Texas Physicians Get New Option For Resolving Some Medical Board Complaints

A new non-disciplinary “Remedial Plan” option enacted by the Texas Legislature last session may allow some Texas physicians to resolve charges of professional misconduct pending before the Texas Medical Board without the National Practitioner Data Bank report that normally results when a physician is formally disciplined by the Texas Medical Board. 

Previously, Texas law only allowed the Texas Medical Board to resolve complaints against a physician through either:

  • Dismissal; or
  • Imposing public discipline.

A public discipline order typically results in a report to the National Practitioner Data Bank in addition to any sanctions and public reporting of the disciplinary action. 

Under reforms enacted in Senate Bill 227/House Bill 680 last session, however, the Texas Medical Board now also may resolve some complaints by offering a “Remedial Plan” rather than imposing formal discipline.   The primary advantage to a physician of having a complaint resolved by a Remedial Plan rather than formal disciplinary actions is that the Remedial Plan will not result in a misconduct and discipline report to the National Practitioner Data Bank because of the “non-disciplinary” nature of the Remedial Plan remedy.  

Under the Remedial Plan option, the physician typically will be required to agree to certain remedial actions dictated by the Texas Medical Board in a public document that will appear on a physician’s public profile.  The written Remedial Plan generally will state that the physician is subject to a “non-disciplinary” action for a specified violation.  While the basis of the charge leading to the Remedial Plan and agreed to corrective action generally will be included in the posted Remedial Plan, a physician generally will not be required to admit guilt.  Since the physician will avoid disciplinary action, resolution by the Remedial Plan avoids the obligation for a report of disciplinary action to the National Practitioner Data Bank.   In addition to avoiding a report to the National Practitioner Data Bank,  resolution of a complaint by a Remedial Plan also allows a physician to avoid having his name listed in the Board’s newsletter or in the Board’s press releases like would result in the case of a disciplinary action.

Remedial Plans are not available for all charges.  Rather, Remedial Plans generally are an option only for a limited number of situations in which the Texas Medical Board decides to offer the option for resolution of a complaint through a Remedial Plan based on its decision that fulfillment of the specified conditions sufficiently corrects the concerns raised by the charge that it is appropriate to forgo formal disciplinary action.  Most typically, this could happen when the Texas Medical Board is addressing administrative violations after receiving a complaint or in other instances where the Texas Medical Board decides the nature and circumstances of a charged violation can be adequately addressed through the Remedial Plan without formal discipline.  When offered, Remedial Plan resolution is a take it or leave it propositions.  The Texas Medical Board decides the required terms of the Remedial Plan and these terms are non-negotiable.  Also physicians offered the option of resolution under a Remedial Plan generally must accept the offered Remedial Plan terms by a specific deadline.

While a physician generally cannot insist upon the option for resolution through a Remedial Plan or dictate the terms of a Remedial Plan, a physician facing charges before the Texas Medical Board often can  can improve his odds for avoiding discipline by the Texas Medical Board or qualifying for resolution of charges under a Remedial Plan by acting quickly with the assistance of experienced legal counsel to gather and present to the Texas Medical Board factual evidence and documentation that negate or mitigate charges of misconduct as well as signaling his interest and willingness to take action to mitigate the risks reflected by the charges and improve performance whether or not the action resulting in the charge in fact resulted in misconduct.

For Help With Compliance, Investigations Or Other Needs

If you need help dealing with licensing, peer review, or other quality assurance, compliance or other health care related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers and other health industry clients to establish and administer and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other quality and performance concerns, and to address other operations and risk management concerns. A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns/ She also regularly designs and presents risk management, compliance and other training for health care providers, professional associations and others including highly popular programs on “Sex Drugs & Rock ‘N Role: Managing Personal Misconduct in Health Care,” “Managing Physician Performance” and others..   Her publications and insights appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.  You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

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THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2011 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.

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