Tony Cobos speaker at the Advanced Administrative Law conference on August 24-25, 2017 summarizing legislative changes regarding healthcare agencies and licensees.


 

During the 2017 Legislative session, 14 healthcare agencies were reviewed by the Texas Sunset Commission. “Sunset” review is a process whereby state agencies are evaluated by the Sunset Commission as to an agency’s effectiveness in carrying out its statutory duties, whether the agency should continue in existence, and whether possible statutory changes are needed to more fully carry out the agency duties and functions. Sunset reports and recommendations are then used by legislators in proposing House or Senate bills.

 

Major changes regarding mental health provider licensing boards were proposed in the form of HB 2898, merging the licensing and regulation of psychologists, marriage and family therapists, professional counselors, and social workers into a single agency, the Behavioral Health Executive Council (“BHEC”). The bill would have also transferred the Council on Sex Offender Treatment and the licensing of chemical dependency counselors from the Department of State Health Services to BHEC. However, HB 2898 did not pass in the regular session but is likely to resurface in the 2019 session.

 

The Sunset bill regarding the Texas Medical Board, HB 340, failed to pass during the regular session. However, the Texas Medical Board and mental health agencies subject to a newly proposed BHEC agency were subject to special session bills being filed. These bills were ultimately passed, extending these agencies existence until September 1, 2019. Though the extension of these agencies was passed until 2019 without major changes to these agencies’ current enabling statutes, significant legislation was still passed affecting the vast majority of healthcare licensees.

 

Regarding the Texas Medical Board and other licensees with prescribing authority, the Legislature passed a bill affecting the prescribing of controlled substances and the Prescription Monitoring Program (“PMP”) now administered by the Texas Board of Pharmacy:

 

  • Beginning September 1, 2019, physicians, advanced practice nurses and physician assistants must check the Prescription Monitoring Program database before prescribing certain controlled substances, with certain exemptions a sot hospice or cancer care.
  • Texas Medical Board and Texas Physician Assistant Board and other agencies are now required to develop guidelines for the responsible prescribing of certain controlled substances and to monitor prescribing patterns of licensees, and allow the boards to open investigations based on information obtained from the Prescription Monitoring Program.
  • Notably, the Pharmacy Board will be authorized to send “push” notifications to a pharmacist or prescriber with a copy of the notification prescribers licensing Board. The Pharmacy Board is also authorized to developed guidelines (red flags) regarding possible “patterns” of inappropriate prescribing.

 

Regarding pain management clinic regulation:

 

  • The Medical Board is now statutorily able to seek court enforcement of its administrative subpoenas for pain management clinic records. (SB 315)
  • Legislation was passed to clarify the definition of “inappropriate prescribing” to include nontherapeutic prescribing. (SB 315). This statutory clarification will render ineligible those physicians who wish to register a pain clinic but who have past actions related to prescribing of controlled substances.
  • The Medical Board is now authorized to inspect an unregistered pain management clinic. (S.B. 315).

 

Patient care issues related in office anesthesia standards were also a major concern of the Sunset review of the Texas State Board of Dental Examiners. Recent adverse events regarding pediatric dentistry which were well publicized in the media spurred the review of current anesthesia standards and requirements. As a result of this study and its recommendations to the Sunset Commission, legislation was passed under SB 13 with major additional requirements as to the administration of dental anesthesia.

 

Another significant change of law occurred in regard to the Texas Board of Nursing and contested case hearings at the State Office of Administrative Hearings (“SOAH”). The Nursing Board must now adopt the Findings of Fact and Conclusions of Law made by the assigned Administrative Law Judge (“ALJ”). While the Board may still impose the discipline against a nurse if the ALJ finds a violation of statutes or rules, in cases where no violations are found by the ALJ, those findings of fact and conclusions of law will be much more difficult for the Board to challenge. While the Board may appeal a case in which it loses on those issues, it is held to a “substantial evidence” analysis. Generally, the district court reviews the administrative record to determine whether there is “substantial evidence” to support the Order adopted by the Board. The term “substantial evidence” has been interpreted to only require “some” evidence to support the Order’s findings and conclusions. This statutory change may affect the analysis of whether a nurse seeks a contested case hearing versus an agreed disposition.

Other changes were passed by the Legislature, including further standardization of agency investigations, notice of complaints by insurance utilization review agents or third party agents, and Board member training on possible antitrust and anti-competitive issues which may be created by agency rule-making or agency actions. In regard to this latter issue, scope of practice issues appear to be an ongoing major concern and will likely reappear in litigation efforts and in the next legislative session.

For other legislation affecting physicians, see:  http://www.tmb.state.tx.us/idl/45857B1A-6C13-657E-BF41-644765137CDE

For further discussion as to whether any of the above changes may affect your practice, please contact us at 512-473-2265.