The Medical Board Confidentiality and Transparency Balancing Act

One complaint many patients have when they file a medical board complaints is the lack of feedback the Medical Board provides and how little information is shared. Colorado has for years taken the position that medical board investigations, files and complaints are confidential. Colorado’s Medical Transparency Act provides patients with a centralized database of information concerning health care providers, but does not “open the books” on Board of Medical Examiners’ investigations and relies on physician self-reports. . The Colorado Medical Board has, for years, relied upon a statute that exempted investigations and other information from open records laws, however, the statute didn’t expressly make the records confidential. In 2009, the Colorado Supreme Court in DeSantis v. Simon, found that the Medical Board’s investigations were not confidential and could be obtained through discovery in a civil suit.

To combat this, the Colorado General Assembly amended the Medical Practice Act, section 12-36-118(10) to provide that “records related to a complaint” filed with the Medical Board would receive the same protection as peer review materials. This means that now, Medical Board investigations are not subject to subpoena or discovery in any civil suit brought against a physician. The revised statute essentially overrules the Supreme Court’s ruling in DeSantis, and makes BME investigations confidential.

The General Assembly’s attempt to extend the same protection from discovery to other professional licensing boards, including pharmacy, podiatry, chiropractic, dental, nursing, psychologists and nursing home administrators died on March 22, 2011, when HB 1128 was killed by the house judiciary committee. Based on this, it would appear that complaints against health care providers other than physicians and physician assistants are discoverable in malpractice cases. Under the circumstances, health care providers should consider carefully their responses to licensing board inquiries.

Colorado’s trend towards non-disclosure seems to be bucking a trend towards transparency. Washington’s push for transparency may be an early push, according to this Seattle Times article from March: “Legislative Measure Seeks Medical-Board Transparency“. According to a recent American Medical News article “States Eye Public Access to More Doctor Disciplinary Records,” “at least five states have recently passed or are considering legislation that would create more transparency, particularly regarding physician disciplinary records and procedures. The measures would release more physician information, make that information easier for consumers to get, and provide quicker responses on requests to investigate physicians.”

QUICK READS: Healthcare Law in the News

After resisting the urge, I signed up for a Twitter account – @SteveKabler. One of the nice things about Twitter is that it gives you quick access to all sorts of different news. Here are some of the articles I found this week related to med mal, social media and new legislation:

MEDICAL MALPRACTICE

SOCIAL MEDIA AND MEDICINE

I’ve run a couple of posts about the impact of social media on medicine in the past month. Here are a couple of other interesting articles:

MEDICAL REGULATION

Apparently, the Missouri Board of Registration for the Healing Arts claims it is too difficult to discipline physicians. A new law aims to change that: “Legislature Sends Doctor Discipline Bill to Governor.” I’m most interested in the fact that Missouri hasn’t summarily suspended a doctor in 25 years! Colorado suspended more than 150 between 2000 and 2009 alone.

Supreme Court Denies Expedited Appeal of Healthcare Law

In a widely expected move, the U.S. Supreme Court denied Virginia’s request to fast track the appeal of its Attorney General’s challenge to the Affordable Care Act this week. Had the Court granted the petition, it would have permitted the case to skip the Court of Appeals and likely would have resolved most of the pending challenges to the healthcare law. The Supreme Court has instead required the case to proceed through the normal appeal process.

The Court’s decision signals two things: First, that the Court does not view the case as having the same broad constitutional implications as the ACA’s challengers. Second, that the Court will not likely accelerate any of the state challenges to the law. The Virginia case (and presumably the other state challenges) will now proceed through the normal course and may or may not be heard by the Supreme Court at all. The 4th Circuit will hear the Virginia appeal on May 10.

Kaiser Health News runs a good “Scorecard” of the various challenges – here.

Quick Reads: Healthcare Law In the News

A few interesting articles from the past two weeks.

QUICK READS: Healthcare Law In the News

Here are a few good articles related to healthcare law nationally and locally.

QUALITY OF CARE ISSUES:

HEALTH CARE LEGISLATION

Colorado To Exempt Active Military Personnel from Licensing Requirements

The Colorado General Assembly is considering a new bill which will exempt active duty military personnel from most professional licensing requirements. The bill, HB 1013, will apply to licensed professionals such as physicians, nurses, physician assistants, and other health care providers. The bill exempts licensed, certified or registered professionals from payment of any license or registration fees, including renewal fees and from any continuing education or professional competency requirements while on active duty and for six months following completion of service. The bill is limited to military personnel who are called to active duty for more than 12o days in a “war, emergency or contingency.” Thus, a physician or nurse called to active duty is not responsible for payment of license fees if the renewal period falls within the period of service or the following six months. One open question would be how this bill affects licensees who are subject to a stipulation or under Board-ordered probation at the time they are called to active duty. Generally, Board discipline is held in abeyance while the licensee is on active duty.

Thus far, the bill has passed through committees with out opposition and will likely pass easily.

Colorado Once Again Considers Licensing Naturopaths

The long-running saga of licensure for naturopaths in Colorado has garnered some national attention, although the odds that Colorado will pass licensure legislation remain slim. The New York Times ran an article — Licensing Naturopaths Incites Debate in Colorado – NYTimes.com – this week discussing the many sides of the battle over HB 11-1173.

The debate over licensure creates unusual allies. Proponent of licensure are primarily naturopathic doctors, who attend four-year accredited programs and receive some medical training. Naturopaths argue that creation of a regulatory scheme will protect the public. Opponents include the Colorado Medical Society, (representing the interests of medical doctors) and alternative medicine providers who do not fit the definition of a naturopathic doctor. The medical community feels that the law would permit naturopaths to treat beyond their expertise and be dangerous to patients. The non-naturopath alternative providers believe licensure will squeeze them out of business. The Boulder Daily Camera ran this article —Naturopath licensing bill worries alternative healers— on Sunday which also discusses the proposed new law and the debate.

The statement in HB1173 that licensure is not currently required to practice naturopathic medicine in Colorado is incorrect. Despite the fact that hundreds if not thousands of naturopathic doctors and alternative providers treat patients in Colorado, none are legal. Under the current law, naturopaths and other alternative medicine providers who diagnose and treat patients for any illness, condition or disease (or use the title “doctor”) are technically practicing medicine without a license, and run the risk of legal action by the Colorado Board of Medical Examiners and could face criminal charges. When I represented the Colorado medical board, we obtained injunctions against alternative providers, including naturopaths, nutritional advisers, oxygen providers and others who claimed to treat all sorts of maladies. Licensure would eliminate some, but not all of those actions. The new bill would essentially create a limited medical license for naturopaths, similar to that for nurses, chiropractors and podiatrists. While a regulatory scheme would create some safeguards for patients and legitimize the field, it would also create hurdles for providers who become licensed. Just as every other licensed health care provider in Colorado, licensed naturopath would face discipline for substandard care, boundary violations, substance abuse and exceeding the scope of their licensure. All of this may be moot, however, as every similar bills advanced by the naturopathic community over the past decade has been defeated. Nothing in the current legislative climate indicates a change from that history.

The House Health and Environment Committee will hold a hearing on the bill on March 1, 2011. HB 11-1173 can be viewed here.

Another Federal Judge Weighs in on Obamacare

A Federal Judge in Washington D.C. tossed another challenge to the Patient Protection and Affordable Care Act. As with the other suits, the challenge in D.C. centered on the requirement that all Americans purchase health insurance. In this challenge, a religious group lead by Pat Robertson argued that the law violates the plaintiff’s religious freedom by forcing them to purchase insurance for medical care they refuse to receive on religious grounds. The judge, like the two others who have upheld the law is a Clinton appointee. The New York Times reports that more than 20 challenges have been filed to different aspects of the Act. None of the cases have been heard by appellate courts yet. The first appellate review is scheduled for May.

Here are a few links:

MSNBC: First Read – Obama agenda: The score is now 3-2.

A Third Judge Validates Health Care Overhaul Law – NYTimes.com.

Federal Judge Dismisses Obamacare Challenge – Top Stories – Talk Radio News Service: News, Politics, Media.

Interesting Perspectives on the Health Care Law Court Battle

One of the biggest issues in the news lately has been the federal court rulings on the health care law — i.e., the Patient Protection and Affordable Care Act (PPACA). The primary battle concerns whether Congress can require people to purchase health insurance. This is probably the single most important issue in the law because it creates the funding for the entire risk pool.

Thus far, the scorecard stands at 2 to 2. With federal judges in Virginia and Florida (both appointed by Republicans) ruling against the law, and judges in Michigan and >Mississippi (both appointed by a Democrat) ruling in favor of the law. The prevailing thought is that this will ultimately come down to a party-line fight in the Supreme Court with the GOP holding a 5-4 edge. I thought the New York Times op-edfrom Harvard professor, constitutional scholar and Supreme Court attorney Laurence Tribe offered an interesting perspective and takes the analysis beyond the sound-bite level we get on television. Prof. Tribe’s commentary can be read here.

Another interesting analysis from the Washington Post can be read here.

Ultimately, the PPACA will rise or fall based on the Supreme Court’s ruling, and will affect every health care provider in Colorado and beyond. This should be on everyone’s reading list. If was a betting man (and I sometimes am), I would place my money on the Supreme Court ultimately upholding the law.

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