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  The Board deems the supervisory relationship to continue “until specifically rescinded by either the physician assistant or the primary physician supervisor in writing.”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.

How Colorado’s Legalization of Marijuana Impacts Physicians

In the 2012 election, Colorado’s voters approved a new constitutional amendment legalizing marijuana for recreational use. This comes five years after Colorado’s legalization of medical marijuana in 2007. In the wake of these laws, the question arises as to how the Colorado Medical Board will treat marijuana use by physicians. The short answer is that the Board will view marijuana use exactly the same as it did before it was legal.

Typically, the Medical Board only becomes aware of a doctor’s use of drugs or alcohol in the context of a complaint for another reason (i.e., a DUI, report of impairment at work, or as the result of a self-report). Like alcohol and other drugs, the Colorado Medical Board has always viewed physician use of marijuana as improper and typically results in the Board ordering physicians to CPHP for an evaluation to determine if the doctor has a substance abuse problem that warrants discipline and oversight. This approach is also echoed by other boards, such as nursing or dentistry, where a referral to Peer Assistance Services is a foregone conclusion where provider drug use is involved. Legalization for medical use did not change this view, and legalization for recreational use will likely not change that view either. Essentially, the legality of a drug is irrelevant to the Colorado Medical Board’s analysis because the Medical Board’s focus is on physician impairment and patient safety. Medscape Today published an interesting article recently that discussed the issue of physician marijuana use and impairment with CPHP’s Medical Director, Doris Gundersen, M.D. The article can be found HERE. (Free login required).  Although Dr. Gundersen does not work for or represent the Medical Board, her statements are consistent with the Medical Board’s view that legality is irrelevant. For example, physicians with prescription pain dependence or addiction (or alcohol impairment) are not exempted from discipline or oversight because the medication is legal and/or prescribed.

Doctors and other health care providers who choose to use either medical or recreational marijuana (or any other drug), should be aware that such use could place the physician’s license in jeopardy. The excuse that “it’s legal” will not be a defense to marijuana use in the eyes of the Medical Board.

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.

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.

Tips for Ending the Physician-Patient Relationship With Problem Patients

One question I get from time to time is how a doctor may discharge “problem patients” and end the physician-patient relationship. Doctors who terminate the relationship improperly can face disciplinary charges for patient abandonment or worse. Medical Board complaints for patient abandonment are generally the result of poor communication and typically are the product of a doctor moving to a new practice group; the closing of a medical practice; or a physician moving to a new city. I’ll deal with closing and departing from a medical practice in another post. The issue today is the “problem patient” — one who is disruptive, non-compliant, delinquent or simply has a personality clash with the physician or staff. Discharging these patients should be done with care.

The physician-patient relationship is not a life-long commitment for either the doctor or the patient. With the exception of certain requirements of EMTALA (the Emergency Medical Treatment and Active Labor Act of 1986), physicians are not obligated to accept every patient who seeks his or her services. Once the doctor-patient relationship is established, however, a doctor must follow certain guidelines when discharging a patient to avoid abandoning the patient. Colorado Medical Board policy 40-02 sets out the procedural guidelines for discharging a patient. The Medical Board recommends that:

  • Any discharge be in writing and sent to the patient via certified mail;
  • In the discharge letter, the doctor agrees to provide 15-30 days of provisions coverage while the patient finds a new doctor;
  • The physician provide information for referral to new physicians, if possible; and
  • The letter notify the patient that the patients’ records will be sent to the new physician upon receipt of a written authorization from the patient.

Keeping in mind that problem patients are being discharged for a reason, care should be taken to make sure that a physician minimizes the risk of being charged with abandonment or worse by virtue of the discharge. Even where procedural guidelines are followed, physicians must take care that all discharges are for non-discriminatory reasons, not in violation of anti-discrimination laws such as the Americans with Disabilities Act, and do not jeopardize the welfare of the patient. Thus, a discharge letter should also explain the reasons for discharge in clear and concise language, taking care to spell out the non-discriminatory basis for ending the relationship. A properly prepared discharge letter can eliminate many headaches for the doctor down the road.

Social Media & Medicine — Tips for Avoiding Trouble

The ever-increasing popularity of social media sites like Twitter, Facebook and others, can create issues for doctors and other health care providers. A few weeks ago, I posted about the Rhode Island physician who lost her job and was reprimanded by the Medical Board for inadvertently  identifying a patient on Facebook. Other than the HIPAA and physician-patient privilege issues, social media can present other issues for doctors. For example, last year, CNN.com ran a story about physicians on a humanitarian mission to Haiti posting photos on Facebook. The article, which can be read here, indicates that the Puerto Rican Medical Board investigated the posting of photos of doctors drinking, posing with guns and partying. Ultimately, Medical Board exonerated the physicians, but the incident itself highlights the risks of social media for doctors.

A major concern for health care providers with an online presence is maintaining professional and personal boundaries. The AMA has issued a policy on professionalism in the use of social media for physicians that should be required reading for all healthcare professionals. The AMA Policy can be viewed here.

Doctors and other healthcare providers who choose to have a social media presence should keep a couple of things in mind:

  • Nothing about the Internet is Private. The physician-patient privilege and HIPAA prohibit disclosure of any information that would identify a patient. The more unique a case is, the more likely a description would identify the patient. Don’t discuss patients or cases, no matter how interesting. Here’s what can happen.
  • Boundaries become Blurred Online. As with the physicians in Haiti discussed above, the lines between private and professional life can be difficult to discern. An April 2007 article in the AMA Journal Of Ethics, cautions against physician’s disclosure of personal issues to patients, such as similar medical conditions, in an attempt to empathize with the patient. Allowing patients “behind the curtain” into a physician’s personal life is a situation ripe for problems. Although patients may feel a greater connection to the physician, they can also start to view the relationship as something more. Most commenters recommend avoiding “friending” patients on Facebook. See”A Doctor’s Request: Please Don’t Friend Me” from USA Today; and “Practicing Medicine in the Age of Facebook” from the New England Journal of Medicine. Because of the unique nature of the physician-patient relationship, keep your personal and professional life separate.
  • The Same Rules Apply Online as Off. If physicians or practices choose to have Facebook or other social media presence, keep in mind that all of the rules that apply in the real world apply online. This means that poor advice, poor decisions, and poor communication online can have the same affect as that given in person.

Quick Reads: Healthcare Law In the News

A few interesting articles from the past two weeks.

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.

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