What do Doctors Need to Report to the Medical Board?

Understanding what to report to the Colorado Medical Board outside the renewal cycle can help doctors avoid disciplinary issues.

The most frequent mistake physicians make is failing to report a new address to the Board. Rule 270 requires physicians to update their address of record within 30 days. This requires an express request from the doctor that the address be changed. The Board will not update its files otherwise. While this may seem mundane, the failure to update an address can lead to disciplinary actions when complaint letters do not reach the physician.

Another requirement often overlooked is to notify the Board when a physician/P.A. relationship ends.  Under Rule 400, a P.A.’s conduct may be imputed to a supervising physician.  The Board deems the supervisory relationship to continue “until specifically rescinded by either the physician assistant or the primary physician supervisor in writing.” A physician must not only file a notice with the Board of the supervisory relationship, also notify the Board when the relationship ends. Physicians should not rely on the assumption that the P.A. will notify the Board when the relationship ends.

The failure to timely report a condition that affects a physician’s ability to practice safely will prevent the doctor from entering into a confidential agreement. Under C.R.S. § 12-36-118.5, the Board is authorized enter into confidential agreements to limit practice if the physician suffers from a physical or mental condition that renders the physician unable to safely practice. However, doctors can only take advantage of this statute if the licensee reports the condition to the Board within 30 days of onset. Rule 295 explains the information to be reported, and Policy 30-04 provides guidance on the types of conditions that must be reported. Failure to timely report can result in public discipline.

Doctors and P.A.s are also required to report within 30 days any adverse action against the licensee taken by another state or country, a peer review body, health care institutions, and others. This requirement extends to governmental agencies, law enforcement and courts, if that action would constitute a violation of the Medical Practice Act. Thus, physicians must report any limitation of privilege, felony convictions, and any exclusion from Federal health care programs. Doctors (and P.A.s) must also to report any surrender of privileges while under investigation. Doctors are not required to report malpractice settlements, although Colorado insurance companies must, by statute, report malpractice settlements and judgments to the Medical Board.

The PDMP – Colorado’s Prescription Drug Monitoring Program PDMP – What you should know

As most doctors are aware, the Colorado Board of Pharmacy maintains the Prescription Drug Monitoring Program (PDMP), which provides a database of controlled substance prescriptions dispensed by Colorado pharmacies. Access to the PDMP is limited to a defined set of circumstances. This is important because a provider who improperly accesses the database is subject to significant penalties, including fines and criminal charges. Specifically, a person who improperly obtains information is subject to a civil fine of up to $10,000 each. Violators may also unknowingly commit a class 6 felony under Colorado’s theft of medical record statute. Finally, providers may be subject to discipline by their respective licensing boards for unprofessional conduct.

The PDMP is an on-line database that is available to pharmacists, and to licensed Colorado health care providers with prescriptive authority, such as physicians, dentists, physician assistants, podiatrists, veterinarians, nurses with prescriptive authority, and optometrists. The PDMP is intended to be a “mechanism whereby practitioners can discover the extent of each patient’s requests for drugs and whether other providers have prescribed similar substances…” § 12-42.5-401. A PDMP report shows the date prescriptions are written, the date filled, the controlled substance, the prescribing provider, the amount, refills and pharmacy used.

Because of the potential penalties involved, it is important for doctors, nurses, dentists, and others to understand the circumstances under which they can properly access PDMP data. As it relates to prescribing doctors, PAs, nurses, dentists and other providers, access to the PDMP is limited to inquiries related “to a current patient of the practitioner to whom the practitioner is prescribing or considering prescribing any controlled substance.” § 12-42.5-404(3)(a). Prescribing providers should understand the following:

1) PDMP queries are limited to current patients. In some circumstances, doctors or others who are responding to either malpractice or Board complaints are tempted to look up former patients. If no current practitioner-patient relationship exists, PDMP queries are not permitted.

2) PDMP access is limited to patients. Physicians, nurses and others are not permitted to look up themselves, their staff, or their families on the PDMP.

3) PDMP is limited to providers who are prescribing or are considering prescribing controlled substances. Thus, for example, an allergist should not look up patients for whom he or she would not be prescribing a controlled substance.

Any provider who deems it necessary to obtain his or her own PDMP history may do so, but should make direct request through the Board of Pharmacy rather than through a direct PDMP search. Other providers, such as pharmacists and addiction specialists, engaged in a legitimate program to monitor a patient’s drug use are also permitted to access the PDMP. Additionally, law enforcement agencies may obtain reports related to specific patients or practitioner, and regulatory boards, such as the Board of Medicine, Board of Nursing or Dental Board may also access information related to a specific individual practitioner, where the request is part of a bona fide investigation and accompanied by a court order or subpoena.

Doctors and DUIs: What to do if you’ve had one too many

Just like every other segment of the population, Colorado physicians are not immune from making the mistake of drinking and driving. Unlike other segments of the population, however, a DUI or other alcohol related offense can result in professional discipline. So, what do you do if you are a licensed health care provider who gets a DUI?

The Colorado Medical Practice Act requires that all physicians report within 30 days any “adverse action” by a law enforcement agency that would constitute grounds for discipline under the Medical Practice Act. Although it is arguable that a first-time offense of drunk driving or other related offense would not constitute grounds for discipline and would not, therefore be reportable, under the MPA, the wiser course is to report the action to the Medical Board within 30 days of any conviction. A physician would be required to report the conviction during the next licensing cycle regardless, so it makes sense to self-report early. Like many things, the failure to report could result in greater discipline than the act itself.

Doctors should be aware, however, that once the matter is self-reported, the Medical Board will require the licensee to undergo an evaluation with the physicians’ health program, CPHP, and will issue a complaint letter to the physician to investigate the matter. A great deal of the Board’s decision making with respect to possible discipline will depend on the outcome of the CPHP report. If the report identifies an underlying physical or mental disability, discipline is likely and could include treatment and monitoring. Given the potential downside, the best course of action if you have one too many is to call a cab or get a ride. The trip to pick up your car the next day will be significantly less of a hassle than the damage caused to your license.

Colorado Medical Board Statistics Show Trend Towards More Severe Discipline

Every year or so, the Colorado Board of Medical Examiners releases a “Board Action Summary” showing the number and types of disciplinary actions over the prior decade. The most recent summary (from June 2009*) reveals a trend towards more severe discipline for doctors and physician assistants over the past several years. The BME licenses more than 23,000 physicians and physician assistants. Statistically, the number of complaints received is relatively small (778 complaints in 2009) with about 3-6% of licensees receiving complaints in any given year. In recent years, however, although complaints have decreased, the Board has disciplined more licensees and imposed more severe sanctions.

In 2000, the Board disciplined 75 licensees on 867 complaints (8.6%). In 2009, the Board disciplined 140 licensees on 788 complaints (17.8%). Moreover, it appears that the severity of discipline has increased. In 2008 and 2009, “serious” Board actions (i.e. revocation, license surrender, and suspensions) reached their highest level of the decade and increased significantly over the previous two years. In 2008 and 2009, the Board, revocations, surrenders and suspensions accounted for 81 of the Board’s 261 actions (31%); while in 2006-07 the same actions accounted for only 11% of Board actions (23/199). This suggests one of two things: 1) physicians are committing more disciplinary offenses or 2) the Colorado Medical Board is handing out more severe discipline for the same offenses.

Regardless of the reason, those that come before the Board risk more severe discipline than in years past. Over the next few months, I’ll be discussing the different types of “unprofessional conduct” that can result in discipline (for not only doctors, but nurses and other health care providers), how to respond to Board complaints, and more importantly, how to minimize the chance of popping up on the BME’s radar, based on my experience both as an attorney representing the Colorado Medical Board and defending physicians and others against complaint.

Social Networkers Beware: Facebook Post Results in Physician Discipline

It was bound to happen eventually. According to an MSNBC.COM Report on Monday, the Rhode Island Medical Board reprimanded a physician for inadvertently identifying a patient in a Facebook post. Not only was the doctor reprimanded, she lost her emergency room privileges and was fired from her hospital . Apparently, the doctor didn’t name the patient or intend to reveal privileged information, “the nature of one person’s injury was such that the patient was identified by unauthorized third parties.”

The msnbc.com article can be read here: Doctor busted for patient info spill on Facebook – Technology & science – Security – msnbc.com. The Boston Globe ran a more comprehensive article on the general issue of social media today: For doctors, social media a tricky case – The Boston Globe. The Boston Globe article discusses some of the issues that can come up with social media, including privacy and boundaries issues. Physicians with Facebook accounts should carefully consider what they post and whether to permit patients to “friend” them. Although seemingly innocuous, it could result in medical board issues. Especially where the injury or condition is unique.

I also found the comments to the MSNBC.com article telling. At least one of the comments called for the doctor’s license. The incident and the discipline reinforce how seriously medical boards and patients take the physician-patient privilege, and how easy it is to inadvertently breach that privilege. I haven’t heard of any issues like this in Colorado, but it isn’t difficult to see how this could become a big issue in the future. Look for more hospitals and practice groups to enact social media policies governing physician and staff’s use of social media.

Different Approaches Raise Similar Concerns for Docs

Yesterday’s Wall Street Journal had two articles side-by-side discussing trends in spinal surgery and gynecology that I found interesting. The articles raise issues that spinal surgeons and Ob/Gyns should be aware of and could lead to more medical malpractice claims and Colorado Medical Board complaints.

The first article — Concerns Rise About Rate of Spinal Stenosis Surgery – WSJ.com — discusses rise in complex spinal surgery over the past eight years. The article points out that although spinal decompression surgeries decreased from 2002 through 2007, surgeries combining decompression with fixation or other procedures increased more than 15-fold during that time. As a result the complication rates have more than doubled. The author of a JAMA study cited in the WSJ article attributes the rise in complex procedures to financial motives (the complex surgery typically costs almost 400% more than simpler procedures) and marketing by device manufacturers. The increase in multi-procedure surgeries may signal a shift toward riskier, more expensive procedures. When complications occur, a neurosurgeon who performs a riskier, more complex surgery may have a find themselves not only defending HOW the surgery was performed, but also defending WHY the procedure was performed.

Meanwhile, Ob/Gyns appear to be moving the other direction — less treatment — but also potentially more regulatory and liability issues. The companion article — Questioning Need for Routine Pelvic Exam – WSJ.com — discusses the evolving standards regarding the recommended frequency for pelvic exams in asymptomatic women. The cited study indicates that pelvic exams in healthy, asymptomatic women may be of no use and may deter women from regular visits to their gynecologist. Although the ascribed motive is different than that for the complex spinal surgery, not performing a pelvic exam may end up resulting in more issues for Ob/Gyns. If a routine pelvic exam would have detected a problem, and isn’t performed …, well we know where that goes. So in this case, if something goes wrong, a gynecologist may find herself or himself defending why the examination WAS NOT performed. Thus, an Ob/Gyn may actually protect themselves by performing an otherwise non-indicated examination. I personally dislike the concept of defensive medicine, but that is, unfortunately, where we are.

Revised Medical Practice Act Offers New, Confidential Option for Disabled Docs

Prior to July 1, 2010, Colorado’s Medical Practice Act included within its definition of “Unprofessional Conduct” any physical or mental condition that rendered a physician or physician assistant unable to practice with reasonable skill and safety to patients. As a former attorney for the Colorado Medical Board, this was one of the most troubling aspects of the Medical Practice Act, because doctors who had done nothing wrong were subject to discipline. Often we were put in the position of having to discipline a physician who self-reported a physical disability and would voluntarily agree to limit their practice, because the Board had no other mechanism for enforcing practice limitations. This resulted in public discipline for a doctor who had never endangered patients.

Fortunately, the General Assembly reworked the law, revised C.R.S. § 12-36-117(1)(o), and enacted 12-36-118.5 entitled “Confidential Agreements to Limit Practice. The new statute permits the Colorado Board of Medical Examiners to enter into confidential practice-limitation agreements with physicians and physician assistants who suffer from a physical or mental condition. This is a welcome departure from the prior rule, which many considered draconian.

The new law, however, is not without its limitations. First, Board Rule 295 makes clear that the new law is permissive, and that the Board is not required to enter into a confidential agreement if it deems the agreement inappropriate. Also, alcohol and drug use are not considered to be within the scope of the new rule. Thus, doctors and P.A.s with alcoholism or drug addiction will not likely be able to avoid public discipline. Physicians are expected to self-limit their practice and may be subject to discipline if he or she fails to act within the limitations imposed by their condition. For example, a surgeon with failing vision or motor-control issues who nonetheless performs surgery commits unprofessional conduct and may be disciplined. Even if a licensee does not endanger patients by practicing outside their physical or mental limitations, he or she may be disciplined if they do not timely report the condition to the Board. The agreements themselves will require periodic monitoring with C.P.H.P. and can be modified based on changes in condition. Once a confidential agreement is reached, the physician/P.A. may be disciplined for violation.

The reporting requirements associated with the new statute must be followed or a confidential agreement is unavailable. BME Rule 295 requires both doctors and P.A.s to report any condition which impacts their ability to perform a medical service with reasonable skill and safety within 30 days of the date that the condition begins to impact their practice. The Rule requires that licensees notify the Board, in writing, of their diagnosis, date of diagnosis, treatment plan, treating physician and whether they are undergoing treatment with C.P.H.P. Rule 295 imposes an obligation on the licensee to notify the Board of any changes in condition (positive or negative) within 30 days as well. Consequently, it is important that all licensees familiarize themselves with the new Rule, which can be viewed here.

Importantly, the “safe harbor” provisions available through C.P.H.P. are still available. Thus, if a physician has a disability, he can voluntarily seek assistance through CPHP, and continue to practice. If the physician remains in compliance with any conditions or restrictions put in place by CPHP, the doctor or P.A. does not need to report the condition to the Board. However, if the Board learns of the condition, the licensee may be subject to discipline. The new statute and rule are step in the right direction, and may permit responsible physicians and P.A.s who become disabled to continue their careers unburdened by public disciplinary actions.

Copyright Miller | Kabler, P.C., Attorneys-at-Law