Texas Pain Society
P. O. Box 300475, Austin, Texas 78703-0008
Tel: (888) 451-1340 Fax: (512) 451-4076
November 29, 2004
The Honorable Burt Solomons
Texas Sunset Advisory Commission
P.O. Box 2910
Austin, Texas 78768-2901
Sent via fax and hardcopy
Dear Chairman Solomons:
I am writing on behalf of the Texas Pain Society (TPS), our almost 250 physician members, and the thousands of our physician colleagues and patients affected by our work regarding the Sunset Commission staff’s recommendations on the Texas State Board of Medical Examiners (TSBME). TPS agrees with the staff’s recommendations and commends them on their fine work. This letter serves to highlight the extensive recommendations we submitted to the Commission during the hearings held on November 16 and 17, 2004.
After much study and review, TPS believes that the TSBME should quickly organize stakeholders to promulgate mutually agreeable formal rules regarding the following three areas:
TPS is copying this letter and our specific comments to the Commission’s recommendations to the TSBME. We ask that they immediately contact our office to set up a time to review and implement such recommendations by December 7, 2004.
- Institute meaningful stakeholder input and recommendations to the rulemaking process;
- Create a statutory requirement that the expert physician panel function as a deliberative body and their written reports reflect the Standard of Care for the medical condition addressed; and
- Change the dispute resolution process regarding physicians accused of violations.
- Institute meaningful stakeholder input and recommendations to the rulemaking process
- As soon as the TSBME staff develops a rule proposal, submit it to all appropriate stakeholders and implement a meaningful process for changes to the draft before the staff has become sold on the rule. A meaningful process would include an early, open, and receptive dialogue among the Board and appropriate stakeholders. This is the law in many states.
- Take informal rule recommendations seriously and act accordingly.
- Do not submit the rule to the Texas Register until all attempts to reach stakeholder agreement have been made.
- If the TSBME does not show real progress in this regard by the end of January, 2005, introduce a bill to mandate a negotiated rulemaking process.
- Create a statutory requirement that the expert physician panel function as a deliberative body and that their written reports reflect the Standard of Care for the medical condition addressed
- The Rule, Chapter 182, Use of Experts, created by the Board does not require that Expert Physicians function as a panel and collectively deliberate about the charge that a licensee’s conduct falls below the Standard of Care.
- The Standard of Care must be the consensus of experts and not a single practitioner’s opinion.
- The Expert Physician Panel, as mandated by S.B. 104, should function as a deliberative body and collectively create consensus Standards of Care for medical conditions in the State of Texas.
- The reports of the Expert Physician Panels should be published on the TSBME website within 90 days of the resolution of the case.
- Change the dispute resolution process regarding physicians accused of violations
- A statute should be passed to ensure that the Informal Settlement Conference (ISC) must be concluded in 180 days, and if the parties reach an agreement, this agreement should be binding on the Board unless the Board can produce new evidence that it should not be bound. Any Board member in violation of this rule should be subject to sanctions or removal from the Board.
- Failure to reach an agreement and/or any appeal from the ISC level will be taken directly to a District Court and bypass the State Office of Administrative Hearings (SOAH).
Upon failure of the TSBME to work with practitioner stakeholders to achieve mutually agreeable rules to these ends, TPS strongly suggests they be addressed through legislative action. We acknowledge the Board and its staff’s hard work on these difficult issues and greatly wish to work with the Board to develop satisfactory solutions without the need for legislative intervention.
Ralph Rashbaum, MD
Attachment: Specific Comments on Sunset Commission Hearing Material
Cc: Donald Patrick, MD, JD, Texas State Board of Medical Examiners
Rocky Wilcox, JD, Texas Medical Association