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.

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 Naturopath Bill Fails

The Colorado House Health and Environment Committee voted down HB 1173 which would have created a registration process for naturopathic doctors in Colorado. The bill was defeated on a 7-6 vote along party lines with Republicans opposing the bill.

A March 1, Colorado News Agency article – Regs On Naturopathys Rejected in Committee — discusses the bills defeat. In reading the article, I find it interesting that all parties (including the bill’s sponsor) are operating under the misconception that naturopaths and other “alternative healers” may legally provide care to patients in Colorado. Most seem to believe that the Medical Practice Act is merely a title protection statute that only prevents the unlicensed from calling themselves “doctor.” While using the term “doctor” in connection with the diagnosis or treatment of an illness or condition is illegal, with limited exceptions, charging for health care without a license is illegal in Colorado — whether you call yourself a doctor or not. Although hundreds of alternative providers continue to treat clients in the state, it is clear that the practice is prohibited under the Medical Practice Act. That alternative providers continue to treat clients is a product of the Colorado’s lack of resources and lack of enforcement, rather than the legality of the practice.

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. ยง 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