'Excessive, disappointing': Concerns grow over Texas patient safety law delay

The law -- House Bill 1998, which passed the legislature with overwhelming bipartisan support and went into effect on Sept. 1 -- was sparked by KXAN's "Still Practicing" investigations. It requires stricter scrutiny over Texas doctors and increased transparency when they're disciplined.

AUSTIN (KXAN) — Concerns are growing after the Texas Medical Board said it will take two years to fully implement a new state healthcare law meant to protect patients. Three weeks after the law went into effect, it's creating confusion, not confidence, among some patient advocates.

"I think it could be done quicker," said Dr. Robert Oshel, a former federal employee who is retired from the U.S. Dept. of Health and Human Services, where he worked for the National Practitioner Data Bank, or NPDB, as associate director of research and disputes. "It's certainly a concern for patient safety."

The state law — House Bill 1998, which passed the legislature with overwhelming bipartisan support and went into effect on Sept. 1 — was sparked by KXAN's "Still Practicing" investigations. It requires stricter scrutiny over Texas doctors and increased transparency when they're disciplined. Due to the "funding mechanism" in the law, the TMB previously said it won't be fully implemented for another two years.

“Based on the statute and funding mechanism, the Board is not concerned it will take two years to have physician and physician assistant licensees enrolled in NPDB CQ,” Texas Medical Board (TMB) spokesman Jarrett Schneider previously said, referring to a National Practitioner Data Bank 'Continuous Query,' which is a round-the-clock physician monitoring program. “The timeline is what is feasible under the method to fund the program using licensing fees. The board is eager to have the new NPDB CQ up and running as we believe it will be of great benefit to our licensure and enforcement programs.”

Still, the drawn-out timeline to fully implement the program has some patient advocates worried.

"I think it’s disappointing that it’s going to take them two years to do it," said Oshel, who worked at the NPDB for 15 years before retiring in 2008. "I can understand that they couldn’t be ready to go on day one as soon as the law is passed because you have to hire staff, you have to have procedures in place. But, two years is a long time to fully implement it."

"My understanding was the intent was to have it take effect as quickly as possible," Oshel said. "That doesn't mean day one but it doesn't mean two years later, either."

He called the two-year delay to fully implement the law "excessive."

"As your reporting found, there were a lot of physicians in Texas that come from states that had taken action against them," Oshel said. "And that’s something people in Texas ought to know about on an individual physician basis, not have to wait two years to find out."

What is a Continuous Query?

The NPDB is a confidential federal database containing doctor discipline records from across the country. Under the new state law, Texas joins 22 other states enrolling all physicians in the nationwide, 24/7 monitoring program with the NPDB called a "Continuous Query."

"A Continuous Query is important because, as the name implies, it’s continuous," Oshel said. "New information comes into the data bank, it goes out immediately" as an alert to state medical boards who enroll.

If any Texas doctor is disciplined by another state medical board, has their hospital privileges suspended for more than 30 days, is found liable for medical malpractice or is convicted of a healthcare-related crime, the NPDB will immediately alert the Texas Medical Board.

That type of monitoring is important in order to make informed healthcare decisions, according to federal health officials.

"The ultimate mission of the NPDB is to improve health care quality, protect the public, and reduce health care fraud and abuse in the U.S.," said Health Resources and Services Administration spokesperson Martin Kramer. HRSA is under the umbrella of U.S. Health and Human Services, which operates the data bank. "Querying the NPDB for information on health care practitioners, entities, providers or suppliers allows organizations to make informed licensing, credentialing and hiring decisions. Entities who enroll their practitioners in Continuous Query receive notification within 24 hours of a new report obtained by the NPDB, 24 hours a day, 365 days a year."

Under the new law, "any new information" that "is found" during the query must be added to the physician's public profile "not later than the 10th working date."

'Confusing:' Concerns implementing new law

Oshel, who is familiar with Texas' new landmark, bipartisan patient safety law and the inner-workings of the data bank, has concerns.

Under federal law, any information that state medical boards receive from the data bank must be kept confidential, Oshel points out. The Texas Medical Board will have to confirm disciplinary records another way before making them public, which state law requires. One way to confirm that information is when physicians self-disclose any out-of-state actions or criminal records within 30 days. The board required that in a rule change last year following KXAN's investigations.

"TMB will continue verifying information regarding out-of-state actions as part of the process and will handle NPDB information as required by law," Schneider said.

Under the new state law, the Continuous Query monitoring program is funded through an $11 fee each physician, or physician assistant, will pay — either when they apply for a new Texas medical license, or when they renew their license every two years.

It will be fall of 2025 before everyone is enrolled, Schneider previously said.

"During that two years, you’re going to have some physicians enrolled, other physicians not enrolled," Oshel said. "So, the public looking up information on the board’s website isn’t going to know whether it’s complete, or it’s partial, or what they’re dealing with. So, it’s going to be confusing."

In the meantime, the TMB will continue to rely on alerts from the nonprofit Federation of State Medical Boards, Schneider previously said. The problem with that is FSMB only collects disciplinary records from state medical boards, Oshel said. It does not track medical malpractice payouts, hospital suspensions and criminal actions related to healthcare.

"It's a far cry from what it could be if they had the full information from the data bank," said Oshel.

Can the process be sped up?

Oshel questions why money to fund the mandate can't be "advanced" so the TMB can implement the new law quicker and the patients can "get all the information they need as soon as possible."

It's been done in other states. The Medical Board of California, or MBC, said it borrowed two loans totaling $18 million since 2022 to fund its "general operations ... until a fee increase can be secured," MBC spokesperson Emmalee Ross said.

The money was borrowed from a regulatory authority within the California Department of Consumer Affairs and must be repaid, with interest, within two years of being issued, Ross said.

"TMB has no comment regarding the CMB’s funding/Dr. Oshel’s statements," Schneider said. "The TMB is funded for the NPDB CQ (Continuous Query) program as provided in House Bill 1998."

Separate from hiring five new employees, the TMB clarified it will cost $610,895 over two years, not per year like the agency previously said, to fund the Continuous Query subscriptions. Schneider said it is working with the NPDB to implement and test things like electronically enrolling all physicians in the 24/7 monitoring, instead of manually entering each name.

Oshel said making the switch would save time, labor and tax dollars.

"It will work, but it would be more labor intensive than just simply working with the data bank to enroll everybody at once," Oshel said. "That’s got to be more accurate and cheaper to do it en masse than it is for somebody manually to have to keyboard information in every time there’s a licensure renewal."

"TMB has met multiple times with NPDB for program implementation," Schneider said. "TMB is working with NPDB to implement more efficiencies. Until fully implemented and tested in coordination with NPDB to ensure proper information exchange, TMB will be using manual entries."

Bill's author wants 'timely and effective' implementation

State Rep. Julie Johnson, D-Farmers Branch, introduced HB 1998 this past legislative session in direct response to KXAN's "Still Practicing" investigations, which began in early 2022. At the time, Johnson pledged to "do something about it."

In a statement, Johnson said with "patient safety on the line," the TMB "must get the implementation of these provisions right on the first try." She said her office will be in contact with the TMB to ensure it has the resources needed to implement her law in a "timely and effective manner."

"My top priority with this piece of legislation has been and will continue to be protecting the safety of patients in Texas," Johnson said. "HB 1998 was the culmination of over a year of hard work and input from many stakeholders, and when patient safety is on the line, we must get the implementation of these provisions right on the first try."

Johnson is now running for Congress to represent the Dallas area.

KXAN reached out to Johnson's Congressional primary opponents for their thoughts on Texas' doctor reporting system. Zachariah Manning suggested it should require doctors to "submit an affidavit under penalty of perjury" to help bridge the two-year delay in the law's implementation by the TMB.

"By including an algorithmic provision in the application process or supplement thereof, doctors would have been compelled to promptly comply with the new requirements, ensuring that the intended impact of the legislation is realized and enacted into law," Manning told KXAN. "It would have provided a clear and enforceable deadline, holding doctors accountable while safeguarding the integrity of the healthcare system."

"Sounds like this is an important issue for the state of Texas, and I'd like to hope that the state agencies involved can make improvements happen on a faster schedule," primary opponent Jan McDowell said.

At this time, it is unclear which state legislator could possibly work to update the law in the next regular session in 2025. Johnson will not be returning to the State Capitol, and her Senate co-sponsor, Republican Bob Hall — whose term is not up until 2027 — has not yet responded to our questions.