As of Sept. 1, 2005, the current Medical Practice Act for the state of Texas will be abolished, that is unless lawmakers decide to reinstate the statute next legislative session. That’s right, it’s time once again for medicine to go through the sunset review process. Once every 12 years, almost all state agencies undergo this thorough review to see if they are still needed and if they are still carrying out their duties in an efficient manner. As with any legislative procedure, politics play a major role, which means sunset can be a very perilous process. But it also provides an opportunity to make positive changes.

The agency up for review in the sunset of the Medical Practice Act is the Texas State Board of Medical Examiners, which is responsible for the licensure and discipline of the state’s physicians. The medical board hasn’t enjoyed much praise over the past few years. In fact, soon after TSBME Executive Director Donald Patrick, M.D., took office two years ago, a series of articles published in The Dallas Morning News excoriated the medical board for what it reported was the board’s refusal to “revoke the licenses of physicians who committed sex crimes or whose repeated mistakes caused the death of patients.”

“The first board meeting after [the articles were published in Jan. 2002], we had a psychiatrist, a psychologist and a minister come in and talk to us about what all this meant, what is sexual misconduct?” Patrick says. “It was very powerful and I think it convinced us that we were on the wrong path and we needed to change. And we did.” One of those changes involved hiring five new lawyers, Patrick says, adding, “The Dallas Morning News had reported that we had cases as old as 7 years that had been moved from one staff attorney to another. We had something like 28 of them that were over three years old. Well, we got the new attorneys in and by the first of August of that year, 2002, we had no backlog over one year.”

During the recent battle over medical liability reform, the medical board endured more attacks from consumer groups and trial lawyers who argued that to protect patients, the state should focus on punishing bad doctors. The Legislature acted to strengthen the medical board through the passage of Senate Bill 104, which increased funding to the board by $5.3 million and increased the board’s disciplinary powers. Patrick believes the medical board is in much better shape now and insists that new processes and a larger staff will prove to be the answer to the public’s questions, but the wolves are still out for blood and sunset is a good time to get it.

During each legislative session, as many as 20 to 30 state agencies go through sunset. Usually agencies are grouped by function so the Legislature can examine them together. In the next session, almost all health care licensure boards – nurses, chiropractors, optometrists, etc. – are scheduled for sunset.

The process is the purview of the 10-member Sunset Advisory Commission, comprised of legislators appointed by the Lieutenant Governor and the Speaker of the House of Representatives. The commission is aided by a professional staff, which kicks off the process with an agency review, taking anywhere from three to eight months. As part of the review, agencies submit a Self-Evaluation Report. The sunset staff also solicits assessments from interest groups, professional organizations and the public. At the end of the review process, the sunset staff publishes a report either recommending what changes might be made to the agency or that the agency should be abolished.

After their report is published, the agency and the public have a chance to respond during a public hearing. All testimony at the hearing is weighed as the Sunset Advisory Commission decides what its recommendation to the full Legislature will be.

The process is long and arduous and full of opportunities for mischief. “There can be a lot of gamesmanship and a lot of political give and take in the sunset process,” says Sam Stone, TAFP general counsel and veteran of many sunsets. “In prior years, the sunset process has been used to expand the disciplinary authority of the board. It’s been used as a mechanism to change the makeup of the board and to change the way the board functions with regard to the appropriations process. On some occasions it has been relatively benign but on one occasion, it was the subject of a special session because the Speaker of the House decided he wanted an expansion of the authority of the optometrists and he held up the passage of the Medical Practice Act. So it wasn’t passed until August, and it would have gone out of business in September,” Stone says.

In most cases, the Legislature passes new legislation to re-enact and modify agencies under sunset review. But should the Legislature decide not to pass a new bill, “the statute simply goes away,” Stone says. “It’s like it was repealed.” Were that to happen to the TSBME, the board would cease to exist. No medical licenses would be issued and none would be revoked. The Legislature would provide resources enough to engage a year long “wind down” process, during which the agency would conclude its operations and its property and records would be distributed to other agencies.

Unlikely to happen? Yes. Only it did happen to the Texas State Board of Dental Examiners in 1993. A quarrel between dentists and dental hygienists over how many seats on the dental board hygienists would hold led to the failure of the TSBDE sunset bill. The session ended, the board was disbanded and for a year, dentistry in Texas was basically unregulated. Things were worked out by the next legislative session and the dental board was reinstated.

To finish this cautionary tale on a happy note, the dental board just came through their most recent sunset successfully during this year’s legislative session. Concerns over the board’s disciplinary record had caused lawmakers to reschedule its sunset for the 78th Legislature rather than the 79th. According to Dr. John Findley of the Texas Dental Association, preparation and active participation in the sunset process was key to their success. “In the 2003 legislative session, TDA’s top priority was to ensure passage of the TSBDE sunset legislation and to avoid any controversy that could jeopardize or delay it. From the beginning of the sunset process, we took a positive, solution-oriented approach, sharing our profession’s perspective and expertise with commission members and staff and working with them to craft a bill that would improve the board’s effectiveness and address its shortcomings,” Findley says.

For family medicine, scope of practice issues will be among the major challenges facing medicine in the upcoming sunset process. Other threats may come in the guise of quality assurance. Consumer groups and business groups may push for more transparency in the medical board’s disciplinary actions. “There’s the danger on the other side of that transparency being grossly unfair to physicians,” Sam Stone says. “If you’re representing a plaintiff in a medical malpractice case, you would love to file a complaint on the doctor with the medical board so that when you have him on the stand you can say, ‘aren’t you under investigation by the medical board?’” As the statute is currently written, investigations are not open to the public. Only final decisions of the board are considered public information.

Donald Patrick with the TSBME says he expects there to be an effort to consolidate all health care licensure agencies under one umbrella organization. The devil would most certainly be in the details of such a change. On one hand, an umbrella agency could police the entire spectrum of health care providers in Texas. For instance, if a chiropractor were practicing beyond his or her scope, this super agency could bring sanctions against the chiropractor. As things are now, the medical board has no jurisdiction over people not licensed to practice medicine and the chiropractic board might not wish to act in such a case.

On the other hand, a reorganization of the type Patrick worries about might involve a disciplinary board with no physicians at all. Decisions made in informal settlement hearings might be made by a panel of commissioners with no medical experience. “Already in the country there are only a half dozen M.D.s who are in charge of medical boards,” Patrick says. “Many have medical directors, but they don’t have power to run their agencies like I do. So I can direct the way medicine is evaluated by law and I can direct a case up to a point. But the final decision is made by the board [of medical examiners], which is basically two-thirds doctors. I think that needs to be that way.”

The chair of TAFP’s Commission on Legislative and Public Affairs, Douglas Curran, M.D., says physician competency will probably be an issue that comes up in the sunset process as well. “I think we’re going to continue to look at things like how do you define a competent physician, what makes one and how do we protect citizens and patients from physicians that are incompetent?”

Curran says that by properly preparing for the sunset process, the Academy can make the best of the situation. “We really need to stress that now, after really being successful, it’s just not the time to let up, especially with our legislative successes. We must be diligent about watching what we’ve accomplished as well as continuing to pursue a high standard … It will be a struggle. It always is. We have the high ground right now and we just want to keep it.”