The following appeared in the sci.med newsgroup. It is posted for
information. Similar regulations are in effect in California.
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Newsgroups: sci.med
Subject: Texas Illegal Practice of Medicine By Reviewers and Insurance
Companies From: [log in to unmask] (Stephen Hammond) Date: Fri,
20 Dec 1996 20:13:17 GMT
Just thought I would pass this on.
To: PAT Board of Directors
PAT Board of Governors Memorandum
From: Wayne Clark
Administrator, CEO
Subject: illegal Practice of Medicine
Date: December 20, 1996
The Texas Board of Medical Examiners has adopted a new policy which
states in part:
"The exercise of decision-making authority over the need for
appropriateness of a medical evaluation or care so as to effect
diagnosis or treatment is the practice ofmedicine.Consequently,
such activity requires a Texas medical license.
To avoid a violation of the law regarding unlicensed practice,
reviewers, insurers, medical directors, and managed care
gatekeepers should be particularly conscientious in allowing
physician providers to exercise independent medical judgment
to the greatest extent possible."
Some History
Last spring, in meetings and discussions with the HCFA (Health Care
Financing Administration), a division of Health and Human Services,
anopportunity presented itself to discuss licensing issues specific to
telemedicine. This also led to the question of related licensing
matters inmanaged care.
As a consequence, the Health Resources and Services Administration
(HRSA), another division of Health and Human Services (HHA), solicited
comments fromthe public and state agencies responsible for regulating
medical licensing.
Some state licensing boards recognized the opportunity this issue
presentedto potentially usurp and dilute their authority.
Specifically, the HHA wassaying that many of the current regulations
serve as an impediment to reducing costs and furthering the objective
of converting Medicare beneficiaries to managed care. Conversations
with and questions posed tosome of these boards enlightened them as to
the possible intent and potential impact of this process.
Additionally, physicians and specialty organizations have become
increasingly sensitive to the manner in which insurers and agencies
controland limit an enrollee's or beneficiary's equal access to care.
This hasnaturally led to an increase in complaints from consumers and
physicians.Especially consumers with higher cost disease/injury cases
which have traditionally relied upon and been referred to specialty
health care providers who may appear to be more expensive to utilize.
Texas has been the first to take action on this issue.
The Texas Board of Medical Examiners received comments and evidence
onthe adverse impact and potential harm to patients that could result
fromthe influence of unlicensed individuals on the medical
decision-makingprocess of Texas physicians. Therefore, the TBME,
consistent with theprovisions of section 3.06(l) of the Texas Medical
Practice Act, took the position that the determination of medical
necessity or appropriateness of proposed care so as effect the
diagnosis or treatment of a patient, is the practice of medicine.
Further, a person who practices medicine in Texas without a license or
permit, so as to cause financial, physical, or psychological harm
shall be subject to prosecution for a third degree felony as provided
for in section 3.07 of the Medical Practice Act.
You should and can expect this to be challenged in the Courts.
However, those challenges may initially be limited to appeals on cases
involving criminal prosecution, imposition of monetary penalties, or
applications for injunctive action.
We believe our position must be to encourage all licensed health care
professionals to immediately report any and all incidents they believe
constitutes the unlicensed practice of medicine. As always,
werecommend these reports be in writing. In addition to reporting
these incidents to the Texas Board of Medical Examiners, copies should
be sent to other relevant state agencies. These might include the
Texas Department of Insurance, the Attorney General, the Texas
Workers' Compensation Commission, the patient, the employer, your
legislator or senator, and others appropriate to the circumstances.
Those who may be suspected of violating the Texas Medical Practice Act
include insurers, case managers, third party review companies, agency
employees, managed care companies, managed care gatekeepers, and
out-of-state medical directors. Utilization Management practices,
common to many managed care agreements and health insurance policies
sold to employers today, which are not based upon nationally
recognized standards of care and nationally accepted standards of
practice could also be regarded as a violation of the Medical Practice
Act.
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Best,
Bob
***********************************
ROBERT A. FINK, M. D., F.A.C.S.
Neurological Surgery
2500 Milvia Street Suite 222
Berkeley, CA 94704-2636 USA
Phone: (510) 849-2555 FAX: (510) 849-2557
WWW: <http://www.dovecom.com/rafink/>
"Ex Tristitia Virtus"
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