harris county judge takes position that could cause...
TRANSCRIPT
Harris County judge takes position that could cause
bottleneck in psychiatric care
By Todd Ackerman
October 1, 2016 Updated: October 3, 2016 2:41pm
Photo: Johnny Hanson, Houston Chronicle
Two attorneys talk at the end of a hall at the Harris County Civil Courthouse Wednesday, Jan. 15, 2014.
A leading Harris County probate judge is directing his staff not to accept recommendations for
involuntary psychiatric commitment from doctors of osteopathic medicine, a new threat to the already
undermanned mental health care community's ability to care for patients in crisis.
The new policy by Judge Rory Olsen is based on his interpretation that "ambiguous" language in a
provision of the state's health and safety code suggests only medical doctors can certify an individual is
mentally ill, dangerous and in need of commitment. His action has upset osteopathic doctors and
psychiatrists and led leaders of the Texas medical licensing body and numerous professional societies to
write letters urging him to reconsider. They think Olsen is the only judge statewide to not grant
psychiatric commitment applications from osteopathic doctors, or DOs.
"As we are sure you are aware from your long service handling the mental health docket, Texas suffers
from an extreme shortage of psychiatrists and other mental health professionals," according to a letter
signed by the presidents of four societies, including the nearly 50,000-member Texas Medical
Association. "Eliminating DOs' authority in one of the most populous counties in Texas could have
disastrous consequences for the health and safety of persons who physicians have determined need
protective psychiatric care."
The medical leaders said Judge Olsen's policy has created an undue burden on hospitals, making some
scurry to find MDs to examine patients and fill out commitment paperwork when an available osteopathic
doctor should suffice under Texas law. There was never a previous issue when DOs signed, they noted.
The lead lawyer for the Texas Medical Board, the state agency that licenses doctors, also wrote Olsen,
clarifying to him that "all physicians licensed by the board enjoy the same legal status, regardless of
whether they received their medical degree from a school of osteopathic medicine or allopathic medicine
(MD)."
Olsen, a Republican in his 18th year as a mental health probate judge, wrote back to the doctor groups
that his opinion has not changed, noting none of the letters cited a contrary ruling by a higher court. He
recommended they join forces and take the matter to Texas lawmakers, calling the state health and safety
code's lack of clarity their fault, "not yours or mine."
"My suggestion is that instead of trying to strong arm me into adopting your position, which I do not
believe to be correct, that we work together to change the law," Olsen wrote last week. "If you would like
my help, please let me know so I can contact members of the Legislature to put the ball in play."
Olsen added that he is hopeful they could get a bill through the Legislature by the end of March 2017.
DOs, whose specialties include psychiatry, represent about 10 percent of the Texas physician workforce.
More hands-on, holistic and prevention oriented, osteopathic medicine was developed in the second half
of the 19th century as a rejection of the then-prevailing system of medical thought before gradually
moving into the mainstream in the 20th century.
DOs ultimately achieved the same practice rights as MDs in all 50 states, including Texas, where by
regulation at least three members of the 19-member medical licensing board must be osteopathic doctors.
All told, more than 96,000 DOs now practice in the U.S. Included among them is the interim medical
director of the Harris County Psychiatric Center, one of the largest academic psychiatric facilities in the
U.S. The majority of patients sent for court-ordered psychiatric commitment in Harris County go to the
center.
The conflict dates to early last month when Olsen declined to grant a psychiatric commitment request
because the paperwork included a DO's signature. He subsequently instructed staff to reject such
applications before they get to him or the county's other mental health probate court judge. Such
commitment application paperwork requires the signatures of two doctors who examined the patient.
The action mystified psychiatric leaders because DO-signed paperwork always sailed through his office
before. Olsen said in an interview the signature was the first by a DO he's noticed, but acknowledged the
signature of a physician's assistant recently has made him pay closer attention to the paperwork.
Olsen cited a section of the state health and safety code that says, "a physician shall examine the person,"
and defines a physician as "a person licensed to practice medicine in this state." He said the term
physician implies an MD and rejected arguments about the law already establishing that physicians can be
either medical doctors or doctors of osteopathic medicine because a "specific" provision in the code
trumps a more "general" one.
Olsen's interpretation didn't sway Travis County Judge Guy Herman, whose probate court reviews
applications for mental health commitments from 40 counties. He said they allow DOs to sign such
applications and never heard of it being a problem.
"If you look at the definition of who's licensed to practice medicine in Texas, it's MDs and DOs," Judge
Herman said. "It makes no sense that a DO can't be a physician when the code's definition of a licensed
physician includes residents in post-graduate training programs of the American Osteopathic
Association."
Herman said that in recent years, amid the shortage of psychiatrists, he has seen an increase in the use of
DOs in mental health commitment applications.
Olsen said he is open to persuasion, but it would probably require a legal citation from an appellate court.
He also said he'd acquiesce to a legal opinion from Texas Attorney General Ken Paxton's office - though
he wasn't enthusiastic about the idea, partly because it likely would take six months and partly because
the ambiguity in the law could leave a DO vulnerable to a nasty lawsuit if an individual turned out to be
wrongly committed.
"Being placed against one's will in a mental facility involves a substantial loss of liberty," Olsen wrote in
his letter to the Texas doctor groups.
Frustrated Harris County officials want a resolution sooner rather than later, concerned about the
consequences if two MDs aren't available when patients represent a threat to themselves or others. For
instance, Oceans Behavioral Hospital, a geriatric psychiatric facility in Katy, employs only two staff
physicians and one is a DO.
Dr. George Santos, medical director of Houston Behavioral Healthcare Hospital, a former president of the
Houston Psychiatric Society and himself a medical doctor, said Olsen's new policy "ignores the day-to-
day emergency psychiatric needs of the community" and called on him to "continue granting DO-signed
requests as he has for the previous 18 years while awaiting clarification from the Legislature or Attorney
General." His comments were echoed by David Reynolds, executive director of the Texas Osteopathic
Medical Association, who said it is "troubling for all of medicine that this jurist is opting to legislate from
the bench."
Medical leaders will meet this week to talk about their options, said Santos
Todd Ackerman: Medical Reporter, Houston Chronicle
Harris County judge backpedals under pressure on
psychiatric care issue
Changed course after Attorney General's office agreed to review matter
By Todd Ackerman
October 7, 2016 Updated: October 8, 2016 9:53pm
Harris County Judge Rory Olsen is now accepting involuntary psychiatric commitment requests
signed by doctors of osteopathic medicine, a reversal of his position that health care leaders
complained aggravated the area's already limited access to mental health care.
Olsen on Friday changed his policy to only grant the requests from medical doctors following
Texas Attorney General Ken Paxton's decision to review whether osteopathic doctors have the
legal authority to certify an individual is mentally ill, dangerous and in need of commitment.
"I consider this the equivalent of a case on appeal," said Olsen, a Republican in his 18th year as a
mental health probate judge. "It's pretty standard that when a case is under appeal, you freeze
everything."
Olsen said medical providers have been informed DO-signed commitment requests will be
granted until Paxton issues an opinion and after if he sides with osteopathic doctors.
The controversy arose in early September, when Olsen rejected a commitment request that
included an osteopathic doctor's signature, arguing that an "ambiguous" provision of Texas law
suggests only medical doctors can sign medical examination forms. He subsequently directed his
staff to reject DO-signed applications. He was the only judge in the state thought to be rejecting
such requests.
Related
Earlier: Judge takes position that could cause bottleneck in
The change in policy upset many in the medical community, as the Houston Chronicle reported
earlier this week. Leaders of numerous societies, including the nearly 50,000-member Texas
Medical Association, wrote him trying to clarify that MDs and DOs are equal under state law
and expressing concern about the likely effect on the county's already undermanned psychiatric
force.
Such leaders Friday expressed great relief at Olsen's reversal. Dr. Don Read, TMA's president,
said Olsen "made the correct decision" and Stephen Glazier, chief operating officer of UTHealth
Harris County Psychiatric Center, called it a "positive development for patient welfare."
Olsen said the issue has been "blown out of proportion," claiming there aren't many hospitals in
Harris County who have osteopathic doctors signing psychiatric patient orders. He called
Paxton's decision to render an opinion "a good compromise."
Paxton's review was solicited by state senators Charles Schwertner and Joan Huffman. In a
statement Thursday night, Schwertner referred to Olsen's "altogether puzzling decision that
seems to defy decades of established legal and medical precedent" and said he is asking the
attorney general to issue a legal opinion "affirming the right of doctors of osteopathy to practice
medicine in Texas."
"The simple fact is, Judge Olsen doesn't have the authority to decide which physicians he does or
does not want to listen to," said Schwertner, R-Georgetown, chairman of the health and human
services committee and also a medical doctor. "Regardless of this man's opinion, the law
governing the practice of medicine is exceedingly clear: DOs — just like MDs — are fully-
trained, licensed, and accredited physicians with all the rights and responsibilities that entails.
Period."
Earlier Thursday, leaders of professional medical organizations and hospitals had met about the
matter, concerned about "possible downstream effects." Officials in attendance said the
conversation explored all possible solutions, including a lawsuit.
Osteopathic doctors, whose specialties include psychiatry, represent about 10 percent of the
Texas physician workforce. More hands-on and prevention-oriented, osteopathic medicine was
developed in the second half of the 19th century as a rejection of the then-prevailing system of
medical thought before gradually moving into the mainstream in the 20th century.
DOs ultimately achieved the same practice rights as MDs in all 50 states. All told, more than
96,000 osteopathic doctors now practice in the U.S.
Texas medical leaders were mystified by Olsen's September action because previous DO-signed
applications had sailed through his court. Olsen said last week he hadn't noticed any before.
He cited a section of the state health and safety code that says, "a physician shall examine the
person" and defines a physician as "a person licensed to practice medicine in this state. "He said
that to him, the term physician implies a medical doctor and rejected arguments that the law
already clearly establishes physicians either can be medical doctors or doctors of osteopathic
medicine because a "specific" provision in the code trumps a more "general" one.
The judge wrote doctors last week that he was open to persuasion, but suggested it would take a
citation of an appellate court or an opinion from Paxton's office. Olsen said the best solution
would be for the Legislature to clarify the law.
Dr. David Garza, president of the Texas Osteopathic Medical Association, Friday expressed
gratitude to Schwertner and Huffman for requesting the attorney general's opinion but remained
troubled by Olsen's original, "baffling" directive, which he said caused "a trying month for many
DOs." Dismissing the call for a legislative solution, he added that "this is clearly a case of one
judge who chose not to follow the law as written."
Others seemed more focused on the outcome. Dr. George Santos, medical director of Houston
Behavioral Healthcare Hospital and a former president of the Houston Psychiatric Society, called
Olsen's new policy "a more reasoned approach that does not disrupt patient care while the
Attorney General considers his opinion." He said it will restore psychiatric care to more people
in need.
It is unclear how quickly Paxton will issue an opinion on the matter. Kayleigh Lovvorn, his
spokeswoman, said Friday that most opinions are issued within 180 days of the request, though
the amount of time required may vary depending on the volume of research required and the
number and length of commentaries and briefs received.
TEXAS MEDICAL BOARD
MAILING ADDRESS: P.O. BOX 2018 • AUSTIN TX 78768-2018
PHONE: (512) 305-7010
September 21, 2016
VIA E-MAIL (ORIGINAL WILL NOT FOLLOW): [email protected]
The Honorable Judge Rory R. Olsen
Harris County Probate Court Number Three
201 Caroline 7th
Street
Houston, TX 77002
Dear Judge Olsen,
It has been brought to my attention that you, in your role as chief Judge of the Harris County
Mental Health Docket, have recently adopted a policy of refusing to accept Certificates of
Examination performed or any official documents submitted by licensed Texas physicians with
the medical degree designation of “D.O.” or Doctor of Osteopathy. I also understand that this
new policy is based on the definition of “physician” in the Texas Health and Safety Code
§557.003(18)
I am writing to you as General Counsel of the Texas Medical Board, the Texas agency charged
with the licensure and discipline of physicians in Texas, to provide information that might be
helpful to you in regard to the legal status of licensed physicians designated as D.O.s .
All physicians licensed by the Texas medical Board enjoy the same legal status regardless of
whether they received their medical degree from a school of osteopathic medicine (D.O.) or
allopathic Medicine (M.D.). The Occupations Code which sets out the licensing requirements
for Texas Physicians does not reference either allopathic or osteopathic school and simply
requires that an applicant be “a graduate of a medical school located in the United States or
Canada and approved by the board.” Texas Occupations Code §155.003(4). Both types of
school are approved by the Texas Medical Board.
The designations “D.O.” and “M.D.” are required by the Healing Art Identification Act, based
on whether a physician who holds a doctor of medicine degree (“M.D.”) , or a doctor of
osteopathy (“D.O.”). Tex. Occ. Code §104 et. seq. However, this section of the Occupations
Code does not limit the scope of a physician’s practice or the status of a physician’s legal
license. Rather, it only requires a person “who uses the person's name on a written or printed
professional identification, including a sign, pamphlet, stationery, or letterhead, or who uses
the person's signature as a professional identification shall designate as required by this
section.” Tex. Occ. Code §104.003(a).
2
In the State of Texas all physicians license by the Texas Medical Board enjoy the same
licensure status and there is no legal distinction whatsoever between licensed physicians
designated with “M.D.” or “D.O.” In fact the Occupations Code prohibits state programs and
state funded programs from discriminating against a physician solely on the basis of the
academic degree held by that physician (i.e. “M.D.” or “D.O.”). Tex. Occ. Code §151.051
Sec. 151.051. DISCRIMINATION BASED ON TYPE OF ACADEMIC
MEDICAL DEGREE OR CERTAIN RELIGIOUS TENETS
PROHIBITED. (a) A hospital, institution, or program that is licensed by the
state, is operated by the state or a political subdivision of the state, or directly or
indirectly receives state financial assistance may not differentiate in regard to a
person licensed under this subtitle solely on the basis of the academic medical
degree held by the person. The hospital, institution, program, state agency, or
political subdivision may adopt rules and requirements relating to qualifications
for medical staff appointments, including reappointments and the termination of
appointments, the delineation of clinical privileges, or the curtailment of clinical
privileges of persons who are appointed to that medical staff or permitted to
participate in educational programs if those rules and requirements do not
differentiate solely on the basis of the academic medical degree held by the
affected physician and are:
(1) determined on a reasonable basis, such as the professional and ethical
qualifications of the physician;
(2) based on reasonable standards;
(3) applied without irrelevant considerations;
(4) supported by sufficient evidence; and
(5) not arbitrary or capricious.
I would further point out that the definition of “physician” used Texas Health and Safety Code
§557.003(18) is virtually identical to the Medical Practice Act definition of physician:
“Physician means a person licensed to practice medicine in this state.” Tex. Occ. Code
§151.001(18). In summation, all licensed physicians in Texas, regardless of whether they are
designated as M.D. or D.O., are authorized to practice medicine and carry out of the medical
functions described under the Texas Mental Health Code.
If you would like to discuss these issues further, please give me a call.
Respectfully,
Scott M. Freshour, J.D.
General Counsel
Texas Medical Board
401 WEST 15TH STREET AUSTIN, TEXAS 78701-1680 (512)370-1300 FAX (512)370-1693
September 16, 2016
The Honorable Rory R. Olsen
Judge, Harris County Probate Court No. 3
201 Caroline, Seventh Floor
Houston, TX 77002
Dear Judge Olsen:
We are writing on behalf of the more than 50,000 physician and medical student members of the
undersigned medical associations and the millions of Texans we serve.
It has come to our attention that you recently have ruled that doctors of osteopathic medicine (DOs)
do not have the legal authority to issue Certificates of Medical Examination. We are writing to
express our strong disagreement with your ruling and to share our insights into its potential impact.
First, according to the statutes passed by the Texas Legislature and the rules adopted by the Texas
Medical Board, there is no distinction between the legal rights, privileges, and responsibilities of a
Texas licensed physician educated in the allopathic (MD) or osteopathic (DO) curriculum. Both
MDs and DOs can qualify as licensed Texas “physicians” and are thus legally equivalent. See e.g.:
Sec. 155.003, Texas Occupations Code (including references to both allopathic and
osteopathic education in the requirements for eligibility to practice medicine as a physician
in Texas); and
Secs. 571.003(18) and 573.021, Texas Health and Safety Code (making no distinction
between allopathic doctors and doctors of osteopathic medicine with respect to a physician’s
authority to function in emergency detention processes).
Secondly, as we are sure you aware from your long service handling the mental health docket,
Texas suffers from an extreme shortage of psychiatrists and other mental health professionals. A
recent TMA analysis of the 10 largest medical specialties per-capita in Texas versus the nation as a
whole found the largest discrepancy for psychiatrists.
TMA, TOMA, FTP, HCMS Letter re Certificates of Medical Examination
September 16, 2016
Page 2
Eliminating DOs’ authority to issue Certificates of Medical Examination in one of the two probate
courts with a mental health docket in the most-populous county in Texas could have disastrous
consequences for the health and safety of persons who physicians have determined need protective
psychiatric care.
TMA respectfully requests that you reconsider your interpretation of Texas law on the authority of
Texas-licensed DOs to issue Certificates of Medical Examination. Please let us know if it will help
in your review of this matter to have our TMA legal counsel brief this issue further for you.
We emphatically urge you to reverse this decision.
Sincerely,
Don R. Read, MD
President, Texas Medical Association
Kimberly E. Monday, MD
President, Harris County Medical Society
Debra Atkisson, MD
President, Federation of Texas Psychiatry
David E. Garza, D.O., MS.Med.L, FACOFP, FAAFP
President, Texas Osteopathic Medical Association
SENATOR CHARLES SCHWERTNER, MD
SENATE DISTRICT 5 FOR IMMEDIATE RELEASE October 6, 2016 Contact: Tom Holloway (512) 923-5944
Schwertner Defends Access to Psychiatric Care; Calls on Paxton to Affirm Definition of "Physician"
Schwertner calls decision by Judge Rory Olsen not to accept psychiatric evaluations offered by doctors of osteopathy a clear violation of Texas law, says it will only serve to limit psychiatric care in Harris County. AUSTIN, TX –- Today, Senator Charles Schwertner, MD (R-Georgetown) sent a formal request to Attorney General Ken Paxton (attached) asking that he issue a legal opinion affirming the right of doctors of osteopathy (DO) to practice medicine in the state of Texas. Last week, probate Judge Rory Olsen of Harris County created a measure of controversy by stating he would no longer accept recommendations for involuntary psychiatric commitment from doctors of osteopathic medicine -- an altogether puzzling decision that seems to defy decades of established legal and medical precedent. "The simple fact is, Judge Olsen doesn't have the authority to decide which physicians he does or does not want to listen to," said Schwertner. "Regardless of this man's opinion, the law governing the practice of medicine is exceedingly clear: DOs -- just like MDs -- are fully-trained, licensed, and accredited physicians with all the rights and responsibilities that entails. Period." Generally regarded as more holistic and prevention-oriented, osteopathic doctors currently represent about 10 percent of all Texas physicians. DOs enjoy the same practice rights as MDs in all 50 states, including Texas. "As a physician, I find Judge Olsen's attempt to singlehandedly redefine the practice of medicine both reckless and profoundly misguided," continued Schwertner. "This arbitrary policy threatens to make an already difficult situation worse by further limiting access to psychiatric care in an area of the state that already finds itself woefully underserved." A medical doctor by training, Dr. Schwertner currently serves as Chairman of the Senate Committee on Health and Human Services. Schwertner is currently serving his second term as the senator for Senate District 5, a ten-county region of central and east Texas.
###
401 WEST 15TH STREET AUSTIN, TEXAS 78701-1680 (512)370-1300 FAX (512)370-1693
September 16, 2016
The Honorable Rory R. Olsen
Judge, Harris County Probate Court No. 3
201 Caroline, Seventh Floor
Houston, TX 77002
Dear Judge Olsen:
We are writing on behalf of the more than 50,000 physician and medical student members of the
undersigned medical associations and the millions of Texans we serve.
It has come to our attention that you recently have ruled that doctors of osteopathic medicine (DOs)
do not have the legal authority to issue Certificates of Medical Examination. We are writing to
express our strong disagreement with your ruling and to share our insights into its potential impact.
First, according to the statutes passed by the Texas Legislature and the rules adopted by the Texas
Medical Board, there is no distinction between the legal rights, privileges, and responsibilities of a
Texas licensed physician educated in the allopathic (MD) or osteopathic (DO) curriculum. Both
MDs and DOs can qualify as licensed Texas “physicians” and are thus legally equivalent. See e.g.:
Sec. 155.003, Texas Occupations Code (including references to both allopathic and
osteopathic education in the requirements for eligibility to practice medicine as a physician
in Texas); and
Secs. 571.003(18) and 573.021, Texas Health and Safety Code (making no distinction
between allopathic doctors and doctors of osteopathic medicine with respect to a physician’s
authority to function in emergency detention processes).
Secondly, as we are sure you aware from your long service handling the mental health docket,
Texas suffers from an extreme shortage of psychiatrists and other mental health professionals. A
recent TMA analysis of the 10 largest medical specialties per-capita in Texas versus the nation as a
whole found the largest discrepancy for psychiatrists.
TMA, TOMA, FTP, HCMS Letter re Certificates of Medical Examination
September 16, 2016
Page 2
Eliminating DOs’ authority to issue Certificates of Medical Examination in one of the two probate
courts with a mental health docket in the most-populous county in Texas could have disastrous
consequences for the health and safety of persons who physicians have determined need protective
psychiatric care.
TMA respectfully requests that you reconsider your interpretation of Texas law on the authority of
Texas-licensed DOs to issue Certificates of Medical Examination. Please let us know if it will help
in your review of this matter to have our TMA legal counsel brief this issue further for you.
We emphatically urge you to reverse this decision.
Sincerely,
Don R. Read, MD
President, Texas Medical Association
Kimberly E. Monday, MD
President, Harris County Medical Society
Debra Atkisson, MD
President, Federation of Texas Psychiatry
David E. Garza, D.O., MS.Med.L, FACOFP, FAAFP
President, Texas Osteopathic Medical Association
TEXAS MEDICAL BOARD
MAILING ADDRESS: P.O. BOX 2018 • AUSTIN TX 78768-2018
PHONE: (512) 305-7010
September 21, 2016
VIA E-MAIL (ORIGINAL WILL NOT FOLLOW): [email protected]
The Honorable Judge Rory R. Olsen
Harris County Probate Court Number Three
201 Caroline 7th
Street
Houston, TX 77002
Dear Judge Olsen,
It has been brought to my attention that you, in your role as chief Judge of the Harris County
Mental Health Docket, have recently adopted a policy of refusing to accept Certificates of
Examination performed or any official documents submitted by licensed Texas physicians with
the medical degree designation of “D.O.” or Doctor of Osteopathy. I also understand that this
new policy is based on the definition of “physician” in the Texas Health and Safety Code
§557.003(18)
I am writing to you as General Counsel of the Texas Medical Board, the Texas agency charged
with the licensure and discipline of physicians in Texas, to provide information that might be
helpful to you in regard to the legal status of licensed physicians designated as D.O.s .
All physicians licensed by the Texas medical Board enjoy the same legal status regardless of
whether they received their medical degree from a school of osteopathic medicine (D.O.) or
allopathic Medicine (M.D.). The Occupations Code which sets out the licensing requirements
for Texas Physicians does not reference either allopathic or osteopathic school and simply
requires that an applicant be “a graduate of a medical school located in the United States or
Canada and approved by the board.” Texas Occupations Code §155.003(4). Both types of
school are approved by the Texas Medical Board.
The designations “D.O.” and “M.D.” are required by the Healing Art Identification Act, based
on whether a physician who holds a doctor of medicine degree (“M.D.”) , or a doctor of
osteopathy (“D.O.”). Tex. Occ. Code §104 et. seq. However, this section of the Occupations
Code does not limit the scope of a physician’s practice or the status of a physician’s legal
license. Rather, it only requires a person “who uses the person's name on a written or printed
professional identification, including a sign, pamphlet, stationery, or letterhead, or who uses
the person's signature as a professional identification shall designate as required by this
section.” Tex. Occ. Code §104.003(a).
2
In the State of Texas all physicians license by the Texas Medical Board enjoy the same
licensure status and there is no legal distinction whatsoever between licensed physicians
designated with “M.D.” or “D.O.” In fact the Occupations Code prohibits state programs and
state funded programs from discriminating against a physician solely on the basis of the
academic degree held by that physician (i.e. “M.D.” or “D.O.”). Tex. Occ. Code §151.051
Sec. 151.051. DISCRIMINATION BASED ON TYPE OF ACADEMIC
MEDICAL DEGREE OR CERTAIN RELIGIOUS TENETS
PROHIBITED. (a) A hospital, institution, or program that is licensed by the
state, is operated by the state or a political subdivision of the state, or directly or
indirectly receives state financial assistance may not differentiate in regard to a
person licensed under this subtitle solely on the basis of the academic medical
degree held by the person. The hospital, institution, program, state agency, or
political subdivision may adopt rules and requirements relating to qualifications
for medical staff appointments, including reappointments and the termination of
appointments, the delineation of clinical privileges, or the curtailment of clinical
privileges of persons who are appointed to that medical staff or permitted to
participate in educational programs if those rules and requirements do not
differentiate solely on the basis of the academic medical degree held by the
affected physician and are:
(1) determined on a reasonable basis, such as the professional and ethical
qualifications of the physician;
(2) based on reasonable standards;
(3) applied without irrelevant considerations;
(4) supported by sufficient evidence; and
(5) not arbitrary or capricious.
I would further point out that the definition of “physician” used Texas Health and Safety Code
§557.003(18) is virtually identical to the Medical Practice Act definition of physician:
“Physician means a person licensed to practice medicine in this state.” Tex. Occ. Code
§151.001(18). In summation, all licensed physicians in Texas, regardless of whether they are
designated as M.D. or D.O., are authorized to practice medicine and carry out of the medical
functions described under the Texas Mental Health Code.
If you would like to discuss these issues further, please give me a call.
Respectfully,
Scott M. Freshour, J.D.
General Counsel
Texas Medical Board
By Todd Ackerman | October 1, 2016 | Updated: October 3, 2016 7:29pm
7
Photo: Johnny Hanson, Houston Chronicle
Harris County judge takes positionthat could cause bottleneck inpsychiatric care
HOUSTON
Two attorneys talk at the end of a hall at the Harris County Civil Courthouse Wednesday, Jan. 15, 2014.
A leading Harris County probate judge is directing his staff not to accept recommendations forinvoluntary psychiatric commitment from doctors of osteopathic medicine, a new threat to thealready undermanned mental health care community's ability to care for patients in crisis.
The new policy by Judge Rory Olsen is basedon his interpretation that "ambiguous"language in a provision of the state's healthand safety code suggests only medicaldoctors can certify an individual is mentallyill, dangerous and in need of commitment.
His action has upset many in the medicalcommunity and led leaders of the Texasmedical licensing body and numerousprofessional societies to write letters urginghim to reconsider. They think Olsen is the only judge statewide to not grant psychiatriccommitment applications from osteopathic doctors, or DOs.
"As we are sure you are aware from your long service handling the mental health docket, Texassuffers from an extreme shortage of psychiatrists and other mental health professionals,"according to a letter signed by the presidents of four societies, including the nearly 50,000member Texas Medical Association. "Eliminating DOs' authority in one of the most populouscounties in Texas could have disastrous consequences for the health and safety of persons whophysicians have determined need protective psychiatric care."
The medical leaders said Judge Olsen'spolicy has created an undue burden onhospitals, making some scurry to find MDs to examine patients and fill out commitmentpaperwork when an available osteopathic doctor should suffice under Texas law. There wasnever a previous issue when DOs signed, they noted.
The lead lawyer for the Texas Medical Board, the state agency that licenses doctors, also wroteOlsen, clarifying to him that "all physicians licensed by the board enjoy the same legal status,
regardless of whether they received their medical degree from a school of osteopathic medicineor allopathic medicine (MD)."
Olsen, a Republican in his 18th year as a mental health probate judge, wrote back to the doctorgroups that his opinion has not changed, noting none of the letters cited a contrary ruling by ahigher court. He recommended they join forces and take the matter to Texas lawmakers, callingthe state health and safety code's lack of clarity their fault, "not yours or mine."
"My suggestion is that instead of trying to strong arm me into adopting your position, which I donot believe to be correct, that we work together to change the law," Olsen wrote last week. "Ifyou would like my help, please let me know so I can contact members of the Legislature to putthe ball in play."
Olsen added that he is hopeful they could get a bill through the Legislature by the end of March2017.
DOs, whose specialties include psychiatry, represent about 10 percent of the Texas physicianworkforce. More handson, holistic and prevention oriented, osteopathic medicine wasdeveloped in the second half of the 19th century as a rejection of the thenprevailing system ofmedical thought before gradually moving into the mainstream in the 20th century.
DOs ultimately achieved the same practice rights as MDs in all 50 states, including Texas, whereby regulation at least three members of the 19member medical licensing board must beosteopathic doctors.
All told, more than 96,000 DOs now practice in the U.S. Included among them is the interimmedical director of the Harris County Psychiatric Center, one of the largest academic psychiatricfacilities in the U.S. The majority of patients sent for courtordered psychiatric commitment inHarris County go to the center.
The conflict dates to early last month when Olsen declined to grant a psychiatric commitmentrequest because the paperwork included a DO's signature. He subsequently instructed staff toreject such applications before they get to him or the county's other mental health probate courtjudge. Such commitment application paperwork requires the signatures of two doctors whoexamined the patient.
The action mystified psychiatric leaders because DOsigned paperwork always sailed throughhis office before. Olsen said in an interview the signature was the first by a DO he's noticed, butacknowledged the signature of a physician's assistant recently has made him pay closer attentionto the paperwork.
Olsen cited a section of the state health and safety code that says, "a physician shall examine theperson," and defines a physician as "a person licensed to practice medicine in this state." He saidthe term physician implies an MD and rejected arguments about the law already establishing thatphysicians can be either medical doctors or doctors of osteopathic medicine because a "specific"provision in the code trumps a more "general" one.
Olsen's interpretation didn't sway Travis County Judge Guy Herman, whose probate courtreviews applications for mental health commitments from 40 counties. He said they allow DOsto sign such applications and never heard of it being a problem.
"If you look at the definition of who's licensed to practice medicine in Texas, it's MDs andDOs," Judge Herman said. "It makes no sense that a DO can't be a physician when the code'sdefinition of a licensed physician includes residents in postgraduate training programs of theAmerican Osteopathic Association."
Herman said that in recent years, amid the shortage of psychiatrists, he has seen an increase inthe use of DOs in mental health commitment applications.
Olsen said he is open to persuasion, but it would probably require a legal citation from anappellate court. He also said he'd acquiesce to a legal opinion from Texas Attorney General KenPaxton's office though he wasn't enthusiastic about the idea, partly because it likely would takesix months and partly because the ambiguity in the law could leave a DO vulnerable to a nastylawsuit if an individual turned out to be wrongly committed.
"Being placed against one's will in a mental facility involves a substantial loss of liberty," Olsenwrote in his letter to the Texas doctor groups.
Frustrated Harris County officials want a resolution sooner rather than later, concerned about theconsequences if two MDs aren't available when patients represent a threat to themselves orothers. For instance, Oceans Behavioral Hospital, a geriatric psychiatric facility in Katy,employs only two staff physicians and one is a DO.
Dr. George Santos, medical director of Houston Behavioral Healthcare Hospital, a formerpresident of the Houston Psychiatric Society and himself a medical doctor, said Olsen's newpolicy "ignores the daytoday emergency psychiatric needs of the community" and called onhim to "continue granting DOsigned requests as he has for the previous 18 years while awaitingclarification from the Legislature or Attorney General." His comments were echoed by DavidReynolds, executive director of the Texas Osteopathic Medical Association, who said it is"troubling for all of medicine that this jurist is opting to legislate from the bench."
Medical leaders will meet this week to talk about their options, said Santos
Todd Ackerman
Medical Reporter,Houston Chronicle
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