CALIFORNIA
PRESIDENT’S REPORT EXCERPT
Two bills [SB 1149 (Ortiz) and AB 1957 (Fromer)] on the issue of importation of Canadian drugs are now before the governor. He indicated in a letter of Aug. 20, 2004, to U.S. Health and Human Services Director Tommy Thompson that he intends to veto them, stating, “…I am concerned that quick legislative fixes at the state level would be contrary to federal law and oversimplify the complex safety, trade, supply and pricing issues involved. …I encourage the Bush administration to aggressively pursue its discussions with our trading partners to achieve fairer pricing of pharmaceuticals in the international marketplace and an equitable distribution of the costs of drug research and development.” The board will follow and report any related state legislation.
THE BUSINESS OF MEDICINE
The board receives a significant number of complaints alleging corporate practice of medicine, aiding/abetting unlicensed practice of medicine, improper ownership of a clinic, fee splitting and various related issues where physicians are engaging in business practices which are in violation of the Medical Practice Act.
While medicine is constantly evolving and new trends may seem more lucrative, physicians should carefully assess any business venture before entering it. Some unscrupulous non-physicians have preyed upon physicians who are unfamiliar with the complexities of a business, its corporate structure or the corresponding law, then find themselves responding to board inquiries regarding a practice they know little or nothing about. Therefore, physicians are strongly encouraged to seek private professional legal advice before engaging in any business endeavor that involves the practice of medicine.
In most situations, it is not appropriate for a physician to be hired by a non-physician. This is illegal. Some physicians believe they can be hired by a layperson as a medical director. This is also illegal. Many complaints to the board involve small storefront clinics, where a non-physician has purchased an office and the associated medical equipment. The missing item is a physician with an active license. In this situation, physicians are recruited and paid an hourly wage or salary and may believe that their recruitment was conducted on behalf of a legitimate medical corporation, which does not exist.
When hired into any medical practice, physicians should confirm the owner is a physician or the business is a legitimate medical corporation.
AG OPINION ON MEDICAL EXPERT TESTIMONY
California State Senator Liz Figueroa recently posed the following question to the Office of the Attorney General, requesting a formal opinion:
When a physician testifies as an expert in a civil proceeding regarding the applicable standard of medical care and whether the defendant has breached that standard, may the physician, on the basis of his or her testimony, be held liable in a subsequent tort action brought by the adverse party or be subject to discipline by the Medical Board of California?
The response to this question is published in the Official Reports of the Office of the Attorney General under Opinion No. 03-1201, dated April 28, 2004. The conclusion states the physician may not be held liable in a subsequent tort action, but may be subject to professional discipline by the board if testimony constitutes unprofessional conduct. As with all conduct, physicians should be guided by their ethical obligations in conjunction with their training and experience. As an expert witness, a physician has a clear ethical responsibility to be objective and truthful. It is clearly unethical and unprofessional conduct to offer false testimony.
The board would like to remind all physicians who provide testimony of their professional and ethical duties, to avoid potential referrals to the board for unprofessional conduct or dishonesty.
PREPARING FOR MAJOR CHANGES TO PRESCRIBING LAWS
Due to recent changes in the law (SB 151, Chapter 406), California’s longstanding requirement for state issued triplicate prescription forms for Schedule II controlled substances was repealed. In place of the triplicate, prescribers will use a tamper-resistant prescription pad available from private printing companies that have been approved by the Board of Pharmacy and the Department of Justice (DOJ).
This is a reminder that effective Jan. 1, 2005:
Triplicate prescriptions are no longer valid.
All written controlled substance prescriptions must be on controlled substance prescription forms. (Note: Oral and fax orders for Schedules III–V are still permitted.)
Prescribers dispensing Schedule III controlled substances must report those prescriptions to the Department of Justice. (Effective July 1, 2004, prescribers were required to report Schedule II controlled substances prescriptions to DOJ.)
The board has been advised the state exhausted its supply of triplicate prescription forms earlier than anticipated. Physicians who run out of triplicates will be able to use an “emergency-fill” exemption to write prescriptions for controlled substances. The Department of Justice recommends affected physicians invoke the emergency prescription statute (Health and Safety Code section 11167), which permits the use of regular, non-secure prescription forms for Schedule II prescriptions in “an emergency where failure to issue a prescription may result in the loss of life or intense suffering.”
To do this, physicians simply write “11167 exemption” on the regular prescription form and submit it to a pharmacy. The board strongly urges physicians to make arrangements with an approved security printer to obtain the new tamper-resistant prescription pads as soon as possible. For a current list of approved security printers, go to the California Board of Pharmacy website at www.pharmacy.ca.gov. The board has received several calls from physicians who are concerned with the high cost of the new prescription forms being charged by the approved security printers. Prior to SB 151 becoming law, the California Board of Pharmacy diligently researched the printing costs associated with the new forms. Printers indicated at that time that the prescriptions could be profitably printed for between three and five cents per prescription for an ordinary script (different sizes or multiple copy forms would increase costs). The triplicate prescriptions cost about seven cents per script now, but that does not accurately reflect their costs since the real costs are much higher and the Department of Justice has been subsidizing the expense voluntarily. As more major printing companies enter the market, prices are expected to fall.
Reprinted from Volume 91 of the Action Report, published by the Medical Board of California.
COLORADO
DISCIPLINE, BOARD ACTIONS, AND THE ISSUE OF FAULT
The summary of the board’s disciplinary actions is rumored to be the best-read section of the board’s Examiner newsletter, and board actions have recently been summarized (in some cases inaccurately) in one of the local newspapers. No physician wants to see his or her name on these lists. What many people do not realize, however, is that board actions are often necessary even when the physician whose license is affected is not at “fault,” and some of these actions are not “disciplinary” in nature.
For example, in substandard practice cases, the board looks at whether a physician’s care met generally accepted standards of practice and may impose discipline even where the physician’s substandard practice was not intentional. Other board actions result when physicians suffer from a mental or physical disability. Physicians with disabilities may not be at “fault,” although some physicians respond to their disabilities more responsibly than others. The board often has to impose restrictions on a disabled physician’s practice without regard to fault in order to assure that patient safety is not compromised.
In certain types of cases, the board enters an interim agreement while it investigates a case or while a physician is evaluated or treated. These agreements do not constitute disciplinary actions but are public board orders. The board also takes non-disciplinary actions when physicians who have been out of clinical practice for a period of time apply for initial licensure, reactivation of an inactive license, or reinstatement of a lapsed license. Applicants for initial licensure or for reactivation of an inactive license who have not established that they have actively practiced medicine for the two-year period immediately preceding the filing of the application must demonstrate continued competence as outlined by Board Rule 120. (The board’s rules are posted on its website at www.dora.state.co.us/medical.) This requirement also applies to those physician applicants for reinstatement whose license has lapsed for more than two years and who have not established that they have actively practiced medicine for the two-year year period immediately preceding the filing of the application (see § § 12-36-116(1)(d), 12-36-123(2)(b) and 12-36- 137(5), C.R.S.). The board often requires such applicants to complete an assessment and, if recommended, an education plan, with the Center for Personalized Education for Physicians (CPEP). These types of board orders are not disciplinary in nature and, again, do not reflect “fault” on the part of the physician.
Professional regulatory bodies like the Colorado State Board of Medical Examiners have a duty to inform the public about their actions. Board actions imposing disciplinary action are reported to the National Practitioner Data Bank. Both disciplinary and non-disciplinary board orders described above are included in the annual summary in the Examiner. Board orders are a matter of public record and must be produced if requested by a newspaper or anyone else. It is important to remember that a mere summary of the board’s actions by nature cannot tell the full story and complete copies of the board’s stipulations and final agency orders are available to the public.
Reprinted from the volume 12, number 1, issue of the Examiner, published by the Colorado Board of Medical Examiners.
KENTUCKY
INTERNET PRESCRIBING AND KRS 311.597(1)(E)
The prescribing and dispensing of medications via the Internet has created complex regulatory challenges for state medical boards in protecting the public. Accepted standards of practice must be upheld regardless of means of communication or delivery of health care services. Consumers obtaining prescriptions, medications, and/or medical treatment from Internet websites without an adequate evaluation by a physician pose an immediate threat to the public health and safety.
In order to adequately protect public health, safety and welfare, the board has taken the position that prescribing drugs to individuals the physician has never met based solely on answers to a set of questions, as is common in Internet prescribing, is inappropriate and unprofessional. According to KRS 311.597(1)(e), an electronic online or telephonic evaluation by questionnaire is inadequate for the initial evaluation or for the personal follow-up evaluation.
The board feels a valid physician/patient relationship cannot be established without an initial face-to-face evaluation by a health care professional. Therefore, the board considers Internet prescribing to be unethical and unprofessional and grounds for disciplinary action.
REQUIREMENTS FOR WRITING PRESCRIPTIONS
Illegible and incorrectly completed prescriptions are increasingly becoming a problem throughout the state. These oversights can lead to possible medical errors or cause a physician to unknowingly and incorrectly have a prescription for a controlled substance be attributed to them via KASPER, which may lead to a review of their prescribing practices. Physicians who write illegible or incorrect prescriptions also run the risk of having the pharmacy reject filling the prescription due to it not meeting the statutory requirements of Kentucky, thus causing undue hardship on the patient and unwanted stress for the pharmacist.
Recently, a meeting was conducted with representatives of the Kentucky Board of Pharmacy and the Kentucky Drug Enforcement Branch to discuss some of these problems. As a result, the board would like to provide physicians with a few simple reminders to consider when writing prescriptions for their patients. According to Kentucky law, all prescription blanks should include the following:
The full name of the patient, name of the drug, strength, dosage form, quantity prescribed, directions for use and the date the prescription was issued;
The name, telephone number, and business address of the prescribing practitioner; and
For the prescribing of controlled substances, prescription blanks should bear the preprinted, stamped, typed, or manually printed name, address and telephone number of the prescribing physician. It is very important to note that prescriptions for controlled substances also require the signature of the prescribing physician.
The board realizes the practice of medicine is often times fast paced and hectic, but would like to strongly encourage all physicians to take the extra time needed and to complete their prescriptions with the legible and correct information as required by law.
Reprinted from the Fall 2004 issue of Kentucky Board of Medical Licensure Newsletter, published by the Kentucky Board of Medical Licensure.
MARYLAND
ATTORNEY GENERAL’S OPINION ON SELF REFERRALS
Maryland’s self-referral law, passed by the General Assembly and signed into law in 1993, is intended to prohibit physicians and other health care practitioners from referring patients to other health care entities in which the practitioner has a financial interest. The law makes exceptions for the use of “in-house ancillary services” provided in the office of the practitioner, but the law excludes “MRI services, radiation therapy, and computer tomography scans from the definition of “in-house ancillary services.”
The Maryland Office of the Attorney General has published a formal opinion on the application of the self-referral law to orthopedic practice groups that own either a MRI machine or a CT scanner. The opinion states, in part:
In our opinion, the law bars a physician in the orthopedic practice from referring patients for tests on an MRI machine or CT scanner owned by that practice, regardless of whether the services are performed by a radiologist employee or member of the practice or by an independent radiology group. The same analysis holds true for any other non-radiology medical practice that owns an MRI machine or CT scanner.” [89 Opinions of the Attorney General (2004), page 10.] An Opinion of the Attorney General represents the considered views of the Attorney General on a significant legal question, generally involving a Maryland law or other law that governs the actions of public officials in Maryland. The board gives these opinions significant weight when deciding issues of law.
2004 GENERAL ASSEMBLY
The following bills were passed and signed into law:
Senate Bill 72: This law extends the law requiring licensure of respiratory care practitioners in Maryland. Without the legislation, the provisions would have “sunsetted” on July 1, 2007.
House Bill 384: This law permits pharmacists to administer influenza vaccinations and directs the boards of pharmacy, physicians, and nurses to adopt regulations to allow pharmacists to administer influenza vaccinations in a manner that safeguards patient safety.
House Bill 433: This law requires the Secretary of Health and Mental Hygiene to convene a workgroup to study and make recommendations for regulatory or statutory changes needed to improve prescription legibility of prescriptions in order to enhance patient safety. The board will be part of the workgroup.
BOARD OF PHYSICIANS REHABILITATION PROGRAM
The board has established a new Physicians Rehabilitation Program for impaired physicians in need of treatment and rehabilitation for alcoholism, chemical dependency, or other physical, mental, or emotional conditions. This program is designed to make entry into treatment, if necessary, as easy and painless as possible for the physician, family and associates. The program offers information, evaluation and referral for treatment, if necessary, at no cost to either the participant or the employer.
All physicians who are required by an Order or Agreement with the board to participate in a rehabilitation program are referred to the new program. However, referrals from employers, associates, family or physicians themselves are accepted and encouraged.
Joanna Fitzick, LCSW-C, is the case manager for the program. Burton D’Lugoff, M.D., is the program’s medical director. The program can be contacted at (443) 803-4567. Staff can provide or arrange a presentation on the program as well as on topics related to substance abuse and mental health.
Reprinted from the Summer 2004 issue of MBP Newsletter, published by the Maryland Board of Physicians.
MISSOURI
DISABLED PARKING LICENSE PLATES/HANGING PLACARDS: LAW CHANGES
On July 9, 2004, Governor Bob Holden signed into law Senate Bill 1233, a mass transportation bill that included comprehensive revisions to existing Missouri statutes with respect to the issuance and use of disabled parking license plates and/or windshield hanging placards.
The provisions of Senate Bill 1233 in this regard are far reaching and were designed to:
Clarify the standards with respect to who is and is not eligible for disabled parking privileges;
Clarify that age, in and of itself, is not a factor in determining whether one is “physically disabled” or otherwise entitled to disabled parking privileges;
Emphasize the gatekeeper role imposed upon physicians;
Clarify that disabled license plates/hanging placards, when issued, are issued to a specific person and may not be transferred or used by any other person – whether disabled or not except as provided by law; and
Strengthen and include mechanisms for enforcement and prevent the fraudulent/wrongful misuse of such plates/placards.
These provisions become effective Jan. 1, 2005.
The new law’s impact on physicians are significant, impose new duties when signing a Physician’s Statement of Disability for a patient, and greatly increases the penalties which a court may impose upon physicians, and others, who fail to comply with the various provisions of the Act. Now a physician who violates, or fails to comply, is, upon conviction, guilty of a Class B, instead of a Class C, misdemeanor. A Class B misdemeanor is punishable by a fine not to exceed $500 and/or a period of imprisonment not to exceed six months. As noted, the statute clarifies the standards that govern eligibility for disabled parking privileges. These, as set out in the Act, are:
(4) “Physically disabled,” a natural person who is blind, as defined in section 8.700, RSMo, or a natural person with medical disabilities which prohibits, limits, or severely impairs one’s ability to ambulate or walk, as determined by a licensed physician or other authorized health care practitioner as follows:
The person cannot ambulate or walk 50 or less feet without stopping to rest due to a severe and disabling, arthritic, neurological, orthopedic condition, or other severe and disabling condition; or
The person cannot ambulate or walk without the use of, or assistance from, a brace, cane, crutch, another person, prosthetic device, wheelchair, or other assistive device; or
Is restricted by a respiratory or other disease to such an extent that the person’s forced respiratory expiratory volume for one second, when measured by spirometry, is less than one liter, or the arterial oxygen tension is less than 60 mm/hg on room air at rest; or
Uses portable oxygen; or
Has a cardiac condition to the extent that the person’s functional limitations are classified in severity as class III or class IV according to standards set by the American Heart Association; or
A person’s age, in and of itself, shall not be a factor in determining whether such person is “physically disabled” or is otherwise entitled to disabled license plates and/or disabled windshield hanging placards....
Second, a physician’s statement/certification must personally be signed by the physician or other authorized health care provider. A “rubber stamp” signature is unacceptable and will be rejected.
Third, the physician may not delegate or authorize any other person to sign for, or on his/her behalf. This includes: physician assistants, advanced practical nurses, staff nurses, and/or office assistants. Physician statements signed, or initialed by them on behalf of a physician, are likewise unacceptable and will also be rejected.
Fourth, a physician ... who issues or signs a physician’s statement so that disabled plates or a disabled windshield placard may be obtained, shall maintain in such disabled person’s medical chart documentation that such a certificate has been issued, the date the statement was signed, the diagnosis or condition which existed that qualified the person as disabled pursuant to this section, and shall contain sufficient documentation so as to objectively confirm that such condition exists.
The medical or other records of the physician ... shall be open to inspection and review by such practitioner’s licensing board ... Information contained within such records shall be confidential unless required for prosecution, disciplinary purposes, or otherwise required to be disclosed by law.
As noted, these changes become effective Jan. 1, 2005. After Aug. 1, 2005, all persons seeking to renew their entitlement to disabled parking plates/placards must obtain and present to the Department of Revenue (DOR) at the time of renewal a new physician’s statement less than ninety (90) days old. Thereafter a new physician’s statement must be obtained every four years, even if such person is permanently disabled.
The DOR has developed a revised physician’s statement/certification form in order to implement the Act – Form 1776. This new form will be available at all department offices and may also be downloaded from the department’s website, http://www.dor.mo.gov/mdvl/motorv/forms/1776.pdf. These new forms will be available and may be used on and after Dec. 1, 2004, and should be used after Jan. 1, 2005.
Reprinted from Volume 19, Number 2, issue of Healing Arts News, published by the Missouri State Board of Registration for the Healing Arts.
NEW MEXICO
PRESCRIBING AUTHORITY TO PSYCHOLOGISTS
The proposed rules to implement HB 170, the Prescriptive Authority to Psychologists Act, were presented for public comment at the board’s May 21 meeting. At that time, the board heard from several individuals, including representatives of the Psychiatric Association and the Southwest Institute for the Advancement of Psychology.
The rules now go to the Psychologist Examiners Board for a formal rule hearing, which had not been scheduled at the time of publication. For information about the hearing, and to submit public comment, contact the psychology board at (505) 476-7078 or via e-mail at [email protected]. A complete copy of the proposed rules can be found on the board website. Go to http://nmmb.state.nm.us and follow the link to Proposed Rule Changes.
Reprinted from Volume 9, Issue 1, of Information & Report, published by the New Mexico Medical Board.
NORTH CAROLINA
NBOME BEGINS CLINICAL SKILLS TESTING AT NEW PENNSYLVANIA CENTER
The National Board of Osteopathic Medical Examiners (NBOME) began testing at its new National Center for Clinical Skills Testing in Conshoshocken, Pa., in September. The center will now conduct COMLEXUSA Level 2-PE (Performance Evaluation) clinical skills examination on a continuous basis throughout the year.
The purpose of the Level 2-PE is to measure doctor-patient communication, history-taking, physical examination, osteopathic principles, manipulative treatment, written communications skills, integrated differential diagnosis and the formulation of a therapeutic plan in a simulated clinical environment. The D.O. candidates see 12 patients during the seven-hour examination. The test is similar to the USMLE Step 2 Clinical Skills examination implemented at five sites in 2004.
Level 2-PE will be required for all D.O. candidates graduating in 2005 and those who graduated before July 1, 2004, and have not passed Level 2-CE (Cognitive Evaluation) by June 30, 2005. Because Level 2-PE is a separate component from Level 2-CE, the examinations may be taken in any order.
For more information, visit the NBOME website at www.nbome.org.
Reprinted from the Number 3, 2004, issue of Forum, published by the North Carolina Medical Board.
LET US HEAR FROM YOU
Would you like for information from your board to be considered for publication in the Journal? If so, e-mail articles and news releases to Edward Pittman at [email protected] or send via fax to (817) 868-4098.
