Podiatry and Regulation

Hemant Makan is the youthful looking but highly experienced Executive Director of the State Board for the Regulation of Medical Podiatrists (SBRMP),  the latest incarnation of an agency begun in 1923 to regulate chiropodists/podiatrists.  Former cop Hemant takes his legal role very seriously, and is engaged in a big fraud and drug investigation, where he and his small team work as an integral part of a task force with local law enforcement, medicines and state health regulators and the FBI. On his wall are certificates of appreciation from the FBI and from Advocateweb "When the feds are involved we do everything we can to work with them". They will employ private investigators, pose as patients, whatever they need to.

In a case he describes as 'major' he was investigating a big fraud case and out of the blue three women said that they had been subject to sexual boundary violations with the registrant, and had born children by him.  Hemant realised that this was an area that required specialist input and recruited AdvocateWeb to come in and provide support for the women concerned. In turn this led to the re-writing of their codes, separately defining three levels of sexual misconduct: sexual violation, sexual impropriety and sexual exploitation.  The first is about phsyical sexual contact; the second may comprise behavior, gestures, or expressions that are seductive, sexually suggestive, or sexually demeaning to a patient/staff; the third is concerned with sexual exploitation, the altering of the professional relationship over a period of time.

The Board is required to investigate every complaint that comes in, around 140 each year (for 1,200 registrants) as there is no initial screening process.  So if someone complains about a doctor parking in the wrong place officers will formally write to him asking for a statement.  However the vast majority of these are worked through at an officer level and only a handful go to a panel hearing, which are made up of two professionals and one 'public' ie lay member. Most Texas boards have nine members, six professionals and three public, but some, like the Medical Board, have fifteen members. All appointments are political, appointed by the State Governor, with appointments having to be confirmed by the state senate. Most appointments are done without opposition but they may be challenged and hearings then have to be held. In practice Republican Governors will select all Republican appointments, ditto for Democrat Governors.  Governors appoint all Chairs and Board Members state wide and in Texas there are a total of 275 state agencies to appoint to. 11 are health boards regulating a large array of practitioners - the Texas Department of State Health Services Professional Licensing and Certification Unit oversees the following people:

Athletic Trainers, Code Enforcement Officers, Contact Lens Dispensers, Dietitians, Fitters and Dispensers of Hearing Instruments, General Sanitarians, Licensed Professional Counselors, Licensed Social Workers, Marriage Family Therapists, Massage Therapists, Medical Laboratory Practitioners, Medical Physicists, Medical Radiological Technologists, Midwives, Opticians, Orthotists and Prosthetics, Perfusionists, Respiratory Care Practitioners, Sex Offender Treatment Providers, Speech-Language Pathologists and Audiologists

The health professions boards are in turn members of the Health Professions Council and are all overseen by the state Health Department.

 The SBRMP, as in the UK, helps to set standards for education for registrants, but Hemant says that the standards for practice for registrants providing services under Medicare or Medicaid (the states provision of free medical services for people on low incomes, the elderly and people with disabilities) are decided by the federal government.

A big scandal at the Texas Medical Board recently has had huge effects for the rest of the state boards. Several of the senior people at the board have now left, following senate hearings and allegations of unethical behaviour, apparently including unwarranted investigations against registrants who were in competition with them. It turned out that there were no rules established for the conduct of the regulators themselves, so the state legislature mandated that all boards put rules about conduct and conflicts of interest into place. "There was an assumption that people of that stature, appointed to that powerful of an agency, would know that already" says Hemant. The governor's office called every board and told them to identify any issues and deal with them. Some had roles as advisors to health insurers and were then presiding over the same case when it came to the board. This has now been outlawed  so it's clear "You either work for the state or you don't".

We agreed that it was ironic that the same boards charged with overseeing professional conduct had had no rules to govern their own. They now have 43 pages of rules, governing everything they do.

Boards are set up by each state, which theoretically could decide not to regulate. However non-regulation would exclude practitioners from delivering Medicaid/Medicare services, and it would be tough to get insurers to pay.

The board raises $500,000 each year from registrants, and this money goes directly to the states treasury, the 'General Revenue Fund' with only around 60-70% being returned to the board for its work. It's called a fee but is pretty clearly an indirect tax.

Board rules can be changed by the board itself, subject to judicial review, legislative authority and constitutional rights. In order to get a law passed staff take it to the Board, who take it to the Governors office or a state senator or representative or a professional association.

A major difference with UK regulation is that the Board is able to subpoena witnesses, including registrants. Hemant gave me a copy of a subpoena and explained that if it is not adhered to then legal action can be taken. As currently defendants in the UK professional regulatory systems cannot be subpoena'd this may be a useful route to consider, and would avoid situations where panels have no opportunity to ask questions, and witnesses would have the opportunity to hear and understand more from the defendant's point of view.

So, whilst the core role and functions are similar to the UK, the environment is much more politicised.