Texas' new patient safety law takes effect, sort of

Editor's Note: The above video shows KXAN's top headlines for Sept. 5. Watch Matt Grant's investigation tonight at 10 on KXAN.

AUSTIN (KXAN) -- Five months after KXAN took the findings of our investigation into the Texas Medical Board straight to lawmakers, a major new law is now in effect aimed at protecting patients and saving lives. However, patients wanting to research their doctors ahead of time still have to wait another two years to see greater transparency, our ongoing investigation found.

"The serious issues that were uncovered in your original investigative reporting made it very, very, very clear that patients were at risk," said Dallas medical malpractice attorney Kay Van Wey. "Texas patients will suffer while the Texas Medical Board is taking its sweet time implementing the new law."

The new law, which reforms the Texas Medical Board, or TMB, took effect Sept. 1.

How we got here

House Bill 1998 passed the legislature this past session with overwhelming bipartisan support. It was a direct result of KXAN's "Still Practicing" series, which began in early 2022. Our investigation found dozens of doctors treating patients despite having their medical licenses revoked or suspended in other states. We also found other state medical board websites had more transparency about Texas doctors than our state's. There was no record at the time on their TMB website physician profile.

KXAN brought the findings of our investigation to State Rep. Julie Johnson, D-Farmers Branch, last year. At the time, she said the lack of transparency we uncovered at the TMB was "not going to fly" and she intended to "do something about it." This past legislative session, Johnson introduced HB 1998. The bill was sponsored by State Sen. Bob Hall, R-Edgewood, who said the statutes governing the TMB were "riddled with loopholes" that allowed physicians moving to Texas, or transferring between hospitals, "to avoid disclosing disciplinary actions."

In April, KXAN testified in front of lawmakers about what we uncovered.

"The Texas Medical Board’s goal is to ‘protect and enhance the public’s health, safety and welfare,’” KXAN investigative reporter Matt Grant told members of the Senate Health and Human Services Committee. “But, we’ve discovered, in case after case, the board has instead prioritized protecting physicians over patients.”

The bill was signed into law by Gov. Abbott in June.

Under the new law:

• Doctors who've had their medical licenses suspended or revoked in other states are now ineligible to practice in Texas.
• It's now a Class A misdemeanor to lie on license applications.
• All physicians must now undergo criminal background checks and fingerprinting with the Texas Department of Public Safety.
• All physicians must undergo 24/7 monitoring with National Practitioner Data Bank.

'Get the secrecy out'

Consumers often check the internet for everything — from finding the cheapest gas to looking up the best burgers or tastiest tacos in town. But, when it comes to looking up your doctor or surgeon, transparency is often not on the menu.

"We have to get the secrecy out of healthcare," said Wey, who represented victims of the infamous Dallas spinal surgeon dubbed "Dr. Death," who is serving a life sentence in prison after surgeries left patients maimed or dead.

"The sad fact about it is in Texas, and elsewhere, you can find out more about the safety history of a vehicle or a washing machine than you can a doctor," she added.

Wey calls the new law a "step forward" but said she's upset that a key component — increased physician scrutiny — won't fully kick in, according to the TMB, until the "fall of 2025."

Under the new law, Texas physicians will now be subject to constant nationwide monitoring by the National Practitioner Data Bank, or NPDB, which is a confidential database Congress established in 1986 containing doctor discipline and malpractice records from across the country. The NPDB alerts state medical boards, like the TMB, if a doctor is disciplined while practicing medicine in another state or is criminally convicted.

Those actions, under the new law, are supposed to be made public on the physician's online profile on the TMB website within 10 business days.

But even though the law is now in effect, it will take two years to enroll all Texas doctors.

Why a 2-year-delay?

Now that the law is in effect, the TMB said it can legally begin a hiring process that could last a "few months." The board was approved to hire and train five new full-time employees at a combined salary of $258,216 a year. They'll be tasked with enrolling physicians in a monitoring program with the NPDB called a "continuous query," reviewing those reports and ensuring the physicians' online profiles are up-to-date and any disciplinary actions are made public within 10 business days.

"We believe this is adequate staff to implement the program," said TMB spokesman Jarrett Schneider, who said the staffers will be brought on "as more and more licensees apply or renew their license."

This heightened 24/7 round-the-clock physician monitoring with the NPDB, called a "continuous query," costs $2.50 per physician.

It will cost the TMB $610,895 a year to subscribe to the NPDB. The salary for the five new staffers, the NPDB subscription, and the TMB's administrative costs will total $869,111 annually, Schneider said.

To help pay for it all, physicians will begin paying an $11 fee that will be collected on a "rolling basis," Schneider said, when physicians when first apply for a medical license and when they renew their existing one every two years.

"Board staff will reassess the fees annually for each new fiscal year to ensure adequate resources for administration of the program," said Schneider.

It will take two years — the fall of 2025 — to enroll approximately 122,179 physicians, he said.

'Not concerned'

The TMB said it's "not concerned" by the two-year delay to fully implement.

"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," Schneider said, referring to a National Practitioner Data Bank Continuous Query. "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."

The final version of HB 1998 specified the TMB could collect funds from physicians to pay the continuous query during the "issuance of a first registration permit" and "renewal of a registration permit."

"This was the funding provision approved by the Legislature to pay for NPDB CQ subscriptions," Schneider said in an email.

"This legislation has been a long time coming," Wey said. "And, my hope as a patient myself, is that this is the beginning of a meaningful and significant change."

It's unclear how patients will know if a physician profile is up-to-date. The board said it "proactively" started updating them last year when KXAN first launched our "Still Practicing" series.

Existing staff will "temporarily" help until new hires are made, Schneider said. That typically takes "a month or two." In the meantime, the board will continue to rely on update reports about doctors from the Federation of State Medical Boards, or FSMB, a national non-profit. The FSMB is a resource that states, like Texas, rely on to receive notifications about actions in other states. The non-profit provides physician disciplinary records to all states where that person has ever held a license.

"Once relevant information is entered by staff, the information is available on the profile the following business day," Schneider said. "However, these reports capture a moment in time instead of the ongoing updates that will be provided by NPDB CQ. The Board will continue to utilize the existing reporting in concert with future NPDB CQ reporting."

If the board is investigating a doctor who isn't yet enrolled in continuous query, "snapshot reports" can be ordered from the NPDB to further dig into that person's background, Schneider said.

Still, Wey wishes job postings would have started sooner so the TMB could have been ready to hire on "day one." She believes more also needs to be done on a federal level to protect patients. Wey pointed out the NPDB only collects discipline records from hospitals when privileges are suspended or restricted for more than 30 days. Texas' new law originally tried to make it so suspensions falling below that could be sent to the Data Bank. However, federal health officials told KXAN in February that it wouldn't accept those reports even if they were sent.

"According to the law that governs the NPDB, Clinical privileges actions lasting 30 days or fewer are not reportable to the NPDB," an official told us.