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Protecting Your Practice-What Every Physician Should Know About Avoiding Unwanted Scrutiny from Their Licensing Board

[By ALEX J. KEOSKEY, JD]

Many physicians have witnessed a friend or colleague endure an investigation conducted by his or her state medical licensing board for alleged violations of laws or regulations governing medical practice. Many have been asked to turn over information to such board or provide testimony regarding that friend or colleague. It is never a pleasant experience.   

Board Investigations
Board investigations can involve records inspections, interviews with patients and co-workers, concurrent involvement of federal agencies such as the DEA or FDA, or a full hearing before board members (or an administrative agency assigned to conduct such a tribunal on the board’s behalf).  

The subject of these investigations can involve quality of care, misconduct, fraud, boundary issues or any number of alleged violations. The term "alleged" is often appropriate since the matter itself may be based on fact or fiction, reliable witnesses or pure innuendo. The potential sources of such referral to a board are abundant. The information may have been referred to the board anonymously or through a source known to the doctor involved.

One of the most memorable cases that I handled as a Deputy Attorney General in New Jersey involved an obstetrician who performed a hysteroscopy which resulted in a patient’s death due to hemolysis. The physician involved had utilized sterile water as a distending fluid for the procedure. That referral to the Board, albeit legitimate, came from the physician’s former partner who had sued the accused physician over financial issues relating to their partnership.   

In such cases, referring physicians may initially be motivated by anger or vengeance. However, in many states, such physicians are increasingly being compelled by law to make such referrals. This is due to mandatory notification laws and regulations.

Notification Alarms
Many states have created increasingly strict notification systems that alert other states’ medical licensing boards when a physician’s license is the subject of a regulatory action affecting their practice. How this reporting system works is not much different from an alarm system on a house. Just as home alarms are triggered by untoward events, such as breaking window glass or a forced-in door, alarm systems within the medical regulatory structure are designed to "trip" whenever a physician commits a significant violation of board or hospital rules. These “tripwires”, are laws and regulations, at both the state and federal level, which mandate reporting of these doctors by other doctors who become aware of their misconduct.

A current trend in state law is mandated reporting by a physician of known violations of Board regulations by a fellow doctor or colleague. It has been an effective means to detect violations that is being duplicated in many states. Another is a requirement that hospitals report to the Medical Board whenever a doctor’s hospital privileges are limited in any way.

In the world of private health entities, there are additional tripwires serving the same purpose. All insurance contracts between doctors and their malpractice liability insurer, (as well as Medicare, Medicaid and private health care payer/providers that cover their patients), require that the doctor notify the insurers immediately whenever their license or hospital privileges are affected in any manner. Provisions within such contracts have evolved to require notification whenever a physician has undergone a “restriction, limitation, loss, surrender, modification, censure, suspension, revocation or probation” of his or her license to practice.  In other words, almost any action against the doctor, however mild or routine, that results in a change of privilege or licensing status.

 Physicians should carefully scrutinize the contractual provisions within their agreements with insurers to gain familiarity with the scope of the mandatory reporting requirements within. Violations of these provisions can result in the physician being dropped from coverage.

Prescribing
Over the past decade, the U.S. Drug Enforcement Agency has expanded their investigations to include excessive prescribing of CDS by licensed physicians. Medical Boards have followed suit. The unfortunate result has been fewer and fewer physicians willing to become involved in the field of pain management. Physicians should pay close attention to state and federal laws regarding prescribing, particularly with regard to Schedule II and III prescriptions. Though too numerous to mention here at length, some are worth repeating.

When not in use, prescription blanks should be secured in a secure cabinet or safe with physician-only access. Lost or stolen blanks should be reporting to the DEA immediately. Strict vigilance should be maintained when treating patients with a history of substance abuse. Remain alert for drug-seeking behavior and carefully monitor the patient’s condition, documenting the amount and rationale for every single prescription in clear and unequivocal terms.

Examinations and Medical Recordkeeping
All doctors understand the importance of  complete and concise documentation with regard to a patient’s physical examination. Few components of medical treatment come under more close and searching examination from medical boards. Yet in the current climate of managed care, perhaps no aspect of medicine has been as short-changed. Given the amount of time and resources dedicated to this area in medical education, it is surprising just how many medical exams are found wanting. Many doctors brought before the board on issues unrelated to treatment are chastised for failure to document a full social/family history, physical exam, differential diagnosis or diagnostic plan. 

One of the most wrenching allegations against a doctor is inappropriate touching from patients with little medical acumen or a suspicious state of mind. This can best be avoided by use of a chaperone and sensitivity when examining—particularly with regard to pelvic and rectal exams.

Illegible records of physicians have become stereotypical. Some will say it is a minor and insignificant issue. Having attended board hearings where physicians were asked: “What if you were to be incapacitated?—who will be able to decipher this mess later?”, I respectfully disagree. I’ve also witnessed practitioners struggling, without success, to decipher handwritten notes that they wrote several years back.

Discharge of a patient from care
The release of a patient from care should be handled with care and consideration. Most states have specific requirements regarding information provided to the patient and subsequent care. At a minimum, all states require that adequate notice be provided to a patient regarding the decision to sever the doctor-patient relationship. They also mandate that emergency care be provided until the date on which services are terminated, including the writing of prescriptions. Most states require that the physician assist the patient in finding a qualified physician who can assume care of the patient.

A Growning Trend
Increasing scrutiny will be the trend on every level of health care, as reform results in greater efforts to cut costs and improve quality of care. Physicians must familiarize themselves with the relevant laws and regulations concerning their practice, as well as, the requirements of their contractual agreements with their insurers. An ounce of prevention is worth a pound of cure.

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