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Special Session Called to Reauthorize TMB and Medical Practice Act

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Charting the Texas Legislature: Sunset — August 2017

Tex Med. 2017;113(8):40.

By Joey Berlin
Associate Editor

After the Texas Legislature adjourned sine die on May 29, Gov. Greg Abbott faced a choice: Bring lawmakers back for a special session, or risk overseeing a state that could no longer license or regulate doctors.

He reached the obvious conclusion, deciding that the failure of the Texas Legislature to pass a sunset bill for the Texas Medical Board (TMB) was too important to leave unaddressed.

"Without this legislation, Texas would be unable to license new doctors, or to regulate the practice of medicine," Governor Abbott said during the announcement. "Unfortunately, it was used as political fodder during the regular session, rather than the must-pass legislation that it is."

On June 6, a little more than a week after the legislature adjourned, the governor called for the special session to begin on July 18, after press time. Governor Abbott directed the legislature to make renewal of TMB and several other state agencies its first priority. He said he would allow the legislature to tackle a list of 19 other items after that.

The call for a special session was welcome news to the Texas Medical Association and its president, Carlos J. Cardenas, MD, after a regular session in which, most observers agreed, politics prevented TMB's renewal.

"I really thought this was something that should've been above all that," Dr. Cardenas said. "I was quite surprised actually that it had come to that."

If the legislature doesn't renew the board, TMB would shut its doors on Sept. 1 and have one year to dissolve, with no hope of resurrection until the 2019 legislative session.

Along with the board, the legislature was called on to renew the Texas Medical Practice Act. That’s important because, as former Texas Sunset Advisory Commission Director Joey Longley told The Dallas Morning News, "There would actually be no statute that said what a doctor was or wasn't."

TMA lobbyist Dan Finch said the challenge would be to figure out whether the legislature would pass a full-blown sunset bill for TMB and for the Medical Practice Act, "or are we simply going to extend the agency for another two years or four years, basically unchanged?"

Even before the 2017 regular session began, TMA recommended that the legislature authorize the continuation of TMB through 2029. TMA also had several pieces it would like to see TMB sunset legislation include, such as improvements to informal disciplinary hearings before the board. Those hearings, known as informal show compliance and settlement conferences (ISCs), have become more formal and trial-like as time has gone on, and the lack of fairness in ISCs has raised the ire of physicians and the attorneys who represent them. (See "On Trial," November 2016 Texas Medicine, pages 28–35.) One change TMA recommends is a requirement that TMB must provide a physician with all produced expert reports before the physician's ISC is held.

"We've got concerns about the length of time that the medical board review process takes," TMA lobbyist Darren Whitehurst said before the session began. "We've got concerns about doctors being able to understand that when they get a letter from the medical board, actually being able to determine what the problem is and being able to respond."

Before the special session, TMA made recommendations on sunset legislation "relating to making the board fair for the doctors, but also recognizing that the purpose of the medical board is to protect the public," Mr. Whitehurst said.

"Our goal is to keep a strong board for a variety of reasons, including the medical liability side," he said. "But we want a strong board that is fair, and that doctors know that if they end up in the medical board process, that they know exactly what to expect and that they'll be treated fairly."

"I think that the governor certainly raised the profile [of the issue] and made it very important," Dr. Cardenas said of renewing TMB. "Job No. 1 is to make sure that we have the TMB in place, and we're optimistic that the session will be fruitful and that we'll get things accomplished for the health of all Texans." 

Joey Berlin can be reached by phone at (800) 880-1300, ext. 1393, or (512) 370-1393; by fax at (512) 370-1629; or by email.

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