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."
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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
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.
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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.
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