Sunset Staff Recommends TBCE Consolidation with Other Licensing Agencies
Written by Editor   
Wednesday, November 16, 2016 08:11 AM

News Bite:  The Sunset Commission Staff recommends that the TBCE and eight other health agencies be consolidated into the Health Professions Division of the Texas Department of Licensing and Regulation.  The report notes that “when these small agencies become involved in litigation, ... the agencies typically do not have money in their operating budget or extra staff to help in case litigation."  The Chiropractors, Optometrists, and Podiatrists would be consolidated in phase two to be completed by the end of August 2019.

Each health profession would have a governor-appointed advisory board responsible for development of all practice-related rules.  The all-public member TDLR Commission would consider these practice-related rules for final approval and could adopt, or return the rules to the advisory board, but could not amend them.  With the programs scheduled to transfer from DSHS by 2019, TDLR will oversee 38 licensing programs with more than 168 license types and about 700,000 licensees.

“The independent structure of the state’s health licensing agencies is antiquated and inefficient. … No true system of licensing exists. Texas has a series of independent, separate state agencies. Each has its own governor-appointed board, a majority of which is made up of members of the regulated profession who write their own rules to regulate their own profession. Each has its own licensing staff. Each has its own enforcement and inspection staff. Each has its own administrative staff,” states the Sunset Commission Staff Report titled Health Licensing Consolidation Project.

Potentially explaining why the TMA so frequently sues other boards, Sunset staff recommends “nine entities transfer to the Health Professions Division of Texas Department of Licensing and Regulation (TDLR) to take advantage of economies of scale and elimination of duplicate functions. Due to their small staff size, even well-performing agencies pose a risk since they are but one retirement or a complicated lawsuit away from calamity.”

The report notes that “when these small agencies become involved in litigation, either through an appeal from an enforcement action or a suit brought against the agency directly, the agencies typically do not have money in their operating budget or extra staff to help in case litigation. As a result, agencies often must redirect money and staff time away from core regulatory functions, regardless of any resulting detriment to their mission.”

This is not the first time that Sunset staff has recommended consolidation.  In 2004 they recommended “creating a stand-alone health licensing umbrella agency by consolidating four of the smaller independent health licensing agencies and 19 health licensing programs from DSHS and the Texas Medical Board. [But] at that time, the Sunset Commission declined to recommend the restructuring to the 79th Legislature.”

The report proposes that the Sunset Commission recommend to the Texas Legislature to “transfer 10 health occupational licensing programs to the Health Professions division at TDLR and reconstitute the associated regulatory boards as advisory boards,” claiming that “this recommendation keeps all current licenses intact while gaining efficiencies [in] administrative operations. Each current profession would have a governor-appointed advisory board that would develop and initiate all rules related to practice of the related professions and provide expertise on difficult licensing or standard of care enforcement matters. Meanwhile, TDLR would handle all administrative matters, process licenses, perform investigations and carry out enforcement processes.”

The first phase of their recommendation would transfer the board of the Marriage and Family Therapists, the Professional Counselors, Social Workers, and Chemical Dependency Counselors to the TDLR by the end of August 2018.  The Chiropractors, Optometrists, and Podiatrists would be consolidated in phase two to be completed by the end of August 2019.  Finally, the Physical Therapists, Occupational Therapists, and Psychologists would be consolidated by the end of August 2020.

While “each health profession would have a governor-appointed advisory board responsible for development of all practice-related rules [requiring] the experience and expertise of highly-trained members of that profession,” the report notes that “the all-public member TDLR Commission would consider these practice-related rules for final approval and could adopt, or return the rules to the advisory board, but could not amend them.”  In this way the TDLR “would gain responsibility for registering, certifying, licensing and taking enforcement action against practitioners.  TDLR would make all final regulatory decisions currently requiring board action.”

“Each health advisory board, made up of professional members, continues to function similarly to independent boards. Advisory boards are involved in initiating, developing, and taking public testimony on most rulemaking proposals. By statute, all rules relating to a profession’s scope or standard of care must be proposed by the advisory board and the Texas Commission on Licensing and Regulation may only adopt or return the proposal for further consideration.”

A summary organizational chart of such an arrangement is demonstrated as:

TDLR Commission (all-public members) <------------|
              |                                                                            |
Executive Director  –  General Counsel  –  Health Advisory Board<-----| Support staff (see below)
              |
Deputy ED
              |
Regulatory Affairs   –   Licensing Services   –   Administrative Services
              |
Enforcement, Compliance, Field Operations
              |
Health Professions
              |
Enforcement issues, Licensure and Association Support 
              |

Health Advisory Board Support Staff  –----->  to Health Advisory Board (see above)

In other quotes of interest the report notes:  “Texas is far behind most states that have consolidated their health occupational licensing in various forms.”

“The Texas Department of Licensing and Regulation (TDLR) has been a model for efficiency and quality service. TDLR succeeds by taking advantage of economies of scale.”

These recommended transfers are in no way a punishment for those agencies with performance issues. Staff recommend all nine entities transfer to the Health Professions Division of TDLR to take advantage of economies of scale and elimination of duplicate functions. Due to their small staff size, even well-performing agencies pose a risk since they are but one retirement or a complicated lawsuit away from calamity.”

As advisory boards at TDLR, they still design standard of care rules and develop the penalty matrix for enforcement, and TDLR consults with the boards on matters requiring professional expertise….And no, before we are asked, electrical inspectors won’t be investigating standard of care complaints.  This type of question arises with every transfer, and the answer is that TDLR has successfully obtained the necessary training and required expertise where needed.”

This recommendation would continue the functions of each licensing program and remove the Sunset provision in the enabling statutes of each of these programs, as they would be subject to review under TDLR’s existing Sunset provision, currently set for September 1, 2019.

“In 1989, the Legislature created the Texas Department of Licensing and Regulation (TDLR) to regulate several occupations under one roof. Today, TDLR regulates 32 health and non-health related occupations.”

"During the 1990s and early 2000s, the Texas Medical Board became a quasi-umbrella licensing agency with the transfer of acupuncture and physician assistant regulation and oversight of surgical assistants. Today, the board oversees eight medically-related occupations.”

“By 2004, the Legislature had consolidated the regulation of many health occupations at Department of State Health Services (DSHS).”

"In 2015, Sunset staff found DSHS struggled to effectively regulate health professions with its broad array of other high-priority responsibilities. The Sunset Commission and Legislature agreed, transferring 17 health licensing programs from DSHS to the Texas Medical Board and TDLR.”

Sunset staff identifies as key problems for regulatory agencies:

  • Long complaint investigation and resolution timelines
  • Limited implementation of fingerprint background checks for ALL licensees (not just new applicants)
  • Lack of complaint prioritization
  • Exposure of confidential health information or other discouragement of patients from filing complaints on licensees
  • Turnover is more damaging to small agencies
  • Litigation poses greater threat to small agency operations

With the programs scheduled to transfer from DSHS by 2019, TDLR will oversee 38 licensing programs with more than 168 license types and about 700,000 licensees.

"By placing final rulemaking and enforcement decisions with a public commission,TDLR faces less risk of costly litigation than the independent boards. In North Carolina State Board of Dental Examiners v. Federal Trade Commission, the Supreme Court held that a state licensing board controlled by members of the profession being licensed does not qualify for state action immunity regarding rulemaking and enforcement decisions and may be sued for anti-trust violations for decisions that create an unreasonable restraint of trade. In contrast, the public-member Texas Commission on Licensing and Regulation’s review of advisory board proposals before final adoption may keep TDLR from being found in violation of anti-trust laws.”

"Staff also considered the appropriateness of transferring programs to the Texas Medical Board. However, standard licensing practice dictates that a single board should not have regulatory authority over competing occupations, particularly where that authority could create conflicts of interest. Historically, conflicts have arisen over the scope of practice boundaries between physicians and chiropractors, podiatrists, physical and occupational therapists, optometrists, and psychologists, making these programs inappropriate for transfer to the Medical Board. Further, unlike programs transferred to the medical board by the Legislature in 2015, most of the practices being considered here for transfer do not work under the direction and supervision of a physician.”


 

Source:  https://www.sunset.texas.gov/public/uploads/files/reports/Health%20Licensing%20Consolidation%20Project_11-15-2016.pdf