Representing Physician Clients before
the State Board of Medical Examiners
by Alex J. Keoskey
Any attorney combing through the state departments and agencies section of the Lawyers Diary will likely take note of the multi-layered bureaucracy within the New Jersey Department of Law and Public Safety. Tucked deep within the department's Division of Consumer Affairs is the New Jersey Board of Medical Examiners. When representing physicians in actions initiated by the board, it is imperative counsel have a working knowledge of some key areas of the law.
Fundamental to the task of defending board matters is a solid background in health law, medical malpractice and administrative law. Equally crucial is an understanding of the structure, authority and powers of the board and the state attorney general, especially with regard to their powers of investigation and prosecution. Last, but surely not least, one should have a thorough familiarity with the intricate web of mandatory regulatory reporting. These ‘tripwire' reporting mechanisms will inevitably affect not only the physician/client's licensure, but his or her ability to maintain hospital privileges, controlled dangerous substance (CDS) prescribing privileges and status as an approved provider for health insurers. They will be described in more detail later in this article.
While recognized as the regulatory authority that establishes qualifications of applicants for medical licenses, as well as standards for the practice of medicine in the state, the board has a crucial role not only as a licensing entity but as disciplinarian for all New Jersey physicians. On any given month, a physician, podiatrist or psychiatrist licensed by the board suffers a temporary or permanent loss of his or her license to practice medicine. The allegations against these physicians may range from malpractice or gross negligence to insurance fraud, sexual misconduct, conviction of a crime, or a host of other violations of the laws and regulations governing the practice of medicine.
While providing a full and comprehensive outline of a board action and its consequences is beyond the scope of this article, this brief overview may be helpful in navigating through the procedural thicket.
The Power behind the Board
As an agency of the Division of Consumer Affairs within the Department of Law and Public Safety, almost all of the board‘s actions against physicians are prosecuted within the Office of Administrative Law (OAL). The prosecutor for these matters is always an assigned deputy attorney general (DAG) from the Professional Board Prosecution Section within the Division of Law (DOL). Most of these DAGs are seasoned veterans with a solid grounding in the intricate web of board regulations and laws.
Equally important is the fact that the board operates not just as an agency of the state's attorney general, but as a client. The attorney general serves not only as prosecutor, but as the board's legal counsel. The counseling task is handled by a different section within the DOL- the Professional Boards ounseling Section. While there may arguably appear to be a conflict in this arrangement, the counseling and prosecuting DAGs maintain a ‘wall' of separation regarding active board matters. The attorney general's authority to prosecute board matters derives from the Uniform Enforcement Act (UEA) and the New Jersey Medical Practice Act (MPA). These two statutes overlap in defining the methods of investigating and conducting disciplinary proceedings involving professional licensees.
The MPA grants comprehensive supervisory powers to the board, including subpoena power to compel attendance at board hearings, and to seek penalties for failure to appear or to give testimony. It also has broad rule-making powers to carry out its legislative objectives, and may suspend or revoke a license based on one or more grounds enumerated under the MPA. In fact, the board may even seek the summary suspension of a physician's medical license by demonstrating the physician's practice of medicine constitutes a ‘clear and imminent danger' to the consuming public. Preparing for and defending physicians at these so-called temporary suspension hearings is particularly challenging, given the short time frame defense attorneys are afforded in these emergent actions.
The board employs a full-time medical director "to assist [it] in carrying out its duties pursuant to Title 45."The medical director must be a New Jersey licensed physician, and his or her duties shall include reviewing complaints and reports of "medical malpractice, impairment, incompetence or unprofessional conduct," and assisting the board "in making disciplinary determinations regarding a licensee." The medical director is a non-voting member of the board.
The board also promulgates regulations found in the New Jersey Administrative Code. Physicians are expected to adhere to the standards outlined by the board and to maintain their knowledge of these regulations, even as they may change or be revised.
While the board is the state's watchdog with regard to negligent or wayward doctors, like criminal prosecutors, it relies almost exclusively on tips from the public at large. The board's investigation can only begin when it receives information from an outside source, whether it is the targeted physician's patient, colleague, a hospital supervisor, a county prosecutor, an insurance company investigator, an office employee or even a spouse.
The board has no independent resources to investigate physicians who may be found wanting with regard to quality of care, misconduct, fraud, overprescribing of CDS, patient-physician boundary issues or any number of violations of the MPA, as the board's staff does not include an investigative unit. Instead, the board utilizes the Enforcement Bureau (EB), the investigative agency of the Division of Consumer Affairs, which performs its role under the supervision of the deputy attorneys general assigned to the Professional Board's Prosecution Section. The EB investigators assigned to the board, like the DAGs who counsel and prosecute on behalf of the board, have superior knowledge regarding the practice of medicine in the state, as well as the laws and regulations governing medical practice. Many of these investigators are former healthcare professionals. The reports the EB investigators render on behalf of the board and the AG are detailed, comprehensive and of a high quality.
As stated previously, the investigative powers of the board are broad in scope and often entail records inspections and interviews with patients and coworkers. They may be based upon contemporaneous investigations by federal agencies such as the Drug Enforcement Administration (DEA) or Food and Drug Administration (FDA) or medical experts and investigators employed by insurers. The board's investigative powers are outlined within the UEA.11 Investigated matters come to fruition through a full hearing before the board during its monthly meetings at the Hughes Justice Complex in Trenton (if limited in length and scope), but in most cases through a plenary hearing before an administrative law judge (ALJ) at the OAL.
Pursuant to OAL procedure, the ALJ will draft and file an opinion in the form of an initial decision, which in turn is reviewed by the full board. The board then renders a determination in the form of a final decision, which is appealable through the Appellate Division.
Most physicians seeking legal counsel in relation to a board matter usually receive a notice from the board to appear before the board's Preliminary Evaluation Committee (PEC). The PEC consists of two or three board members who are assigned to hear testimony from the physician after the initial investigation has been launched. It is vitally important that an attorney not only ensure the physician-client is thoroughly prepared before a PEC hearing, but also ensure the client is accompanied to the PEC by competent counsel.
In preparation, an attorney must spend ample time with the client reviewing the medical records or other documents related to the investigation. Unlike other forums, where the attorney can enter objections or dominate the proceeding, the PEC members will not take well to an attorney or physician who interrupts, obstructs or agitates in any manner. Such aggressive representation will not serve the client well. The atmosphere at the PEC conference should be professional, deferential and cooperative. How well, or how poorly, a physician answers questions posed by the DAG and board members present at the PEC conference may well make the difference between the board determining there is no cause for further investigation and recommending an active suspension of the physician's ability to practice.
Other committees of the board serve other functions. The board's Impairment Review Committee deals with physicians struggling with alcohol and drug dependency and/or addiction. The Priority Review Committee (PRC) reviews emergent matters that come onto the board's radar screen.
While this provides a cursory outline of the procedures at the board, there is an underlying concern that must be reckoned with whenever an attorney is negotiating with the board concerning the level of discipline meted out to a physician. More specifically, counsel must take into account whether the final outcome of the negotiation will be a resolution that is made public on either the board's13 or other government watchdog agencies' websites, the most significant of which is the National Practitioner Data Bank.
The National Practitioner Data Bank
The Healthcare Quality Improvement Act of 1986 (HCQIA) included a provision establishing a National Practitioner Data Bank (NPDB). The vision of HCQIA in authorizing the creation of the NPDB was a clearinghouse for reporting board disciplinary actions against licensed physicians, malpractice payments from settlement or satisfaction of a claim or judgment, exclusions or prohibitions from the Medicare and Medicaid programs and professional review actions involving competency or conduct by professional societies.
An essential tool for hospitals, licensing authorities and other healthcare organizations seeking to hire, credential or grant privileges physicians, the NPDB allows those entities access to doctors' disciplinary records before the entities decide to hire them. Before the NPDB, such entities would have to research a physician's background on their own, taking the physician's word that nothing was being concealed. This usually entailed a telephone call to the physician's prior employers, and perhaps the medical boards of each state where the doctor had previously practiced.
Discipline or restrictions against a physician's practice can also be meted out by hospitals and other healthcare entities, which may restrict a doctor's ability to practice by withholding certain privileges directly related to that doctor's specialty. The fact that a relatively simple hospital peer review matter may get reported to the NPDB is not widely known by physicians. However, if a physician's hospital privileges are limited, suspended or revoked for a period of more than 30 days, the hospital must report it to the board and the NPDB. This is an important consideration when representing physicians facing a disciplinary proceeding within a hospital setting.
Insurance companies not only routinely refer alleged insurance fraud matters involving physicians to the board, but under the New Jersey Insurance Fraud Prevention Act the insurer must report insurance fraud actions to the Department of Banking and Insurance (DOBI), which may then assigned a deputy attorney general to file a civil complaint in superior court. Such actions are also reported to the board.
It may be necessary to defend a client facing two concurrent actions by the state attorney general for the same or similar allegations-a civil action in superior court by a DAG assigned to DOBI, and an OAL matter brought by a DAG assigned to the board. It is also not unusual to have board actions accompanied by criminal prosecutions filed in U.S. District Court by assistant U.S. attorneys on behalf of the FDA, DEA or other federal agencies. Needless to say, the legal bills can became quite expensive for such a physician-client.
In that spirit, as with any other legal matter handled for any client, the most pragmatic approach an attorney can have for resolving board matters is to dampen down their client's expectations regarding what can and cannot be accomplished. Physicians generally have little acumen concerning the law, especially litigation. It is simply not a component of their training or education. A physician-client must be made to understand that his or her attorney does not control the process and cannot predict the outcome. An honest cost-benefit assessment must be made and communicated to the client, taking into account the great risks inherent in uncertain outcomes at the OAL and the board, including the effect a NPDB report would have on the physician's ability to maintain provider status for health insurance and managed care entities.
Table pounding and forceful arguments will glean little if the board is convinced the physician was in the wrong. Compromise and willingness to negotiate is key to resolution. Unlike civil matters, in which two parties negotiate from equal bargaining positions before a neutral judge, the deck is stacked in favor of the DAG by virtue of the fact that the board is, in a sense, both judge and prosecutor. The best result comes about when neither party gets exactly what they are seeking. As Robert Louis Stevenson said: "compromise is the best and cheapest lawyer."
Alex Keoskey is a partner at DeCotiis, Fitzpatrick & Cole, LLP in Teaneck, specializing in defending health professionals with regard to medical malpractice claims and regulatory actions. He served as a deputy attorney general within the Division of Law's Professional Board Prosecution Section.