The Austin Chronicle

Bills Filed to Limit Authority of Texas Medical Board

Van Boven case inspires lawmakers to push for more oversight

By Michael King, March 22, 2019, News

On March 6, the Texas House Committee on Public Health, chaired by Houston Democrat Senfronia Thompson, considered three bills bearing on regulation of the Texas Medical Board. Rep. Bill Zedler, R-Arlington, who is also on the committee, laid out House Bills 602, 603, and 604; the first would require the TMB, after a successfully defended disciplinary case against a medical professional, to remove any listing of the original allegations in the federal National Practitioner Data Bank. HB 603 would forward complaints against the TMB (currently handled solely by the agency) to House and Senate committees for consideration; and HB 604 would require either patients' permission or a judicial warrant before the TMB could access patient records in an investigation.

The immediate context of the three bills has been the ongoing dispute between the TMB and Dr. Robert Van Boven, who sued the agency for abuse of authority and lack of due process and more recently sued individual TMB administrators for acting "ultra vires" (outside legal authority) for refusing to remove the 2015 allegations of "boundary violations" against him from the NPDB – allegations he was exonerated of in 2017 by the State Office of Administrative Hearings in a decision formally confirmed by the TMB (see "Bucking the Blacklist," Nov. 30, 2018).

Zedler has supported Van Boven in that dispute and cited his case to show the effect of an NPDB listing on a doctor's career. "If a doctor's name should not be there, it should be removed," he told the committee. "If their name is on there, it wrecks their ability to earn a living." The companion bills, he said, would provide oversight to the agency and limit its ability to engage in "fishing expeditions" within doctors' records.

Van Boven also testified, recounting years of legal wrangling with the TMB, including "temporary" restrictions on his practice for two years before he received a full hearing at SOAH. Yet following his exoneration, TMB officials insisted that the initial sanction had only been "revised" – thereby maintaining what the doctor describes as a "permanent sanction" on his NPDB record that has prevented him from resuming his neurology practice. "It's an Alice in Wonderland situation," he said. "An exercise in Orwellian doublespeak."

But TMB General Counsel Scott Freshour and Executive Director Stephen Carlton defended the agency (officially "neutral" on the bills), believing they have complied with state and federal law in their interactions with the NPDB. They were further concerned that the reporting requirements contemplated under HB 603 would be too onerous, requiring additional staff – committee members and Zedler responded that the draft bill could be amended to avoid that problem.

Rep. James Frank, R-Wichita Falls, was puzzled that the agency refuses to remove unconfirmed allegations against an exonerated doctor. "Do we really have to tell you to do that?" he asked Freshour and Carlton. "Don't you have a moral and ethical responsibility to do that?" Rep. Eddie Lucio III, D-Brownsville, said he was troubled by the apparent lack of separation between the TMB's prosecutorial function and its response to a SOAH decision. "It's as if a prosecutor, after the judge or jury finds you innocent, says, 'But I'm still going to find you guilty' ... There should be a separation between your office and an independent arbiter."

Van Boven's current litigation against TMB officials – pending at the 3rd Court of Appeals – was only glancingly discussed, but Zedler said of the doctor's NPDB sanctions listing, "Nobody but the TMB believes that it should stay there" ("State to Appeal Decision in Van Boven Case," Dec. 11, 2018). Zedler called the refusal to withdraw the listing a consequence of "hospital retaliation and TMB retaliation" against the doctor. He offered to amend the bills as needed – they currently remain pending in committee.

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