Medical boards get more tools to investigate physicians
■ New laws and efforts to end over-prescribing play roles in greater activity by boards.
By Carolyne Krupa — Posted June 4, 2012
Political pressure and more attention to the growing problem of prescription drug abuse have contributed to increased scrutiny of medical boards in recent years. That has led some states to pass legislation or make policy changes to bolster how the boards regulate and discipline physicians.
States such as Delaware, Florida and Texas have enacted laws to prevent the operation of so-called pill mills by targeting physicians who abuse their prescribing rights, said Lisa Robin, chief advocacy officer at the Federation of State Medical Boards. Other states have increased their medical board staffs or expanded their boards’ abilities to investigate and discipline doctors.
As a result, medical boards across the country are taking more disciplinary actions against doctors. The number of board actions against physicians increased 6.8%, from 5,652 in 2010 to 6,034 in 2011, according to an annual summary of board actions compiled by the FSMB.
The number of prejudicial actions — such as license suspensions, revocations, probations and other restrictions — rose 4.1%, from 4,798 in 2010 to 4,996 in 2011. Nonprejudicial actions, which are for less serious offenses, jumped 21.5%, from 854 to 1,038 during the same period.
The number of board actions fluctuates from year to year. Disciplinary actions nationwide have risen 13.4% in the last five years, even with a 1.2% dip in 2010. FSMB officials attribute a spike in 2004-05 to a crackdown in Florida on physicians who failed to keep up with continuing medical education requirements.
“What this shows us is that even in the current environment of limited resources, the boards are still very diligent and doing a good job of protecting the public,” Robin said.
Board officials attribute the increases to multiple factors, including growing physician populations, better sharing of information and new laws aimed at strengthening medical boards’ regulatory authority. For example, legislation passed in Washington in 2008 created a five-year pilot project to grant the Washington State Medical Quality Assurance Commission greater control over its staff and budget, said Mimi Pattison, MD, commission chair. There has been a 42.1% rise in the commission’s actions since 2007.
But despite some gains, most medical boards are failing to fulfill their obligations to protect patients, said Sidney Wolfe, MD, director of consumer advocacy group Public Citizen’s Health Research Group.
“There is considerable evidence that most boards are inadequately disciplining physicians,” Dr. Wolfe said. “Action must be taken, legislatively and through public pressure on medical boards themselves, to increase the amount of discipline and thus the amount of patient protection.”
Legislators scrutinizing boards
Some medical boards have faced criticism from state legislators. The Maryland Board of Physicians, for example, is undergoing several changes after an unfavorable legislative audit in 2011, said Joshua Sharfstein, MD, secretary of the Maryland Dept. of Health and Mental Hygiene. The board has a new executive director, and the governor now has authority to appoint a board chair. The post previously was elected by the board.
An independent review panel also has been assembled to evaluate the board, and new protocols will guide the types of penalties physicians face for various infractions. Previously, cases were determined solely on an individual basis, Dr. Sharfstein said.
“There are a lot of changes happening with the board,” he said. “It really is a work in progress.”
Delaware’s medical board also has undergone several reforms in recent years, largely driven by a rise in prescription drug abuse and the high-profile arrest and conviction of a pediatrician for serial child abuse.
In August 2011, Earl Bradley, MD, of Lewes, Del., was sentenced to 14 life sentences without parole and an additional 160 years in prison after being convicted of 24 counts of assault and sexual exploitation. He is suspected of molesting more than 100 of his young patients from 1998 to 2009.
“It really just turned the political landscape upside down,” said Randeep Kahlon, MD, president of the Medical Society of Delaware. “This is now a very politically charged environment.”
As a result, the Delaware Board of Medical Practice was changed to the Board of Medical Licensure and Discipline, and several new laws increased the board’s authority.
For example, the board was given the ability to immediately revoke or suspend a medical license. In addition, another adult must be present when a physician gives certain physical examinations to a patient age 15 or younger, said Christopher Portante, spokesman for the Delaware Dept. of State. The state also increased the potential fines for failing to report unprofessional conduct by a physician to $10,000 for the first offense and up to $50,000 for subsequent offenses. (See correction)
Since the changes, actions by the medical board more than doubled, from 11 in 2009 to 27 in 2011. The increase is significant for such a small state, Dr. Kahlon said.
“There was a slew of legislation that was passed. It was what we describe as a legislative overreaction,” he said.
But Delaware State Rep. Helene Keeley called the changes justified. She sponsored legislation six years ago to increase transparency of the medical board but faced strong opposition from physician organizations. Many of the same measures passed easily after Dr. Bradley’s arrest.
“In hindsight & if some of the things we wanted in 2004 had been put into place then, maybe we would not have had an Earl Bradley,” Keeley said.
But Dr. Kahlon said none of the new laws could have prevented the abuse. Now many of the state’s physicians are afraid of being wrongly targeted for suspected abuse or other infractions. Just in the last year, two of three physicians who received emergency license suspensions issued by the secretary of state later had the suspensions lifted by the board.
“We feel that the error rate is enormously high,” Dr. Kahlon said. “There is a perceptible and palpable fear by Delaware physicians.”
Targeting prescription drug abuse
The number of actions taken by the Texas Medical Board rose 90.6% from 371 in 2007 to 707 in 2011. The jump is due to the state’s expanding physician population and an increased focus on preventing prescription drug abuse, said Mari Robinson, the board’s executive director.
In 2009, legislators enacted a law requiring the certification and regulation of pain management clinics. “That law led to the increase in prosecution of the vast nontherapeutic prescribing entities that we are seeing in our state,” Robinson said.
Florida also has seen increased scrutiny of pain management clinics. Several new laws there target overprescribing, including restrictions on physician dispensing of controlled substances and reporting mandates for doctors treating chronic malignant pain, said Jeff Scott, general counsel with the Florida Medical Assn.
The number of disciplinary actions by the Florida Board of Medicine jumped from 215 in 2010 to 332 in 2011. While the state medical association supports prosecution of physicians who are prescribing illegally, the new laws go too far, Scott said.
“It’s going to make it difficult for a legitimate pain patient to see a doctor,” he said. “It’s going to limit access, and it’s going to compound the problem. It’s an unfortunate knee-jerk reaction to a serious problem.”
The Mississippi State Board of Medical Licensure has targeted prescription abuse, too. About a year ago, the board began requiring pain management practices to register with the state, said H. Vann Craig, MD, the board’s executive director.
Overdoses from prescription drugs have become the No. 1 cause of accidental death in the United States. “They’re more dangerous than car accidents,” he said.
The board also uses the state’s prescription monitoring program to watch for cases of abuse. “That way, we are able to look at doctor shoppers and look where an individual patient is going,” Dr. Craig said.
In Washington state, the number of punitive actions by the Medical Quality Assurance Commission went from 114 in 2007 to 162 in 2011. Through the five-year pilot project, the commission now has its own staff and can function more efficiently, said Bruce Andison, MD, assistant secretary treasurer for the Washington State Medical Assn. and a commission member. Before the change, the commission shared staff with other state licensing boards.
“Now we have our own attorneys and our own investigators,” he said. “That has helped us significantly reduce our backlog.”
But many state medical boards continue to struggle with limited resources, Dr. Wolfe said. In some cases, state legislatures are pulling funds from medical boards to fill budget shortfalls in other areas.
Each year, Public Citizen ranks medical boards based on serious disciplinary actions per 1,000 doctors. For 2011, the group’s three states with the highest numbers were Wyoming (6.79 actions per 1,000 physicians), Louisiana (5.58 actions per 1,000) and Ohio (5.52 actions per 1,000). Those with the lowest numbers were South Carolina (1.33 actions per 1,000 physicians), Washington, D.C. (1.47 actions per 1,000), and Minnesota (1.49 actions per 1,000).
“There is no evidence at all that any state has any better or worse doctors,” Dr. Wolfe said. “The variable that some states discipline more or less is because boards are functioning better or worse.”
But Robin, of the FSMB, said it’s unfair to rank medical boards by the number of actions alone. Every board is different, and the number of disciplinary actions a board takes is only a small measure of the work it does.
“Boards really are very committed to trying to respond to the public and consumer complaints,” she said. “There are differences in states, differences in resources and statutes, and confidential programs. The [rankings] don’t take into consideration all the work that boards do.”