulation may involve having reports submitted by a current employer as to the apparent skills and knowledge observed in the practitioner. Perhaps it is requiring a practice evaluation before dismissing a complaint. Regulation is not always discipline!!!

So, what is the big issue with discipline? People see discipline and they think "bad" or "incompetent" and that is not always the case with current Texas Board actions. I just heard about a hospital where the nursing staff relishes when the BON's newsletter comes out so that they can go to the disciplinary section and see if they know anyone that "got into trouble" and then they can gossip about that nurse. This shows a serious lack of understanding and an incredible lack of support, but too often it is the norm. The damage to one's reputation is huge, especially if the discipline is for something very minor or because of something outside of one's control. For some practitioners, discipline results in being dropped by insurers for reimbursement, which then impacts patients further because their health care provider can no longer treat them because there is no longer any payment for services. Often, practitioners lose their jobs because of a Board Order, no matter what the incident was - minor or serious. Then their family is impacted, especially if they are the sole wage earner. I have too many clients that are facing losing their homes and other belongings, that are unable to support their kids and more just because of a Board Order or the filing of Formal Charges by the BON. These ramifications are the big deal and why regulation needs to be revamped.

Let's work on regulating the professions and not just disciplining. Regulation protects the public! Discipline destroys public safety! Let the consumer groups/professional organizations/Legislators know; get involved before it is too late!

What is TPAPN?

I spoke with a nurse that agreed to TPAPN, yet she did not understand what the Texas Peer Assistance Program was all about. When she asked a clerk at the BON, she was given very vague information and she agree to what she thought was a short term monitoring of her practice consisting of providing drug screens and being supervised at work. TPAPN is much more. I have discussed this issue before in a previous blog.

TPAPN is an approved peer assistance program. As a peer assistance program, TPAPN assists the nurse to practice nursing while in recovery for chemical dependency or while returning to competent practice for nurses with mental health issues.
A nurse can self-report to TPAPN, be referred by an employer or be ordered to participate by the BON. If a nurse recognizes impairment within their life, it is better for the nurse to self-report rather than to receive a third party referral or to be ordered to participate by the BON. Sometimes employers report nurses to TPAPN when there are no impairment issues. Some nurses agree to participate in TPAPN even when there are no impairment issues in order to avoid investigation by the BON; however, this is a dangerous path because in order to participate in TPAPN, a nurse must admit to being impaired and once a nurse starts this process it is very difficult to later discount the admissions.

The TPAPN program lasts for 2 years (3 years for APNs). The program is very intensive. For substance abuse issues, some of the requirements are: the nurse must complete 90 meetings in 90 days and then continue to go to very frequent meetings; the nurse is subjected to random drug screens, which for more frequent initially and then taper off; the nurse is limited to certain hours and specialties when working; and the nurse cannot administer or handle narcotics. The restrictions common for nurses with mental health issues involve counseling requirements.

TPAPN is not an absolute solution to an investigation by the Board and a nurse should discuss the case with an attorney prior to agreeing to go to TPAPN. There have been cases where the BON sent a nurse with years of sobriety to TPAPN and there have been nurses that have agreed to go to TPAPN just because the BON sent them a TPAPN Order and not because the facts of their case warrant a peer assistance program. It is not the BON's responsibility to educate a nurse about their case or to suggest the best resolution, so be sure to get proper advice.

Want to sue the State?

Often I hear from clients that they would like to sue the Board (take your pick: Medical, Nursing etc.) for _______ (usually something to do with the investigation or disciplinary or monitoring action). I always tell them that it is very difficult to sue the State of Texas because you have to get permission from the state to sue the state. Yes, you read that correctly.

A current matter is discussed in today's Austin American Statesman, "Body parts at center of long-running feud" that further illustrates this issue. The story details how a man left his body to UT Medical Branch for research, but that after wrongdoings at "The Willed Body Program" the family began investigating what happened to their family member's body. Apparently 19 families, including the one profiled, sued the school. The article discusses how the school being a state institution is "protected from lawsuits under the sovereign immunity doctrine. The Legislature must approve lawsuits against the state and resolutions that lawmakers filed in 2005 and 2007 to allow the lawsuits by the Whitingers and other families to go forward died in committees. The article by Mary Ann Roser is a very interesting look into a complex issue within administrative law. I think it is yet another example of how powerful the government is and why one must be informed and then, hopefully involved.