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): Rory.olsen@prob.hctx.net

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

3

C: Mari Robinson, J.D.

Executive Director

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): Rory.olsen@prob.hctx.net

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

3

C: Mari Robinson, J.D.

Executive Director

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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