Health Law Pointers - Volume XIII, No. 3

Health Law Pointers

Volume XIII, No. 3
Wednesday, November 23, 2011

Brought to you by Hurwitz & Fine, P.C.
Editor: Lawrence M. Ross
[email protected]

As a public service, we are pleased to present this issue of our periodic health law newsletter addressing the specific legal concerns of health practitioners. The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers. If you know of others who may wish to subscribe to this free publication, please feel free to forward it. If you wish to subscribe or unsubscribe, please send an e-mail or call the Editor, Lawrence M. Ross, at (716) 849-8900.

M.D.’s still the ‘good guys’ in health care scene

We live in a turbulent world where everything is scrutinized and it is sometimes difficult to differentiate the “good guys” from the “bad guys.” More likely than not, your physician is one of the “good guys”, possessing great skills and a passion for the profession, but feeling somewhat overwhelmed by an expanding regulatory burden. Physicians today must be conversant with a mottled sea of compliance issues for which there is no clear safe harbor, and spend too much time on after-hours paperwork for which there is no compensation.

Notwithstanding this, your physician is expected to comply with all applicable laws governing the profession, and demonstrate a commitment to professional standards and ethics. Otherwise, even the well-intentioned physician may become ensnared in a net of civil, administrative and criminal proceedings, some of which are highlighted below.

Stark Law. The federal rules (and their State Law counterparts) constrain selected physician referrals to entities providing “designated health services” in which the physician (or an immediate family member) has a financial interest unless a statutory or regulatory exception applies. These rules penalize physicians who are said to be acting out of “financial self-interest” from the very act of making a prohibited referral (or submitting a claim for reimbursement). No bad intent or guilty state of mind must be established, as this law is essentially a strict liability provision. Penalties include civil monetary penalties and a possible exclusion from Medicare and Medicaid.

False Claims Act (FCA). Violation of one statute easily implicates other laws and affects a physician’s managed care panel memberships and licensure. For example, Stark Law violations can expose a physician to liability under the FCA, a federal statute enacted during the Civil War to hinder war profiteering. Nowadays, the law challenges physicians to be transparent and clean in their billing and reimbursement practices. Your physician not only needs to worry about governmental action but must fear private citizens (whistleblowers) who take delight in fighting wrongdoing for the government by filing FCA lawsuits (qui tam suits) and sharing in any settlement. For liability to attach there is no need to document any specific intent to defraud the government; merely that the physician “knew” about the false claim(s), something that is inferred from the universality and magnitude of the problem.

Professional Conduct. Any misstep can result in allegations of professional misconduct being lodged against a physician, and each claim reported to the Office of Professional Medical Conduct must be investigated. There are too many acts or omissions to enumerate, but practicing fraudulently, exploiting patients for financial gain, improper patient referrals, poorly maintained patient records, and improper disclosures of patient information are among the common problems.

Impermissible Disclosures of Patient Protected Health Information. An increasing reliance on computers and the computerization of health care information led to compromises of patient privacy and new legislation, most notably HIPAA. Today, patient health information must be stored securely and sanctions apply if a physician or medical practice impermissibly discloses (even inadvertently) protected health information without proper authorization. A cottage industry has arisen to handle HIPAA complaints, administered by the Office for Civil Rights.

Billing Practices. Physician billing practices should be, but frequently are not, consistent with third party payer (HMO) policies and procedures. Unless medical services are properly documented and the associated claims for reimbursement reflective of the services provided, physician payments are subject to potential audit and/or disallowance. A genuine commitment by physicians to continuous improvement in this area means continuing professional education, periodic and random audits (the so-called “self-audits”) and regularly monitoring of billing procedures. This is a high standard to achieve and many smaller practices and solo practitioners are vulnerable to HMO initiatives intent on uncovering suspected wrongdoing. Post-pay audits seek recoupment of payments made up to 6 years earlier, and these harsh audit techniques can have a deleterious impact, particularly on the financial health of primary care practices that are among the lowest paid in New York State and can therefore least afford an overpayment claim.
Internal Investigations. Many practices lack the capability and wherewithal to investigate suspected wrongdoing “in-house” and must rely on costly outside specialists and legal counsel. A general uneasiness about compliance matters, however, demands a comprehensive and timely review of relevant documentation and records, staff interviews and legal analysis. A record of the investigation is recommended, with corrective measures taken promptly upon completion of the investigation, including the possible reporting of misconduct to outside agencies and payer programs. Under current law, there is an obligation to refund overpayments to Medicare, Medicaid and private insurers. Nonpayment may be a crime. Moreover, different agencies have dissimilar self-reporting disclosure protocols, and the failure to self-report on a timely basis may be penalized.

The physician’s world these days is brimming with examples of formal standards for compliance that are unforgiving and carry a disciplinary wallop. No longer can a physician get by with simply practicing good medicine. Medicine in the 21st Century, like many other professions, has become a full-time business.

                                                            Written by Lawrence M. Ross
                                                            Originally published in the “Buffalo Law Journal”
                                                            Reprinted with permission

Regulatory Trends in Physician Discipline and Licensure Issues

By Andrea Schillaci, Esq.
HURWITZ & FINE, P.C.
1300 Liberty Building
Buffalo, New York 14202
(716) 849-8900
[email protected]

It has been said that “Getting information off the Internet is like taking a drink from a fire hydrant.”  (Mitchell Kapor, founder of Lotus Development Co.)  The sheer volume of free, publicly available information is astounding and growing every day.  Just like any tool, the Internet can be helpful or harmful to licensed health care professionals as it can be an effective means of disseminating good news or can be a platform for patient complaints or other unflattering stories.  Just as its reach is felt in every other area of life, the Internet is both playing a significant role and helping to shape the regulation of medical providers by state licensing authorities in significant ways.

E-filing of court documents is becoming increasingly standard, making litigation documents readily accessible.  Rating services such as Angie’s List are proliferating.  Healthcare consumers, including patients, family members and others increasingly make use of these and other Internet resources to research and select their healthcare professionals, as well as to research diseases and therapeutic treatments.  Another group that makes regular use of these resources is state licensing authority investigators.  The availability of public information, coupled with an increasingly stringent regulatory environment, provides a fertile field for motivated authorities to find investigative leads.  The result is that regulators are bringing more and more enforcement actions against licensed professionals.  The numbers are dramatic.  In 2005, the New Jersey State Board of Medical Examiners reported a total of 98 Board actions, including 37 resulting in loss of license or privilege, 27 resulting in restrictions in license or privileges and 35 resulting in other prejudicial actions.  (Federation of State Medical Boards report, “Trends in Physician Regulation,” April 2006, p. 35.)  For 2009, those numbers increased to a total of 115 Board actions, including 60 resulting in loss of license or privilege, 24 resulting in restrictions in license or privileges and 19 resulting in other prejudicial actions.  (Federation of State Medical Boards report, “Trends in Physician Regulation, Summary of 2009 Board Actions,” 2009.)  In 2005, the Nevada State Board of Medical Examiners reported a total of 18 Board actions, including 11 resulting in loss of license or privilege and 7 resulting in other prejudicial actions.  (Federation of State Medical Boards report, “Trends in Physician Regulation,” April 2006, p. 34.)  For 2009, those numbers increased to a total of 32 Board actions, including 6 resulting in loss of license or privilege, 7 resulting in restrictions in license or privileges and 18 resulting in other prejudicial actions.  (Federation of State Medical Boards report, “Trends in Physician Regulation, Summary of 2009 Board Actions,” 2009.)  The size and structure of state licensing boards vary.  Larger licensing boards with more resources at their disposal may be more likely to discipline physicians.  Political influence may also play a role in the actions of the boards.  Some licensing boards are more independent from state regulation and enjoy special freedom as they are not subject to any non-physician regulation.  (Federation of State Medical Boards report, “State of the States, Physician Regulation 2009,” available at http://www.fsmb.org/pdf/2009_state_of_states.pdf.)

One of the most significant emerging trends in physician discipline and licensure is apparent without resort to statute books.  The Internet is increasingly being used by regulators as a source for potential investigative leads, as well as a hammer in the negotiation of resolution of disciplinary actions.  This trend is apparent in many ways.

The Websites

            The Federation of State Medical Board initiated the practice of distributing the names of the nation’s disciplined physicians.  Information on over 700,000 U.S. physicians and more than 156,000 disciplinary actions since the 1960’s is available online through the Federation Physician Data center.  (Id. at p. 53.)  Specifically, information about professionals is increasingly readily available to the public through the Internet by state licensing authorities.  By going to a state medical board’s website, the public has access to a wealth of information on physicians licensed in that state.  Of course, some state sites are not as “user friendly” as others, but the majority of sites disclose, at a minimum, whether a particular physician has ever been disciplined by the Board.

            On some state websites, the person performing the search must identify a particular physician in order to access information about that physician -- they must know the last name and either the first name, city, county, or zip code of the physician for whom they are searching.  (Montana Board of Medical Examiners, Licensee Look Up System, available at https://app.mt.gov/cgi-bin/lookup/licenseLookup.cgi.)  Many states require at least the first letter or couple of letters of the physician’s last name.  (Illinois Division of Professional Regulation, License Look-Up, available at https://www.idfpr.com/DPR/licenselookup/default.asp; Mississippi State Board of Medical Licensure, Physician Search, available at  http://dsitspe01.its.state.ms.us/msbml/medical.nsf/$$Search?OpenForm; New York State Office of Professional Medical Conduct, Physician Search, available at http://w3.health.state.ny.us/opmc/factions.nsf.)  In other states, all a person has to do is click on a “disciplinary actions” link and he or she will instantaneously be provided with a chronological or alphabetical list of physicians subjected to discipline.  (Alaska State Medical Board, Board Action Reports, available at http://www.commerce.state.ak.us/occ/pmed4.htm; Medical Board of California, Disciplinary Actions/License Alerts, available at http://www.mbc.ca.gov/publications/alerts-actions.html; Colorado Medical Board, Board Actions, available at http://www.dora.state.co.us/medical/boardactions.htm; Louisiana State Board of Medical Examiners, Disciplinary Actions, available at  http://www.lsbme.louisiana.gov/Blog/actionsDetail.aspx; Maryland Board of Physicians, Recent Disciplinary Action Alerts, available at http://www.mbp.state.md.us; Virginia Department of Health Professions, Case Decisions, available at http://www.dhp.virginia.gov/ enforcement/cdecision/cddoclisting.asp.)  Some of these lists go back as far as 20-30 years.  (Alaska State Medical Board, Board Action Reports (26 years); Maine Board of Licensure in Medicine, Adverse Licensing Actions, available at http://www.docboard.org/me/ discipline/dw_priorto1988html (30 years); Virginia Department of Health Professions, Case Decisions, available at http://www.dhp.virginia.gov/enforcement/cdecision/cddoclisting.asp (20 years).)  In some states, statutory law may require an extensive description of every disciplinary action be made available while other states only provide a list of actions.  Many of these lists provide just a brief (but highly prejudicial) description of the disciplinary action and when it occurred.  (Medical Board of California, Disciplinary Actions/License Alerts; Colorado Medical Board, Board Actions; Connecticut Department of Public Health, Regulatory Action Report, available at http://www.ct.gov/dph/lib/dph/communications/rar/pdf/qu_3_10.pdf; Delaware Board of Medical Action and Discipline, Public Disciplinary Actions, available at http://www.dpr.delaware.gov/boards/medicalpractice/documents/dispaction.pdf; Georgia Composite Medical Board, View a List of Public Board Orders, available at http://www.medicalboard.georgia.gov/portal/site/GCMB/menuitem.e429305ad2099d1d6eff626ed03036a0/?vgnextoid=83d71ec599906210VgnVCM100000bf01020aRCRD&vgnextchannel=e49121e7ea1e5210VgnVCM100000bf01020aRCRD; Idaho Board of Medicine, Disciplinary Actions, available at  https://isecure.bom.idaho.gov/BOMPublic/ FormalActionBrowser.aspx?Board=BOM;  Illinois Division of Professional Regulation, License Look-Up; Michigan Department of Community Health, Current Disciplinary Action Reports, available at http://www.michigan.gov/mdch/0,1607,7-132-27417_27529-43008--,00.html; Tennessee Department of Health, Disciplinary Actions, available at http://health.state.tn.us/boards/disciplinary.htm.)  Details of the reprimand, type of case and if there was a voluntary surrender are limited, which can leave much to the imagination.  However, the overwhelming trend is for states to provide a link to a PDF copy of the Board’s Order, which then gives detailed factual background of the case and the sanctions imposed.  (Arizona Medical Board, Recent Actions, available at http://www.azmd.gov/GLSPages/RecentActions.aspx; Florida Department of Health, Historical Discipline Reports, available at http://doh.state.fl.us/mqa/enforcement/discipline_reports.html; Medical Licensing Board of Indiana, License Litigation, available at http://www.in.gov/apps/pla/litigation/searchresults.aspx; Kansas Board of Healing Arts, Board Actions, available at http://www.ksbha.org/boardactionsA.html; Louisiana State Board of Medical Examiners, Disciplinary Actions; Maine Adverse Actions; Maryland Disciplinary Reports; Missouri State Board of Registration for the Healing Arts, Licensee Search, available at https://renew.pr.mo.gov/licensee-search.asp; New Jersey State Board of Medical Examiners, Public Disciplinary Notices, available at http://www.state.nj.us/lps/ca/bme/ disnotice/bmepdn.htm; New Mexico Medical Board, Physician Profiles, available at http://www.docboard.org/nm; New York State Office of Professional Medical Conduct, Physician Search; North Carolina Medical Board, Recent Board Actions, available at http://www.ncmedboard.org/disciplinary_reports/recent_board_actions; Virginia Department of Health Professions, Case Decisions; Vermont Board of Medical Practice, Board Actions, available at http://www.healthvermont.gov/hc/med_board/actions.aspx; Rhode Island Board of Medical Licensure and Discipline, Disciplinary Actions, available at http://www.health.ri.gov/lists/disciplinaryactions; West Virginia Board of Medicine, Board Public Hearings, available at http://www.wvbom.wv.gov/publichearings.asp; Wisconsin Medical Examining Board, Order/Disciplinary Actions, available at http://drl.wi.gov/ category.asp?linkcatid=8&linkid=10&locid=0.)  Some states even provide consumers with PDF copies of the entire disciplinary file, including the notice of hearing, the formal complaint and the answer, in addition to the order.  (Louisiana State Board of Medical Examiners, Disciplinary Actions; North Carolina Medical Board, Recent Board Actions; Virginia Department of Health Professions, Case Decisions.)  States that do not offer copies of the order will likely be moving in that direction, as Massachusetts alerts consumers on its website that it will soon be providing copies of actual disciplinary actions.  (Massachusetts Board of Registration in Medicine, Disciplinary and Other Board Actions, available at http://www.mass.gov/?pageID=eohhs2terminal&L=5&L0=Home&L1=Consumer&L2=Physical+Health+and+Treatment&L3=Physicians&L4=Complaint+Process&sid=Eeohhs2&b=terminalcontent&f=borim_p_discipline_actions&csid=Eeohhs2.)

            In September 2013, a new database will be available online which discloses information about gifts and other compensation physicians accept.  This comes under the new Physician Payments Sunshine Act which aims to lower health care costs and lower payments.  Vermont, one of three states that have already implemented this policy, reported a decrease of payments to physicians by 13%.  Other states such as Massachusetts and Minnesota have outlawed many forms of corporate gifts.  Although the Act stops short of banning gifts, it will afford people a better understanding of how companies interact with physicians.  Information about what services where exchanged for the payment will be provided so a patient will be aware if a doctor may have an interest in a certain company or product.  (Weintraub, Arlene, “New Health Law Will Require Industry to Disclose Payments to Physicians,” Kaiser Health News, April 26, 2010, available at http://www.kaiserhealthnews.org/Stories/2010/April/26/physician-payment-disclosures.aspx.)
Physician Profiles

            In addition to disciplinary actions, the websites also enable consumers to search for background information on licensed physicians.  These “profiles” provide consumers with extensive background information on each physician. It has been the trend for states to enact statutes that require, as a condition for licensure, that a physician provide information to the Board for a physician profile to be made available to the public.  Many Boards provide these profiles on their websites, which consumers can access when they conduct a license search.  Notably, Utah advertises to consumers that there is an Apple iPhone application which users can download to search for licensees on their iPhones.  (Utah Division of Occupational and Professional Licensing, DOPL News, available at http://www.dopl.utah.gov.) 

States such as Arizona, California, Florida, Georgia, Illinois, Massachusetts, New York, Texas, Vermont, and Virginia have onerous laws mandating the release by physicians of extensive and detailed information that physicians must provide to the state medical boards so that the boards can then publish it in the form of physician profiles.  (Arizona Revised Statutes  § 32-1403.01 (2011); California Business and Professions Code §§ 800, 803.1 (2011); Florida Statutes § 456.041 (2010); Official Code of Georgia Annotated § 43-34A-3 (2011); 25 Illinois Compiled Statutes 60/24.1 (2011); Annotated Laws of Massachusetts, General Laws, ch. 12 § 5 (2010); New York Public Health Law § 2995-a (2011); Texas Occupational Code § 154.006 (2010); 26 Vermont Statutes § 1368 (2010); Virginia Code Annotated § 54.1-2910.1 (2010).)  In addition to basic information such as where they practice and where they went to medical school, the information required by statute frequently includes the disclosure of criminal backgrounds, malpractice judgments, settlements or arbitration awards where a payment was made to the complaining party, final board disciplinary actions, and any disciplinary actions taken against the physician by a hospital with which he or she is affiliated.  (Id.)

In contrast, some states have resisted providing personal information.  In Missouri, reform is under way as the state has been found to be one of the most lax in the regulation of doctors.  The Missouri legislature recently voted on a new bill that will give patients more information about doctors such as their education, certifications, and disciplinary actions.  Physician profiles are compiled from a variety of sources.  The accuracy of the profiles varies from state to state.  Disclaimers may be provided on profiles stating the source of the information, such as if it was self-reported by the practitioner or if it was verified by the licensing board.  With regard to how much of this information physicians must reveal, in the strictest of scenarios, such as in New York, any criminal convictions within the past ten years must be reported.  (N.Y. Pub. Health Law § 2995-a.)  However, most states require only either high level crimes, such as felonies and class "A" misdemeanors, or crimes of “moral turpitude,” or which may be directly related to a physician’s competency to practice medicine.  (A.R.S. § 32-1403.01; Cal. Bus. and Prof. Code § 456.041; 225 ILCS 60/24.1; ALM GL, Ch. 23 § 5; Tex. Occ. Code § 154.006; Va. Code Ann. § 54.1-2910.1.)

            With regard to how much information physicians must report when it comes to medical malpractice claims, some states give leeway in reporting by only requiring a doctor to report the claim if the award or judgment was in excess of a certain amount of money, or if they had a certain number of settlements, judgments or awards.  (Cal. Bus. and Prof. Code §§ 800, 803.1 (requiring physicians to report judgments or settlements in excess of $3,000); Fla. Stat. Ann. § 456.041 (requiring physicians to report any paid claim in excess of $5,000 within the past 10 years); O.C.G.A. § 43-34A-3 (requiring physicians to report final judgments or arbitration awards in excess of $100,000 and settlements in excess of $300,000); N.Y. Pub. Health  § 2995-a (all judgments and awards where payment was made to the complaining party in the past ten years, and all settlements in which payment was awarded to the complaining party if the total number exceeds two or if the commissioner determines any such settlement could be relevant to patient decision making concerning health care quality) (emphasis added).)   For instance, in Florida, physicians must report any paid claim over $5,000 within the past ten years.  (Fla. Stat. Ann. § 456.041.)  In California, a licensee must report malpractice settlements over $30,000 and judgments or arbitration awards of any amount if the licensee does not possess professional liability insurance.  (Cal. Bus. and Prof. Code § 801.01(b)(2).)  However, in the strictest jurisdictions, such as Arizona, Illinois and Vermont, physicians must report all awards, settlements or judgments within the past five or ten years -- regardless of amount or number -- where the complaining party received a payment either from the physician or the physician’s insurance provider.  (A.R.S. § 32-1403.01 (all settlements, awards and judgments where payment was made to the complaining party in the past five years); 225 ILCS 60/24.1 (all settlements, awards and judgments where payment was made to the complaining party in the past five years); 26 V.S.A. § 1368 (all settlements, awards and judgments where payment was made to the complaining party in the past ten years).)  Most states that provide this information, however, provide it with disclaimers generally to the effect of:

The settlement of a medical malpractice action may occur for a variety of reasons that do not necessarily reflect negatively on the professional competence or conduct of the            doctor.  A payment in settlement of a medical malpractice action does not create a presumption that medical malpractice occurred.  (A.R.S. § 32-1403; Fla. Stat. Ann. § 456.041; O.C.G.A. § 43-34A-3; 225 ILCS 60/24.1; N.Y. Pub. Health Law § 2995-a; 26 V.S.A. § 1368.)

However, the fact that there is a disclaimer does not change the fact that patients have access to a wealth of information about their physicians at their fingertips. 

In North Carolina, a 2007 state law which authorized the posting of additional information resulted in huge increases of web traffic to the medical board’s website. Additional information included final suspensions or revocations of hospital privileges, felony convictions, misdemeanor convictions involving offenses against a person, and offenses of moral turpitude and those involving drugs or alcohol or violations of public health and safety codes.  Visits which totaled around 9,000 on a typical Tuesday soared to more than 63,000 the day after the additional information was posted online.  North Carolina’s medical web site now ranks as one of the most comprehensive in the nation.  (Landers, Susan J., “North Carolina Includes More Disciplinary Actions in Physician Profiles,” amednews.com (the American Medical Association’s online publication of American Medical News), December 30, 2009, available at http://www.ama-assn.org/amednews/2009/12/28/prse1230.htm.)

Increasing Emphasis of Patient Confidentiality

President Obama’s health care reform has brought about many changes.  In 2009, the Senate and House of Representatives passed the American Recovery and Reinvestment Act, which includes provisions relating to Health Information Technology.  A goal was set for the availability of full digital health records by 2014.  In order to strengthen the enforcement of patient privacy and keep health care information private, one part of this Act includes the first ever use of civil monetary penalties for a HIPAA Privacy Rule violation.  Congress increased the HIPAA violation penalties under the Health Information Technology for Economic and Clinical Health (“HITECH”) Act, which amended HIPAA.  New penalties range from $100 to $50,000 per day of violation, with an annual cap of $1.5 million for the same violation in any one year.  Data privacy and security requirements will be imposed upon other entities such as health care providers and pharmacies that are subject to HIPAA.  The HITECH Act allows the state’s Attorney General to undertake civil actions for HIPAA privacy and security violations.  Twenty-two billion dollars will be used to advance health care information technology by the deadline in 2014.

Reporting Requirements

Not only has state law increased the information available and readily accessible to the public, but the boards have expanded reporting requirements, placing the onus on entities such as hospitals, insurance carriers, health maintenance organizations and court clerks, among others, to report disciplinary actions, resignations, and medical malpractice claims, and imposing civil and even criminal penalties on those entities for failure to do so.  (Cal. Bus. and Prof. Code §§ 801, 802.1, 802.5, 803.5, 803.6 (2011) (imposing reporting requirements on professional liability insurers, physicians themselves if they are charged with a felony, coroners if they suspect a death was caused by a physician’s negligence, the district attorney or any prosecuting entity when a physician has been charged with a felony and the clerk of the court must send over the felony preliminary hearing transcript); N.Y. Pub. Health Law § 2803-e (2011) (imposing reporting requirements on hospitals for discipline or resignation); N.Y. Ins. Law § 315 (2011) (imposing reporting requirements on medical malpractice and professional liability carriers and stating that failure to comply shall be deemed a misdemeanor); N.Y. CPL § 380.85 (whenever a physician is sentenced for a crime, the court shall deliver a copy of certificate of conviction to the Office of Professional Medical Conduct); Va. Code Ann. § 54.1-2909 (2010) (imposing reporting requirements on all health care institutions, malpractice insurance carrier of any person who is the subject of a judgment or settlement, any health maintenance organization licensed by the Commonwealth); West Virginia Code § 30-3-14 (2011).)  In Washington D.C., there are distinct reporting requirements for the physician, who must self-report an incident within sixty days, and for healthcare providers, who must report adverse incidents within ten days as well as report if a physician resigns during the pending investigation.  (D.C. Code § 3-1205.13a (2007).)  New York has a statute which provides that a medical malpractice or professional liability carrier’s failure to report any action or award to the Board where the complaining party is paid constitutes a misdemeanor.  (N.Y. Ins. Law § 315.) 

West Virginia, perhaps the state with the most comprehensive reporting statute, imposes reporting requirements on the chief executive officer of every hospital for any sort of disciplinary action, resignation or legal action.  Further, (1) any managed care organization that provides a formal peer review process must report after conclusion of review or commencement of any resultant legal action; (2) any professional society comprised of physicians which takes disciplinary action against a member; (3) every person or entity providing professional liability insurance to a physician; and the clerk of the court in medical malpractice actions or civil actions where the physician is determined to have rendered care below the applicable standard; and the clerk of the court where a physician is convicted of a felony or any crime involving alcohol or drugs.  (W. Va. Code § 30-3-14.)  The Board enforces these reporting requirements through levying fines between $1,000 and $10,000.  (Id.)

            New York most recently expanded reporting requirements for physicians who are disciplined by the Office of Professional Medical Conduct (OPMC).  Physicians whose licenses have been revoked or annulled without stay are now required by the OPMC to notify their patients, each health care plan with which the licensee contracts or is employed, and each hospital where he or she has privileges.  (N.Y. Pub. Health Law § 230.)  In New Jersey, the Board takes it upon itself to notify the hospitals and health maintenance organizations with which the physician is associated in the event of a revocation or limitation on a physician’s license and in the event of a disciplinary order if the Board requested information from one of those entities.  (N.J. Stat. § 45: 9-19.13 (2011).)

            The language of the various statutes reveals that there is a trend toward medical boards reserving the right to take information gleaned from the reporting requirements and use it as a basis on which to formulate a complaint against a licensee, even though -- if it is a medical malpractice claim or a criminal conviction -- the physician is already subject to civil or criminal penalty, or if it is with a hospital, presumably the physician was already reprimanded and/or came to some sort of agreement with the hospital.  (Id.; Conn. Gen. Stat. § 20-13j (2010) (stating that although pending medical malpractice actions shall not be disclosed to the public, this subsection shall not be construed to prevent the department from investigating and disciplining a physician on the basis of pending actions); D.C. Code § 3-1205.13a (2011); 225 ILCS 60/24.1; Ann. Laws of Mass. Ch. 112 § 5 (2010); Nevada Revised Statutes § 630.3068 (2010); N.J. Stat. § 45:9-22.23.)  Thus, the trend toward more expansive reporting requirements gives the state boards increased power to investigate incidents which may not have been reported to them otherwise in a complaint by a patient or a hospital, providing them with an additional basis on which to commence further disciplinary actions against the physicians. 

From what you have read so far, not much appears to remain confidential in terms of licensure and physician discipline -- be it by the board, a hospital or a court of law -- since all states publish this information on their websites and/or in physician profiles.  However, with regard to the boards’ complaint processes, informal complaints made by a patient generally remain confidential unless they lead to either a formal complaint filed by the board and/or lead to formal discipline by the board.  (243 Code of Mass. Reg. 1.02 (2010); Minn. Stat. § 147.01 (2010); Nev. Rev. Stat. § 630.311; N.N. Stat. Ann. § 61-6-34 (2010); N.D. Cent. Code § 43-17.1-08 (2011); Ohio Rev. Code § 2305.252; Ohio Rev. Code § 4731.22; R.I. Gen. Laws § 5-37-5.2 (2011).)  The reports, information or records, including material developed by the board during an investigation, are confidential.  (Code of Mass. Reg. 102; Minn. Stat. § 147.01 (2010); New Hampshire RSA Tit. XXX, ch. 329:18 (2010); Vermont CVR 13-141-001 Part 19; Tex Occ. Code § 164.007.)

Once a board files a formal complaint against a physician, the fact that the formal complaint has been filed by the board is generally public information in states such as Maryland, Rhode Island, New Hampshire, New York, Massachusetts, and Maine.  (Md. Code Ann. § 14-411 (2011); NH RSA Tit. XXX, ch. 329:18; R.I. Gen. Laws § 5-37-5.2 (2011); N.Y. Pub. Health Law § 230; 243 Code of Mass. Reg. 1.02; Maine Rev. Stat. Ann. § 8003-A.)  Not only is the fact that a formal complaint has been filed made available to the public, but the charges, upon a vote of the committee, are also made available to the public.  (N.Y. Pub. Health Law § 230.) 

Any proceedings held thereafter are subject to the states’ Administrative Procedure Acts, which means that hearings are open to the public, the final determination of the board is public, and any documents introduced into the proceedings, such as the complaint, are public.  (Code of Ala. § 34-24-361.1 (2010); Cal. Bus and Prof Code § 495 (2011); Kansas Stat. Ann. § 65-2898a; Code of Mass. Reg. 102; Mich. Admin. Code R 338.1627 (2011); Minn. Stat. § 147.01 (2010); NH RSA Tit. XXX, ch. 329:18; NY Pub Health § 230; R.I. Gen. Laws § 5-37-5.2; R.I. Gen. Laws § 5-37-5.2 (2011); Tenn. Code. Ann. § 63-6-214 (2010); Rev. Code. Washington § 18.130.110.)  Thus, even in cases where the board files a formal complaint against a physician but later dismisses or resolves the action without adjudication, the closed complaint files, which contain the complaint and other information, are still, in some states, in the public record.  (243 Code of Mass. Reg. 1.02; Maine Rev. Stat. Ann. § 8003-A; N.Y. Pub. Health Law § 230.)

Recently, in Rhode Island, a physician was disciplined by the state board for posting confidential information on Facebook. The physician was found guilty of unprofessional conduct after posting information about her emergency room experiences. Although the patient’s name was not posted, the Board believed there was enough information to reveal the patient’s identity.

Conclusion

            Although the reasons for physician discipline have not changed, a new level of regulation has evolved. The trend toward increased disclosure of physician disciplinary information shows no sign of reversal.  As professional medical services are increasingly seen by some as consumer commodities, there will continue to be an increasing demand for information from the public.  Regulators are happy to meet this demand for information by requiring it from health care professionals.  The challenge is to insure that whatever information is disseminated is, in fact, accurate.  It is incumbent on professionals to remain vigilant as to what information is being provided, interpreted and published, as failure to address inaccurate or misleading information can have significant negative consequences.  

Originally published in DRI’s “For the Defense”
                                                            Reprinted with permission

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