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.”

Colorado Extends Transparency Act To All Licensed Health Care Providers

In 2007, Colorado enacted the Michael Skolnik Transparency Act, which directed Colorado’s Department of Regulatory Agencies to create a database of information on physicians. The stated purpose of the Act was to provide transparency to the public regarding the competency of their doctors and to permit Coloradans to make informed health care decisions. The Skolnik Act was one of the first of its kind in the country, and required doctors to make public a broad range of information, including previously confidential information such as involuntary hospital privilege restrictions and malpractice settlements.

In 2010, the General Assembly enacted new legislation to expand the scope of the Transparency Act to include not only medical doctors, but most licensed or registered health care provider within Colorado. The Act covers audiologists, acupuncturists, podiatrists, chiropractors, dentists, dental hygienists, hearing aid providers, physician assistants, mid-wives, nurses, optometrists, physical therapists, psychologists, social workers, professional counselors, marriage and family therapist, addiction counselors and unlicensed psychotherapists.

As a practical matter, the new Medical Transparency Act goes into effect for non-physician health care providers July 1, 2011. For all licensing/registration cycles after July 1, 2011, these health care providers must provide certain information to their respective regulatory agencies. The information that must be provided includes such things as Board certifications and specialties; affiliations with or clinical privileges held at hospitals or health care facilities; health care-related business ownership interests; disciplinary actions in other states or countries; health care-related employment contracts; DEA registration surrenders; criminal convictions and malpractice settlements and judgments. Penalties for non-compliance include administrative fines of up to $5,000, and discipline for unprofessional conduct.

The precise reporting requirements for each board will vary and will be generally dictated by DORA policies, and will be dependent on individual circumstances. While at the attorney general’s office, I co-authored the Medical Board’s policy compliance with the Transparency Act.

The entire Medical Transparency Act of 2010 can be viewed here.

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