Regulatory boards need to keep their independence

Austin American-Statesman, March 2, 2011

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The separate regulatory boards are cash cows for the state. It makes me wonder if the governor can count.

Anne Mitchell (left) and Vickilyn Galle after their indictment in 2009

Facing a $27 billion budget shortfall, Gov. Rick Perry has revived a failed and tired idea from past legislative sessions. To save a paltry $7 million, he proposes to combine under one umbrella some of the most essential agencies in state government — the boards regulating doctors, nurses, dentists, chiropractors, podiatrists, optometrists, pharmacists, psychologists and physical and occupational therapists.

The health professions boards were created to protect the public from harm. Although sluggish from recent years’ budget cuts, they are effective in protecting us because they are separate agencies with investigators trained specifically for each respective health discipline. They make you, me and every Texan a lot safer when we seek health care.

From the economic and public safety standpoints, the governor’s one-size-fits-all gesture makes no sense at all.

It costs the state $29 million to run these boards, but through licensing fees and disciplinary fines they collectively bring in $79 million for the state’s general fund (numbers courtesy of the Legislative Budget Board and the Texas comptroller’s office).

For example, the Texas Medical Board, which oversees doctors, had a budget of $9.4 million for fiscal year 2010 but brought in $35.7 million to state coffers.

The separate regulatory boards are cash cows for the state. It makes me wonder if the governor can count.

The professions are exceedingly different, with vocation-specific investigators. Nursing experts know nothing about regulating dentistry and vice versa.

The complex Winkler County case demonstrates the importance of a separate health board to protect the public.

The medical board first investigated Dr. Rolando G. Arafiles Jr. in 2007. It found that among other unprofessional and unethical offenses, he failed to keep adequate medical records in supervising a physician assistant who was prescribing nontherapeutic drugs at a weight loss clinic. His penalty was a $1,000 fine and a three-year stipulation on his license.

The doctor relocated, and in 2009, nurses Anne Mitchell and Vickilyn Galle of Winkler County reported the doctor to the board citing numerous cases of improper care, one of which was examining the genitalia of patients in the rural emergency room whose symptoms included stomach distress, headache and sinus pain, and blood pressure and jaw problems.

When the board notified Arafiles of the complaint, he enlisted his golfing buddy, the county sheriff, to find out who reported him. After identifying the nurses through spurious means, the hospital administrator immediately fired them, and the county and district attorneys charged the nurses with misuse of official information — a third-degree felony punishable by 10 years in prison and/or a $10,000 fine.

The medical board sent a letter to the prosecuting attorneys stating that it is improper to criminally prosecute people for raising complaints with the board — that the board depends on the eyes and ears of health care professionals to carry out its duty to protect the public from improper practitioners.

After the nurses’ report, the board investigated Arafiles and charged him with poor medical judgment, nontherapeutic prescribing, failure to maintain adequate records, overbilling, witness intimidation and other violations.

Mitchell and her family endured a torturous eight months waiting for the criminal trial to determine if she would go to prison or be fined an amount she could not pay. In 2010, Mitchell was acquitted in less than an hour, making national headlines and prompting a Texas attorney general investigation into the doctor and Winkler County officials.

The medical board subsequently issued a public reprimand of Arafiles, ordering physician monitoring of his practice and a $5,000 fine. He also was ordered to complete a rigorous course followed by assessments of his competence and medical jurisprudence.

Soon thereafter, the doctor, sheriff, county attorney and hospital administrator were indicted on charges of retaliation against the nurses. They await trial.

The Winkler County case demonstrates the crucial role of a board in protecting the public. The complexity of this case likely would not have been handled effectively by an umbrella agency. Functioning as a single agency would only dilute and weaken the power to protect the public’s safety.

Toni Inglis, MSN, RN, CNS, FAAN, is a lifelong Austin resident and retired editor and neonatal intensive care nurse. She writes a monthly opinion column for the Austin American-Statesman editorial page.