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  The Board deems the supervisory relationship to continue “until specifically rescinded by either the physician assistant or the primary physician supervisor in writing.”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

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.

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