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BOARDS AND COMMISSIONS; MEDICAL PERSONNEL; PHYSICIANS;

OLR Research Report


December 3, 2009

 

2009-R-0435

STATE MEDICAL BOARDS IN CONNECTICUT AND OTHER STATES

By: Nicole Dube, Associate Analyst

You asked us to compare the structure and functions of Connecticut's Medical Examining Board to the state medical boards in Maryland, Massachusetts, New York, and Pennsylvania. You were specifically interested in these states' approach to physician discipline.

SUMMARY

State medical boards license physicians and other health care professionals, receive and investigate complaints, discipline licensees who engage in professional misconduct, collect and provide information to the public on physician credentials and records, and sometimes facilitate the rehabilitation of physicians with substance abuse problems. The structure and authority of medical boards varies across states. Some boards are independent and maintain all licensing and disciplinary powers, while others are part of a larger state agency, such as the department of public health.

While all the state medical boards included in this report are housed within a state agency, some, such as Maryland and Massachusetts, are functionally and fiscally independent. Connecticut and Pennsylvania medical boards share licensure and disciplinary functions with their umbrella agency, and New York further separates its licensure and disciplinary functions under two separate medical boards within two different state agencies. The boards in Maryland, New York, and

Pennsylvania are funded entirely from physician licensing and registration fees. Massachusetts' board is funded by both physician fees and a direct appropriation from the state legislature. Connecticut's board falls under the Public Health Department budget.

Maryland and Massachusetts are the only state medical boards that perform all functions of the physician disciplinary process including receiving, investigating, and adjudicating complaints and imposing disciplinary sanctions where appropriate. In Connecticut and Pennsylvania, the boards' umbrella agencies receive and investigate complaints; the boards are involved in adjudicating complaints, making final disciplinary decisions, and imposing sanctions.

CONNECTICUT

The Connecticut Medical Examining Board (MEB) is a gubernatorialy appointed 15-member board within the state Department of Public Health (DPH). It is not fiscally independent; its expenditures are part of the DPH budget. Membership includes:

1. five physicians practicing in the state,

2. one physician from UConn Medical School,

3. one physician who is a full-time general hospital chief of staff,

4. one general hospital physician who supervises physician assistants

5. one osteopath,

6. one physician assistant, and

7. five public members

Board Functions

Physician licensure and disciplinary powers are shared between DPH and the MEB. DPH performs the board's administrative functions including administering licensing exams; reviewing license applicant qualifications and eligibility; maintaining an online Physicians Profile database that provides the public with information on licensed physicians; and investigating complaints of professional misconduct. The MEB's primary role is to advise DPH in its licensure-related tasks and to make final disciplinary decisions based on findings and recommendations from hearing panels composed of board members and others.

Disciplinary Procedures

DPH and the MEB perform distinct roles in the physician disciplinary process. DPH's Practitioner Investigation Unit (PIU) receives and investigates all complaints against licensed physicians and physician assistants. As part of the investigative process, the PIU obtains relevant medical records and information, conducts interviews, and obtains expert opinion from a physician in the same specialty as the licensee under investigation. After the investigation is complete, the PIU supervisor refers cases with sufficient evidence of misconduct to the department's legal office for prosecution before the MEB. Before formal charges are brought against the licensee, he or she is given an opportunity to show compliance with all state laws and regulations.

Once DPH initiates formal charges, it refers the case to the MEB within 60 days for a disciplinary hearing and final decision. The board convenes a three-person panel to hear evidence, and if necessary, recommend that the full board take disciplinary action. The hearing panel is comprised of one board member, one public member who may either be a board member or hearing panelist (By law, the DPH commissioner must appoint 24 people to a list of hearing panelists.), and one physician or physician assistant who is on the list of non-board hearing panelists.

After conducting the hearing and receiving advice from an assistant attorney general, the panel issues a proposed memorandum of decision. All parties are provided a copy of the decision and given the chance to request oral argument before the entire MEB issues its final decision. Some cases are resolved through a negotiated settlement, such as a consent order, before a final board decision is issued. All consent orders must be approved by the full board.

For cases not reaching a settlement, the board reviews the hearing panel's proposed final decision. It may adopt, modify, or remand the decisions for further review or the taking of additional evidence. The board's final disciplinary action can take several forms including license suspension or revocation, censure or reprimand, probation, practice limitation, retraining, or a fine of up to $25,000. It can take any of these actions summarily if it finds that the licensee has been (1) found guilty of a felony here or in another jurisdiction, (2) subject to disciplinary action in another jurisdiction, or (3) deemed an immediate danger to the public health and safety. (CGS 19a-17, 20-13c).

Under the state Uniform Administrative Procedures Act (UAPA), a party may request the MEB to reconsider its final decision within 15 days of its issuance. If the board decides to reconsider, it must issue its final decision within 90 days. If still unsatisfied, the party may appeal the board's final decision to Superior Court within 45 days of receiving the decision (CGS 4-181a, 4-183).

MARYLAND

The Maryland Board of Physicians is a gubernatorialy appointed, independently funded board housed in the state Department of Health and Mental Hygiene (DHMH). It is funded by medical professional licensing and registration fees and has 21 members:

1. 12 licensed practicing physicians including one osteopath,

2. one DHMH representative,

3. one certified physician assistant,

4. one licensed physician representing a state academic medical institution,

5. five consumers, and

6. one public member knowledgeable in risk management or quality assurance.

Board Functions

The board is Maryland's licensure and disciplinary board for physicians and other healthcare providers, including physician and psychiatric assistants and medical technologists. It also (1) registers unlicensed medical practitioners (medical school graduates enrolled in an internship, residency, or fellowship); (2) adopts rules and regulations, in consultation with the State Board of Pharmacy, regarding prescription drug dispensing by licensed physicians; (3) maintains an internet-based, Practitioner Profile System that provides the public with information on medical practitioners' credentials and records; and (3) administers a Professional Rehabilitation Program that provides services to physicians in need of treatment and rehabilitation for alcohol or drug dependency or other physical or psychological conditions.

The state Attorney General's Office advises the board regarding ongoing cases; investigations; procedures; contractual and procurement issues and writing of decisions, regulations, and legislation.

Disciplinary Procedures

The board's Compliance Division investigates all complaints, reports, and information involving its licensees. The division employs full-time investigators who gather information and present it to the board for decision.

Division staff conduct a preliminary investigation of all complaints received to determine if a possible violation of the state's Medical Practice Act has occurred. During this preliminary investigation, relevant records are subpoenaed; medical and legal research is conducted; and in quality of care complaints, a medical consultant reviews all materials. The licensee is given the opportunity to respond to the complaint. The results are then presented to the board's six-member Investigative Review Panel, which decides whether to conduct a full investigation. Most complaints are closed at this stage.

For cases requiring a full investigation, division staff review the complaint, conduct interviews, and subpoena documents and testimony. The results of the investigation are then presented to the full board for decision. If the board determines a violation of the state's Medical Practice Act has occurred, charges are brought against the licensee and a hearing is held before an administrative law judge at the state Office of Administrative Hearings.

If after considering the administrative hearing findings the board determines professional misconduct has occurred, it may take disciplinary action against the licensee. Actions range from a letter of concern to license revocation. The board can also require retraining, license suspension, or assess fines of up to $50,000. It cannot order a physician to compensate an individual who thinks he or she has been harmed by a physician; these individuals must initiate a civil law suit.

MASSACHUSETTS

The Board of Registration in Medicine (BORIM) is Massachusetts' physician and acupuncturist licensing and disciplinary board. The board is a gubernatorialy appointed, independently funded agency housed in the Department of Public Health for administrative purposes. It is funded by both a direct legislative appropriation and physician licensing fees. Its seven members include five physicians and two public representatives who serve on one or more of five subcommittees: licensing, complaint, data repository, patient care assessment, and acupuncture.

Board Functions

In addition to licensing physicians and acupuncturists, BORIM receives and investigates complaints and takes disciplinary action against providers when warranted. It also (1) collects and provides information to the public on physicians' credentials and records and (2) implements state regulations governing healthcare facilities' quality assurance and risk management systems.

The board employs an executive director and staff including clinicians, investigators, and attorneys grouped in five divisions: licensing, enforcement, patient care assessment, public information, and law and policy.

Licensing. The Licensing Division performs the initial review of all licensure applicants and refers its findings to the board's licensing subcommittee for further review and subsequently, the full board for final decision.

Patient Care Assessment. The Patient Care Assessment Division works with hospitals and other institutions to improve quality assurance and patient safety programs. It receives and evaluates hospital reports detailing their patient safety programs and major incidents (any unexpected, adverse patient outcomes).

Public Information. This division maintains an online physician profile database, Physician Profiles, that provides the credentials, practice information, and disciplinary histories of all Massachusetts-licensed doctors. It also maintains a toll-free call center that answers questions about board policies, helps consumers with complaints, and provides copies of physician profiles.

Law and Policy. This division serves as the board's legal department and oversees compliance with its legal obligations, including statutory reporting, adherence to state laws and regulations, and physician compliance with board agreements. It also coordinates the board's disciplinary work, including statements or allegations, consent orders, final decisions and orders, and appeals.

Disciplinary Procedures

State law requires the board's Enforcement Division to investigate complaints against physicians and acupuncturists and to litigate disciplinary actions.

The Enforcement Division has three units:

1. The consumer protection unit screens complaints, coordinates their initial review as part of a “triage” process that determines investigative priorities, and keeps consumers informed about the status of their complaints.

2. The clinical care unit investigates complaints of substandard care. It is staffed by a nurse manager who is an attorney, three nurse reviewers, and a paralegal. They analyze patient records and physician responses; coordinate remedial conferences; and send evidence to outside experts for review.

3. The disciplinary unit investigates and litigates all cases that might result in disciplinary action. It is staffed by investigators who gather evidence, interview witnesses, and work with law enforcement agencies and by attorneys who present cases to the board's complaint committee, the state's Division on Administrative Law Appeals, and the full board.

If, after the disciplinary unit's investigation the board determines discipline is appropriate, the matter is usually resolved through a negotiated settlement, such as a consent order. If this is not possible, the board refers the matter to the Division of Administrative Law Appeals, a separate state agency, for a full evidentiary hearing. When the hearing is complete, the hearing officer issues a recommended decision to the board containing findings of fact and legal conclusions. The board considers this recommendation, hears the parties' arguments, and issues a final decision and order. The penalties it may impose include license revocation or suspension, censure, reprimand, practice restrictions, probation, and fines.

NEW YORK

Physician licensure and disciplinary powers are assigned to two separate medical boards within the state departments of education and health.

Licensure

The state Education Department's Office of the Professions and its Board of Regents regulate the licensure, practice, and conduct of 48 professions, including medicine. The Board of Regents is an independent, citizen board consisting of 17 legislatively appointed members who oversee the state's educational activities. This board, based on the education commissioner's recommendation, appoints a board for each licensed profession to advise and assist it and the department on professional regulation matters.

The state Board of Medicine is the appointed board for physicians, physician assistants, and specialist assistants. It assists education department staff in developing professional regulations and policies for approval by the Board of Regents; it does not make decisions about individual licensure cases. The Board of Medicine is part of the Office of the Professions and consists of 24 members: 20 licensed physicians including two osteopaths, two physician assistants, and two public members. It is funded by physician licensing and registration fees.

Generally, the Board of Regents and the Education Department handle the investigation, prosecution and misconduct hearings of all its professional licensees. But, in 1991 the legislature transferred full disciplinary authority for physicians, physician assistants, and specialist assistants to the state Health Department. All other health care professionals, including nurses, dentists, and podiatrists continue to be licensed and disciplined by the education department.

Disciplinary Procedures

The Health Department's Office of Professional Medical Conduct (OPMC) and its Board of Professional Medical Conduct (board) administer the state's disciplinary programs for physicians, physician assistants, and specialist assistants. It also (1) maintains the New York State Physician Profile, an online database providing the public with information on licensed physicians and (2) oversees the state's Physician Health Program, which coordinates rehabilitation services to licensees in these professions who have substance abuse problems.

The board consists of physician and non-physician members, 20% of whom are appointed by the Board of Regents, the remainder by the health commissioner. According to the Board's 2007 Annual Report, in 2007 its membership included 113 physicians representing 24 medical specialties, and 45 lay members, including 6 physician assistants. The board is funded by 100% of registration renewal fees from physicians, physician assistants, and specialist assistants, which the Education Department redirects to OPMC.

By law, OPMC must investigate each complaint it receives. After conducting a preliminary review, if warranted, it begins a full investigation and notifies and the licensee. Investigators and clinicians review medical records, gather information, and conduct interviews. The licensee is given the opportunity to be interviewed and may be represented by an attorney and submit information to OPMC at any time during the investigation. If the case involves issues of clinical practice, state law requires OPMC to consult with medical experts.

If the investigation finds sufficient evidence of professional misconduct, OPMC presents the evidence to a board investigation committee composed of two physician board members and one public member. If the committee determines discipline is appropriate, it may vote to take action against the licensee including issuing an administrative warning; requiring consultation with an expert panel; filing formal charges; and in cases believed to pose an imminent danger to public health, recommending immediate practice suspension to the Health Department. Some cases are resolved through a negotiated settlement, such as a consent order.

If formal charges are brought against the licensee or the health department orders immediate practice suspension, a hearing is held before an administrative law judge and a separate three-member board panel (two physicians, one public member). The hearing panel must issue its decision within 60 days of the hearing and may impose appropriate penalties if misconduct is found. Penalties may include reprimand or censure; license suspension, annulment, or revocation; practice restrictions; public service; retraining; supervision or monitoring; and fines. License revocation, suspension, and annulment take effect and are made public immediately. Other penalties are not made public until the period for requesting an appeal has passed. If an appeal is filed, disciplinary action is delayed until a final decision is issued.

Either party may appeal the hearing panel's decision to the board's standing Administrative Review Board (ARB). This standing committee consists of three physician board members and two public members. Appeals must by filed within 14 days of the hearing committee's decision. Both parties have 30 days from receipt of the appeal notice to file briefs and another seven days to file a response to the briefs. There are no appearances or testimony during the appeals process. The ARB must issue a written finding within 45 days after submission of the briefs.

PENNSYLVANIA

The Pennsylvania State Board of Medicine is a gubernatorialy appointed board within the Department of State's Bureau of Professional and Occupational Affairs (BPOA). It is funded by medical professional licensing and registration fees and consists of 11 members:

1. the BPOA commissioner;

2. the secretary of health or his or her designee;

3. six licensed physicians practicing in the state for at least five years;

4. one state-licensed or certified nurse-midwife, physician assistant, perfusionist, or respiratory therapist; and

5. two public members

Board Functions

Both the board and the Department of State share responsibility for the licensure and discipline of physicians, physician assistants, radiology technicians, respiratory therapists, nurse-midwives, acupuncturists, and athletic trainers. The department performs all administrative functions for the board, including administering licensing exams; reviewing license candidate qualifications and eligibility; investigating complaints against licensees; and administering the state's Professional Health Monitoring Program, which coordinates treatment for medical professionals with physical or mental impairment. The board advises on and supervises the administration and content of licensure exams, hears and decides matters concerning license suspension and revocation, makes final disciplinary decisions against practitioners, and imposes sanctions where appropriate.

Disciplinary Procedures

The board and the Department of State play separate and distinct roles in disciplining physicians. The department's Professional Compliance Office receives and screens all complaints concerning licensed physicians. Complaints are then investigated by the Bureau of Enforcement and Investigation. As part of the investigative process, the bureau obtains all relevant records, interviews witnesses, and obtains expert opinions.

The bureau's investigation findings are reviewed by the board's prosecuting attorney to determine whether the case will be dismissed or sufficient evidence of misconduct exists to warrant the prosecuting attorney filing formal disciplinary charges. Some cases are settled through a consent order while others are referred to a gubernatorialy appointed hearing examiner (employed by the board) for a full evidentiary hearing.

The board then reviews the hearing examiner's proposed final decision. It may adopt, modify, or remand the decision for further review or the taking of additional evidence. A final decision is rendered in the form of an adjudication and order, generally within six months of charges being filed. The order may include various forms of disciplinary action, including license revocation or suspension, retraining, reprimand or censure, probation, fines and practice limitation. Board decisions may be appealed within 30 days to the Commonwealth Court (one of the two statewide intermediate appellate courts).

RESOURCES

Connecticut Medical Examining Board, http://www.ct.gov/dph/cwp/view.asp?a=3143&q=388902, last visited on December 4, 2009.

Federation of State Medical Boards, State of the States: Physician Regulation 2009, http://www.fsmb.org/m_pub.html, last visited on December 4, 2009.

Maryland Board of Physicians, http://www.mbp.state.md.us/, last visited on December 4, 2009.

Massachusetts Board of Registration in Medicine, http://www.massmedboard.org/, last visited on December 4, 2009.

New York State Board of Professional Medical Conduct 2007 Annual Report, http://www.health.state.ny.us/professionals/doctors/conduct/annual_reports/2007/, last visited on December 4, 2009.

New York State Education Department, Office of the Professions, http://www.op.nysed.gov/, last visited on December 4, 2009.

New York State Department of Health, Office of Professional Medical Conduct, http://www.health.state.ny.us/professionals/doctors/conduct/, last visited on December 4, 2009.

Pennsylvania State Board of Medicine, http://www.dos.state.pa.us/bpoa/cwp/view.asp?a=1104&q=432799, last visited on December 4, 2009.

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