New Enforcement Authority for Physicians

In May 2011, the Missouri General Assembly enacted Senate Substitute for Senate Committee Substitute for House Committee Substitute for House Bill 265. It effectively amends the Administrative Hearing Commission Act (“Act”) first enacted in 1965.

The Missouri General Assembly recognized in 1965 the unfairness of the situation that existed for licensees and the need to create an appropriate balance between the power of the government and the rights of the individual licensee. House Bill 265 contains several provisions which tip that balance in favor of the government and could be a trap to the unwary licensee. While several of the new provisions are reenacted provisions from existing law, they need to be read in context with the new provisions to understand their full effect. This article will discuss them.

New section 324.045 applies to all boards and commissions within the Missouri Division of Professional Registration, which includes the Missouri State Board of Registration for the Healing Arts. This new section provides that when one of those boards brings an action against a licensee, if the licensee against whom the proceeding has been brought “fails to plead or otherwise defend against the proceeding” then a default can be taken against that person. There is a provision for setting aside a default. Should a licensee move or should the mail simply be delivered to the wrong address, it is possible that a licensee could find himself or herself subject to sanction without ever having had proper notice of the proceeding. This puts a premium on physicians keeping the Board of Healing Arts apprised of their current mailing address.

The first change to the Healing Arts Law is found in new section 334.001. This effectively amends the Missouri Sunshine Act, Missouri’s complement to the federal Freedom of Information Act. It lists ten items which are public about each licensee. These items are: the name of the licensee or applicant, the licensee’s business address, registration type, currency of the license, certificate, or registration, professional schools attended, degrees and certifications, discipline by another state or administrative agency, limitation on practice placed by a court of competent jurisdiction, any final discipline by the board, including the content of the settlement agreement or order issued, and whether a discipline case brought by the board is pending in the Administrative Hearing Commission (“AHC”) or any court. It closes all other information. This expands substantially the personal information that would be available generally to the public. This information may allow others to steal their identity more easily. That new section also allows the Board of Healing Arts to disclose what would otherwise be confidential information about the licensee without the licensee’s consent to “other administrative or law enforcement agencies acting within the scope of their statutory authority.” As a practical matter, this allows the Board to disclose information about an impaired physician undergoing treatment. It may violate federal law¹ prohibiting the disclosure of information about alcohol or drug abuse treatment without notification to the affected person. Finally, that section would prohibit disclosure of information obtained from a federal administrative or law enforcement agency without that agency’s permission. For licensees that the Board is attempting to sanction based upon information from federal agencies, this might impede the licensee’s discovery of that information in a sanction proceeding.

Amendments to section 334.040 tighten the examination procedures for the Federation Licensing Examination (“FLEX”) by prohibiting combining or averaging scores from other test administrations to achieve a passing score. That same section would limit applicants for licensure to those who had not been involved in the practice of clinical medicine or teaching at an approved medical school for two years in the three year period immediately preceding the filing of the application. They could be required to complete other examinations, continuing medical education or further training before receiving a permanent license.

New section 334.099 gives the Board the ability to “initiate a contested hearing to determine if reasonable cause exists to believe that a licensee or applicant is unable to practice his or her profession with reasonable skill and safety to the public by reason of medical or osteopathic incompetency, mental or physical incapacity, or due to the excessive use or abuse of alcohol or controlled substances”. Under current law, the Board would have to go to the AHC if it believed that the licensee presented a “clear and present danger to the public health and safety”. In that case the Board’s executive director would be required to present sworn testimony or affidavits. The amendments to section 334.099 not only relax the burden on the Board but effectively allow the Board without complaint or other basis to require any physician in the state to be examined to determine whether they are competent. That should be contrasted with current law which requires the Board to act upon information it receives against a licensee which indicates that person may present a “clear and present danger to the public health and safety”. No other licensing board has the authority to determine whether a licensee about whom no complaint has been filed or negative information received is actually competent. In today’s increasingly competitive health care marketplace, this provision could be used by competitors, hospitals, or third party payors to raise an innuendo that a physician is not competent. More serious is the use the plaintiff’s bar can make of this provision to create a prima facie violation of law which allows the case to go to the jury without further proof of liability.

The Board has authority to obtain “medical or other health data, obtain medical data and health records relating to the licensee or applicant without the licensee’s or applicant’s consent, upon issuance of a subpoena by the Board. These data and records shall be admissible without further authentication by either board or licensee at any hearing held pursuant to this section . . . .” This may violate federal law protecting records of persons who are receiving alcohol or drug abuse treatment.2 Furthermore, the Board can force applicants or licensees to be subject to examination to determine whether they lack “reasonable skill and safety to the public by reason of medical or osteopathic incompetency, mental or physical incapacity, or due to the excessive use or abuse of alcohol or controlled substances . . .” or to sign releases to the Board.

Amendments to existing section 334.100 expand the grounds on which the Board can sanction or deny a license to add the following:

• Failing to establish valid physician-patient relationships pursuant to section 334.108. Section 334.108 is discussed below.

• Being listed on any state or federal sexual offender registry.

• Violating an order or other settlement agreement with the Board or other licensing agency. Previously the law only allowed a sanction for violating a “probation agreement”. This change gives the Board jurisdiction of violations of settlement agreements with any agency of government even if it is not related to the practice of medicine.

• Any other conduct that is unethical or unprofessional involving a minor.

• Violation of chapter 324. Chapter 324 is the chapter which defines the authority of the Division of Professional Registration. This provision would mean that any change in the law under Chapter 324 when violated by a physician would automatically result in a violation of Chapter 334, RSMo, the Healing Arts Law;

• Violation of any provision of chapter 195 (Narcotics Law). Violation of the “drug laws or rules and regulations of this state” is already a violation.

• Knowingly making a false statement, orally or in writing to the Board. The Board can subpoena a physician to appear before it to inquire about his or her competency to practice medicine. Anything that is said at a hearing, if untrue, could serve as a separate basis for sanctioning the physician. This would include statements made before the Board at informal meetings with it to discuss possible violations.

• Habitual intoxication or dependence on alcohol, evidence of which may include more than one alcohol-related enforcement contact as defined by section 302.525. Section 302.525 contains the penalties for driving under the influence of alcohol;

• Failure to comply with a treatment program or an aftercare program entered into as part of a Board order, settlement agreement or licensee’s professional health program;

• Being put on probation by the Bureau of Narcotics and Dangerous Drugs (“BNDD”) or the Drug Enforcement Administration or voluntary termination of a controlled substance authority while under investigation. This provision makes it more difficult to come to a settlement with the BNDD by merely surrendering a controlled substance authority while under investigation. It puts a premium on physicians in any care setting complying fully with the controlled substance laws and regulations. Enforcement by the BNDD frequently results in settlement agreements of one type or another including voluntary termination or surrender of the physician’s controlled substance authority. It will make it substantially more difficult to avoid a sanction by agreeing to discontinue prescribing controlled substances.

A number of provisions in the current Healing Arts Law have been repealed. A cant provision repealed is section 334.102.8. This provision provides for actual damages in cases where the Board initiated a summary suspension or restriction of the physician’s license where the AHC denied the requested relief by the Board. This provision acted as a brake on actions by the Board where it had not taken sufficient steps to determine that there were reasonable grounds for a request for a summary suspension by the AHC. The changes in the law described above eliminate the need for the Board to go to the AHC and furthermore immunize it from any penalty when it decides to act without reasonable grounds. In fact, as described above, The Board does not even need reasonable grounds to begin an investigation. It can take action against the physician merely to determine whether there are reasonable grounds to do anything.

Section 334.102 is amended to allow the Board to apply to the AHC for an emergency suspension or restriction in eight situations:

• Engaging in sexual conduct with a patient who is not the licensee’s spouse regardless of whether the patient consented;

• Engaging in sexual misconduct with a minor or person the licensee believes to be a minor. “Sexual misconduct” means any conduct of a sexual nature which would be illegal under state or federal law. Note it does not require that the “minor” be a patient of the physician. It is “any minor”;

• Possession of a controlled substance in violation of chapter 195, the state narcotics law, or any state or federal law, rule or regulation excluding recordkeeping violations.

• Use of a controlled substance without a valid prescription;

• The licensee is adjudicated incapacitated or disabled by a court of competent jurisdiction;

• Habitual intoxication or dependence upon alcohol or controlled substances or failure to comply with a treatment or aftercare program entered into pursuant to a Board order, settlement agreement or as part of the licensee’s professional health program;

• A report from a Board approved facility or professional health program stating the licensee is not fit to practice. For purposes of this section, licensee is deemed to have waived all objections to the admissibility of testimony from the provider of the examination and admissibility of the examination reports. The licensee is required to sign all necessary releases for the Board to obtain and use the examination during a hearing.

• Any conduct that constitutes a serious danger to the health, safety, or welfare of the patient or the public for which the Board may discipline the licensee.

Note the compressed time period once the Board chooses to go to the AHC to obtain an emergency suspension or restriction of the license. Once the Board files its complaint with the AHC, that body has only one business day to return a “service packet” to the Board. The “service packet” contains the Complaint filed by the Board together with all affidavits and other certified records filed. Within twenty four hours after receiving the “service packet” the Board is required either to personally serve the licensee or “leave a copy of the service packet at all of the licensee’s current addresses on file with the Board”. It then gives the licensee the opportunity to file affidavits and certified court records with the AHC in response to what the Board has filed with it. However, the licensee has a very limited period of time in which to do so since the AHC is required within five days of the Board’s filing of its complaint (not five days from the time the licensee files its information with the AHC) to review the information and issue its findings of fact and conclusions of law. This means for example that if the Board were to file its complaint on a Thursday, the AHC would have to return a service packet on Friday and then if the Board left a copy of the service packet at each of the addresses of the licensee on Friday afternoon the license would have only three business days to gather affidavits and certified court records to supply to the AHC. That would mean it would have to file them by Monday.

If the AHC finds that there is probable cause for the Board’s request for an emergency suspension or restriction, then the AHC has forty-five days to hold a hearing on the complaint to make a determination if there actually is cause for discipline. The Board can request a continuance. If granted the emergency suspension or restriction would be in place for 120 days after the Board’s initial filing. Therefore, the licensee may be without his or her license for four months before a hearing and many months thereafter until the AHC issues its actual decision. Making the process even more difficult for the physician, the Board can seek to amend its complaint any time within 31 days of the hearing before the AHC. This would require the physician’s attorney within 31 days of the date of the hearing to deal with additional allegations that were not in the original affidavits or complaint. Significantly, if the AHC finds that there is no probable cause or does not grant the emergency suspension or restriction, the only penalty the Board has is that it has to remove all references to the emergency suspension or restriction from public records but those records remain in the Board’s file. The provision giving the licensee damages against the Board in those situations is not reenacted.

Finally, an additional amendment to section 334.102 allows the Board to institute a hearing before itself without going to the AHC in three instances. They are the following:

• It is presented with certified court records of a finding of guilt or plea or guilty or nolo contendere in a criminal prosecution under the laws of any state or the United States for any offense involving the qualifications, functions or duties of any profession licensed or regulated under the Healing Arts Law, for any offense involving fraud, dishonesty or an act of violence or for any offense involving moral turpitude, whether or not sentence is imposed;

• Evidence of final disciplinary action against the licensee’s license, certification or registration issued by any other state, by any other agency or entity of this state or any other state of the United States or its territories, or any other country;

• Evidence of certified court records finding the licensee has been judged incapacitated or disabled under Missouri law or under the laws of any other state or territory.

In those instances the Board only has to give ten days notice of a hearing to the licensee.

As mentioned above, a new section 334.108 is enacted. It requires prior to prescribing any drug, controlled substance or other treatment through the internet that a physician shall establish a valid physician-patient relationship. To establish that relationship requires obtaining a reliable medical history, performing a physical examination adequate to diagnose the condition for which the drug is being prescribed, having sufficient dialogue with the patient regarding treatment options and the risks and benefits of treatment, following up with the patient to assess the therapeutic outcome, maintaining a contemporaneous medical record that is readily available to the patient and, subject to the patient’s consent, to the patient’s other health care professionals, and including the electronic prescription information as part of the patient’s medical record. However, if the treatment over the internet is being provided in a hospital, hospice program, home health agency or in accordance with a collaborative practice agreement, or in consultation with another physician who has an ongoing physician-patient relationship with the patient and has agreed to supervise the patient's treatment, or during an on-call cross-coverage situation, then the requirements previously described or deemed to be satisfied. It remains to be seen what effect this new statute will have on telemedicine and teleradiology.

Section 621.100 of the Act is amended to make service of process easier for the AHC by allowing a copy to be left at the last known address of the licensee.

Most important is how the Board of Healing Arts enforces these new provisions including whether it promulgates regulations to make clear how its authority is to be exercised. These changes in the law affecting physicians are yet another reminder that the regulatory and enforcement marketplace has become substantially more severe with health care providers being held to a standard of almost strict liability for their conduct. By 2013, under the federal Patient Protection and Affordability Care Act, the Department of Health and Human Services will be requiring that all health care providers have corporate compliance plans. The changes described above should merely add to the checklist to be reviewed to make sure that a physician’s practice is fully compliant with all applicable laws and regulations.

Biography

Harvey Tettlebaum, JD, is a partner in the Jefferson City, Mo., office Husch Blackwell LLP. Husch Blackwell serves as outside general counsel to the MSMA.

Contact: Harvey.Tettlebaum@huschblackwell.com