ARIZONA

ARIZONA MEDICAL BOARD ADOPTS DISCIPLINARY RULES

During the course of the February 2003 Regular Session meeting, the Arizona Medical Board voted unanimously to adopt disciplinary Rules. The Arizona Medical Board has broad authority conferred by the Medical Practice Act to discipline physicians. When the Board finds that a physician committed an act of unprofessional conduct, the Board will then decide whether the conduct rises to the level of discipline, or merits a non-disciplinary action. If the conduct warrants discipline, the Board will look to its Rules and consider aggravating and mitigating circumstances, as well as the nature of the complaint.

Although each case is evaluated on its merits, the Rules provide a framework for consistent disciplinary action. A particular case may merit greater or lesser discipline than that contained in the Rules, depending on the circumstances of the individual case. Also, two physicians may receive differing discipline even though their cases involve the same issue or conduct. For instance, the Board may review two cases involving a surgical error, but because of mitigating and aggravating circumstances and factual differences in the cases, may impose varying discipline in the two cases.

The Board intends that the Rules give the public and physicians an insight into the how the Board determines whether it will impose discipline and what that discipline may be.

Reprinted from the March/April 2003 issue of The Arizona M.D. Update, published by the Arizona Medical Board

CALIFORNIA

LEGISLATION MAY HELP DETER ‘DOCTOR SHOPPING’

On August 31, 2002, Governor Davis signed Assembly Bill 2655 (Chapter 345, Statutes of 2002) which extends the Controlled Substance Utilization Review and Evaluation System (CURES) program for five years and makes a number of changes related to the CURES program.

The CURES program is the system used to electronically monitor the prescribing and dispensing of Schedule II controlled substances by all practitioners authorized to prescribe or dispense these controlled substances. This program was implemented as a pilot project in July 1997 to assist regulatory and law enforcement agencies in their efforts to control the diversion and resultant abuse of Schedule II controlled substances.

Beginning January 1, 2003, pharmacists and all licensed health care practitioners eligible to obtain triplicate prescription forms are able to make a written request for a CURES profile from the Department of Justice (DOJ) for their patients.

The profile prepared by DOJ will provide the pharmacist and the practitioner with a list of all Schedule II controlled substances that have been prescribed to this patient in the last three months, the name of the practitioner issuing the prescription and the pharmacy where the prescription was filled. The request must be made in writing by the pharmacist or practitioner and submitted to DOJ.

This additional element to the CURES program is intended to help practitioners identify patients who may be trying to abuse Schedule II controlled substances by obtaining prescriptions from more than one practitioner and then having the prescriptions filled by different pharmacies. The profile will help the practitioner find out a particular patient’s quantity and frequency of use of Schedule II prescription drugs. It also will assist the practitioner in determining if a patient has altered the quantity of drugs prescribed from the original order or if illegal orders have been made in the practitioner’s name.

This legislation also permits the DOJ to send a CURES profile to a practitioner and pharmacist concerning patients whose CURES profiles indicate the possibility of prescription drug abuse. Once DOJ has identified the patients who appear to have an abuse problem, they will send a letter to all practitioners and pharmacies listed on the CURES profile for that patient. The letter will inform the practitioner and pharmacy that the information being provided is confidential and is intended for the practitioner’s assessment.

The letter requests the practitioner to review his/her records for the patient in question to determine whether the person is their patient and whether the practitioner prescribed the drugs shown on the profile.

The practitioner should use his or her professional expertise to evaluate the patient’s care and, if deemed necessary, assist patients who may be abusing controlled substances. The intention of this information is not to question a practitioner’s conduct, but to make them aware of the patient’s quantity and frequency of use of Schedule II prescription drugs. This letter is for the practitioner’s information and will not require a response to DOJ.

Questions regarding this new law can be submitted to the DOJ, Triplicate Prescription Program, at (916) 227-4051.

Legislative Update

The following legislation affecting physicians licensed in California has been chaptered into law and took effect on January 1, 2003 (bills with an urgency clause take effect upon enactment). For additional information on all of these bills, please contact the Web site maintained by the Legislative Counsel of California at www.leginfo.ca.gov (click on “Bill Information”).

AB 269 (Correa, Chapter 107) This bill states that the highest priority of the Medical Board of California in performing its licensing, regulatory, and disciplinary functions is the protection of the public. This same language was enacted for the other boards, commissions and bureaus within the Department of Consumer Affairs.

AB 2385 (B. Campbell, Chapter 816) This bill requires the board to keep a copy of a complaint it receives concerning the unprofessional conduct of a licensee for seven years or until the statute of limitations for filing a complaint against a negligent licensee has expired, whichever period is shorter, if the board finds after an investigation that there is insufficient evidence to proceed with disciplinary action. This includes complaints where disciplinary action is not taken.

SB 1950 (Figueroa, Chapter 1085) This bill requires the following:

  1. amends the law to exclude information disclosed per Business and Professions Code (B&P) section 803.1 from being maintained in a physician’s central complaint file at the medical board.

  2. adds civil judgments, even if vacated by a settlement after entry of the judgment, to be included as information to be reported to the board;

  3. adds a new requirement that attorneys at the time of filing a civil complaint serve a copy of the complaint or demand upon the medical board, which shall be treated as a complaint;

  4. adds the medical board to B&P Code section 803.1 disclosure of information and adds public disclosure of settlements for high- and low-risk specialties, board specialty, and postgraduate training;

  5. adds a Health Care Professional Disaster Response Act to allow inactive licensees to apply for reinstatement in times of declared emergency;

  6. increases the membership of the board in its Division of Medical Quality by two public members appointed by the Governor;

  7. extends the date of the board/Act to become inoperative/sunsetted to July 1, 2005, and it is repealed January 1, 2006;

  8. changes the numbers needed for a quorum of the Division of Medical Quality and board;

  9. specifies that B&P Code section 803.1 information shall be dis closed on the board’s Web site;

  10. enhances penalties for the unlicensed practice of medicine;

  11. allows the Division of Licensing to determine if physicians licensed out of state meeting specific criteria are eligible for licensure;

  12. requires the Director of the Department of Consumer Affairs to appoint, prior to March 31, 2003, an enforcement program monitor who will evaluate, for two years, the board’s disciplinary system and report his or her findings to the Legislature, the board, and the Department of Consumer Affairs;

  13. requires that decisions which contain findings of fact that the licensee engaged in multiple acts of sexual contact as defined in B&P Code section 729 shall contain an order for revocation that cannot be stayed by the administrative law judge;

  14. allows the board’s Diversion Program to order a competency examination;

  15. requires the board to adopt emergency regulations defining the standard of care and level of supervision for licensed midwives.

For more information on this bill, please refer to the October 2002 Action Report.

SB 2019 (Speier, Chapter 683) This bill authorizes a licensing agency to cite, fine, and deny the license application or renewal for a healthcare practitioner who is in default on any specified educational loan or service obligation. Proceeds from the fines would be deposited in a special account within the fund.

AB 2655 (Matthews, Chapter 345) This bill extends the life of the Controlled Substance Utilization Review & Evaluation System (CURES) program through July 1, 2008. This bill allows a physician or pharmacist to make a written request to the Department of Justice for the history of controlled substances dispensed to an individual under his or her care.

SB 577 (Burton, Chapter 820) This bill provides that a person who discloses to a client that he or she is not a licensed physician and complies with specific requirements regarding the practice of medicine shall not be in violation of medical licensing laws.

SB 801 (Speier, Chapter 15) This bill requires that a hospital or surgical clinic must include in its formal plan an evaluation, an assessment and a method to eliminate or substantially reduce preventable medication-related errors. This bill requires the Department of Health Services to monitor the implementation of each plan beginning January 1, 2005.

AB 2194 (Jackson, Chapter 384) This bill requires all residency programs in obstetrics and gynecology to comply with the program requirements for residency education in obstetrics and gynecology of the Accreditation Council for Graduate Medical Education (ACGME), and that in addition to education and training in in-patient care, the program be geared toward the development of competence in the provision of ambulatory primary health care for women, including, but not limited to, training in the performance of abortion services.

SB 1558 (Figueroa, Chapter 263) This bill authorizes a certified nurse-midwife, a nurse practitioner, and a physician assistant to sign for the request and receipt of complimentary drug and dangerous devices samples that have been identified in the standard procedure, protocol or practice agreement approved by a physician. No provision of this bill is intended to expand the scope of practice of a certified nurse-midwife, a nurse practitioner, or a physician assistant.

Reprinted from the February 2003 issue of the Action Report, published by the Medical Board of California

OHIO

HEALTH CARE LEADERS JOIN TO PUT OHIOANS FIRXST

In response to the Institute of Medicine’s 1999 report on medical errors and prompted by Governor Bob Taft, Ohio’s top health care leaders have joined forces as the Patient Safety Discussion Forum (PSDF) to identify and promote safeguards within the state’s health care system. The group, representing state health care regulators, professional associations, and medical educators, is a cooperative venture between the public and private sector.

Medication errors have been identified as being among the most common health care mistakes, and one of the major causes of those errors is the ongoing use of potentially dangerous abbreviations in written and transcribed orders and prescriptions. Ohioans FiRxst, the PSDF’s introductory initiative in Ohio, is aimed at reducing medication errors, and will be a springboard to other projects promoting patient safety. The goal of the Ohioans FiRxst initial project, scheduled for launch during Patient Safety Awareness Week (March 9–10, 2003), is to eliminate the use of these five potentially dangerous abbreviations by 2005.

To aid in that effort, Ohioans FiRxst has developed a “toolkit” to help organizations and medical professionals eliminate the use of the five targeted abbreviations by recommending alternative ways for providers to convey their intended meaning. The toolkit, summarized below, along with references, links and other useful materials will be available on the Ohioans FiRxst website, www.ohioansfirst.org, when the Web site goes online in March 2003.

Toolkit Summary

Toolkit Summary
Toolkit Summary

Reprinted from the Winter/Spring 2003 Your Report, published by the State Medical Board of Ohio

PENNSYLVANIA

PHYSICIAN DISPENSING OF PRESCRIPTION MEDICATION

Physicians are authorized to dispense prescription medications to their own patients. The board views that this practice is appropriate when directly related to the management/treatment of the patient. The authorization is contained in an exemption from the Pharmacy Act. The purpose of the exemption is to allow for proper management of the patient’s medical needs. It is not intended to provide for physician practice of retail pharmacy as a profit center for the practice.

The Pharmacy Act, Section 8(2) states that it shall be unlawful for “Any person not duly licensed as a pharmacist, pursuant to section 3 hereof, to engage in the practice of pharmacy, including the preparing, compounding, dispensing, selling or distributing at retail to any person any drug, except by a pharmacy intern or such other authorized personnel under the direct and immediate personal supervision of a pharmacist: Provided, however, that nothing herein shall be construed to prevent a duly licensed medical practitioner from dispensing, compounding or otherwise giving any drug to his own patients after diagnosis or treatment of said patient, if such compounding, preparing and dispensing is done by said licensee himself…” The Pharmacy Act further defines “medical practitioner” to mean a physician, dentist, veterinarian or other individual duly authorized and licensed by law to prescribe drugs. This would include physician assistants and certified registered nurse practitioners.

In addition, Section 25.93 of the Controlled Substances, Drugs, Devices and Cosmetics Regulations requires “The label on a dispensed drug container shall include the name of the drug, using abbreviations if necessary, the quantity, and the name of the manufacturer if the drug is a “generic” drug. In those situations where a practitioner specifically indicates that the name of the drug should not appear on the label, the recognized national drug code number should be placed on the label if such a number is available for the product. When a drug is dispensed by a practitioner other than a pharmacist, the label shall also bear the name and address of the practitioner, the date dispensed, the name of the patient, and the directions for use of the drug by the patient.”

Reprinted from the Winter 2002 Pennsylvania State Board of Medicine Newsletter

TEXAS

TEXAS PHYSICIANS HAVE BEEN REMOVED FROM PRACTICE FOR STANDARD CARE ISSUES

Contrary to reports that continue to appear in the Texas media, the Texas State Board of Medical Examiners (TSBME) has revoked, obtained surrenders or indefinitely suspended the licenses of at least 27 physicians in the past five years for actions directly relating to patient care problems. The agency has analyzed disciplinary data from Fiscal Years 1998, 1999, 2000, 2001, 2002 and the first three months of fiscal year 2003, which began September 1, 2002. Of the 27, 11 physicians’ licenses were revoked or permanently surrendered and 16 physicians are under indefinite suspension while the board pursues permanent resolution of the cases.

Because TSBME does not have a category of “medical error,” the standard is that these cases must involve direct patient care in which the board determined that the physician’s knowledge, judgment, professionalism and/or skill were lacking. The following criteria were used to identify the actions:

  • the licenses were revoked, surrendered or indefinitely suspended, and the physician is currently out of practice;

  • the allegations were for violations of the Medical Practice act directly related to patient care, such as misdiagnosing or improperly treating or failure to practice medicine in an acceptable manner; and the board orders provide sufficient findings and conclusions to verify that the action was a result of standard of care issues.

There are other actions related to patient care not included in this conservative definition, including actions like Internet prescribing, drug and alcohol abuse, and nontherapeutic prescribing along with sexual misconduct.

While being consistently underfunded and understaffed, the board has dramatically increased its regulatory actions, especially in the past year. Complaints to the board against Texas doctors have nearly doubled since 1996, as have the numbers of Board investigations and disciplinary actions. In the past year, TSBME has taken 241 disciplinary actions, compared to 131 in the 12-month period of fiscal year 1997. Furthermore, there were 42 revocations/surrenders last year, compared to 17 in fiscal year 1997. The Board issued administrative penalties (fines) totaling $356,380 in 2002, compared to $84,550 in FY-1997.

This board is committed to using its regulatory authority to protect the public, and uses a variety of means to do so, including careful scrutiny of licensure applicants and swift and appropriate disciplinary actions when necessary. We have set a goal to reduce the average number of days for an investigation from 283 to 125 and have implemented a new system to meet that goal. We are asking the legislature to give us additional regulatory authority, such as temporary suspension or restriction when the physician poses a risk to the public; authority over violators of state or federal laws; discipline for criminal actions in cases of deferred adjudication; use of peer review actions; rule changes regarding stays and injunctions; and additional use of information related to medical malpractice lawsuits.

Reprinted from a press release posted on the Texas State Board of Medical Examiners Web site

WISCONSIN

INAPPROPRIATE SEXUAL CONDUCT SPECIFICALLY PROHIBITED

The Medical Examining Board has for many years prosecuted cases involving inappropriate sexual contact between physicians and their patients under § Med 10.02(2)(h), Code. That section reads as follows:

  • Med 10.02 Definitions….(2) The term “unprofessional conduct” is defined to mean and include but not be limited to the following, or aiding or abetting the same: (h) Any practice or conduct which tends to constitute a danger to the health, welfare, or safety of patient or public.

In a recent circuit court case, the board’s finding of a violation of the cited section, arising from a respondent’s having engaged in a sexual relationship with a patient over a period of approximately eight months, was appealed based in part on the argument that the cited section was vague in terms of what it permitted and prohibited. The court agreed, reversing the board’s decision and remanding the case to the board “for either further evidentiary proceedings or for particularly specific findings as to how the danger to patient rule was violated or caused, rather, in this case by improper medical treatment.”

Based upon this challenge to the board’s interpretation of the so-called “danger rule,” it was deemed appropriate to join most of the other health care boards in specifically prohibiting inappropriate sexual contact or behavior with a patient. Also consistent with similar rules promulgated by other affected boards, the patient’s status as a patient is extended for two years beyond actual termination of services in order to obviate the possible problem of a licensee summarily terminating treatment immediately upon commencement of improper personal contact with the patient.

The new rule, which went into effect on December 1, 2002, reads as follows:

  • Med 10.02 Definitions….(2) The term “unprofessional conduct” is defined to mean and include but not be limited to the following, or aiding or abetting the same:

(zd) Engaging in inappropriate sexual contact, exposure, gratification, or other sexual behavior with or in the presence of a patient. For the purposes of this subsection, an adult receiving treatment shall continue to be a patient for two years after the termination of professional services. If the person receiving treatment is a minor, the person shall continue to be a patient for the purposes of this subsection for two years after termination of services, or for two years after the patient reaches the age of majority, whichever is longer.

Reprinted from the February 2003 Wisconsin Regulatory Digest

LET US HEAR FROM YOU

Would you for information from your board to be considered for publication in the Journal? If so, e-mail articles and press releases to Edward Pittman at epittman@fsmb.org or send via fax to 817-868-4098.