California Medical Board Abandons Replacement for Physician Diversion Program

$11 a year. That’s how much less California physicians will pay ($22 biannually) as a result of the abandonment of the Medical Board of California’s (MBC) decision to abandon its Diversion Program altogether. The MBC published its “Final Statement of Reasons” today, explaining further its decision not only to let the Diversion Program die, but also not to replace it with an alternative as many had expected.

The Diversion Program had served as an option for physicians struggling with chemical dependency/substance abuse or other mental health issues to “self-refer” and address their challenges in a confidential setting. In exchange for confidentiality, doctors were evaluated for their safety level and monitored for any drug use, participating in facilitated groups. In addition, the Board had referred physicians with these issues into the Diversion Program as a condition not to pursue disciplinary relief or as term of probation in disciplinary orders.

The death of the Diversion Program as of June 30, 2008 was a victory for advocates of a zero tolerance approach to substance abuse, who had identified shortcomings in the program which led to its suspension. Opponents, such as Julianne Fellmeth, made themselves heard at a January 2008 “summit” and succeeded in blocking an alternative.

The absence of the Diversion Program creates risks of which physicians struggling with chemical dependency or mental health issues need to be aware. There is no prospect of a “safe harbor” for physicians seeking treatment; if the MBC discovers the problem, it now takes a zero tolerance approach and has the right to institute a disciplinary action. A single incident, such as a DUI, may be sufficient to trigger a licensing action. Physicians should do their best to ensure that any treatment sought is kept strictly confidential. For physicians who are ordered to undergo biological fluid testing as a condition of probation, the prospect of a positive test is likely to result in a petition to revoke probation. Zero tolerance advocates may think the end result is better patient safety. It would be interesting to consider the extent to which the opposite may be true: physicians have more incentive than ever to keep chemical dependency and mental health issues secret.

Medical Board Spends $35 Million Disciplining 314 Doctors

The Medical Board of California released its 2007-08 Annual Report today.

The report has some jaw-dropping numbers. Among other things, the Board spent over $35 million of its $53 million in revenues on “enforcement operations,” i.e.investigating complaints against doctors, and “legal and hearing services,” i.e. paying the Department of Justice to prosecute doctors and paying the Office of Administrative Hearings to hear those prosecutions. These totals are staggering in light of the product of all of that effort: 314 physicians were disciplined. Of those, 32 physicians had their licensed revoked, 70 surrendered their licenses, 91 were placed on probation, and 87 received a letter of reprimand, which is the most mild form of discipline imposed. Even if you count the lowest level forms of discipline, this works out to over $113,000 spent for every physician disciplined.

The story gets even more outrageous when you drill down into the kinds of cases that the Medical Board elects to pursue. Sensitive to complaints about its performance, the Board only gets to the numbers posted in its report by seeking discipline for non-serious conduct, such as poor recordkeeping and by insisting on discipline even when physicians can demonstrate that issues like recordkeeping were fixed well before the investigation event started.

The Annual Report offers excuses — most notably that “[r]etention [of investigators] remains a serious problem.” The Board correctly notes that any investigators who can get jobs in other parts of the government do so because of the poor pay.

It’s little wonder that Governor Schwarzenegger made a serious proposal for the outright abolition of the Board a few years ago. That $35 million could be better spent paying down the state budget deficit.

California Board of Registered Nursing Takes Action

ProPublica reports that, in response to the recent story about the failure of the California Board of Registered Nursing to investigate nurses with multiple criminal convictions, the Board has signaled that it will begin requiring nurses to disclose criminal convictions in the reapplication process. In addition, fingerprinting of nurses who were licensed before the fingerprinting requirement took effect will be required prior to re-licensure.

Training Staff to Communicate with Older (and Younger) Patients

Reporting a new study on the damaging physical consequences of “elderspeak” (talking to the elderly in a sweet but condescending manner), the New York Times quotes a researcher that the “the worst offenders are often health care workers.” The study reviewed videotaped interactions in a nursing facility, and found that “elderspeak” raised stress levels (some patients reacted with hostility and others with anger) and correlated with shorter lifespans and diminished performance.

Recommended Action: The study highlights the problem of lack of training of health care workers, whether in nursing facilities or in private practices, on how to communicate with patients. The negative effects of condescending communications on patient health are just one of many reasons why providers need to train staff how to communicate with patients. Providers cannot avoid dependence on staff to communicate with patients, and need to ensure that staff are assets and not liabilities when talking with patients, both in person and over the phone.

Perhaps the biggest benefit of training staff is that effective communication with patients generates good will and establishes a rapport that deters lawsuits and licensing complaints. Often, for example, patients sue or complain to licensing boards based on the belief that the provider and staff just “didn’t care”; unreturned calls, unanswered questions, and impersonal interactions generate ill will and negative impressions that make suing or complaining seem like the best thing to do.

When training staff on good communication, possible areas to consider include:

• preparing answers to frequently asked questions for staff reference;
• training staff to respond to anger or frustration with empathy and professionalism (rather than defensiveness);
• training staff to use rephrasing (active listening) to convey understanding and anticipated follow up when an immediate solution to a problem is unavailable;
• training staff on how to involve patients in problem-solving;
• training staff on how ot identify and deal with “problem patients”;
• training staff how and when to apologize and thank patients for calling attention to a problem;
• establishing systems for feedback from patients and staff (e.g. patient surveys and meetings with staff)
• especially good way to obtain feedback from patients who are uneasy about voicing their dissatisfaction.

Ultimately, providers need to train staff to think of themselves as customer service representatives and to treat patients as the staff would want to be treated if they were the patients. It is amazing how far genuine warmth and caring can go in disarming even the most challenging people.

Harry Nelson is a partner in Fenton & Nelson, LLP. Fenton & Nelson counsels healthcare providers on risk management and business issues related to their practices. For additional information, please contact him at harry@fentonnelson.com

©Harry Nelson 2008

Governor Vetoes Donda West Cosmetic Surgery

Governor Arnold Schwarzengger has unexpectedly vetoed Assembly Bill 2968, the Donda West Law, which had easily passed the California Legislature roughly six weeks ago. The governor cited the state budget crisis and the limited ability to attend to other matters as the reasons for the veto, which was one of 131 bills vetoed on the same day (along with 64 signatures).

In light of the veto, California physicians (and dentists) are not required by law to obtain physical examinations of patients and clearance prior to performing cosmetic procedures. Nonetheless, such exams are asserted by the Medical Board of California to be standard of care (whether performed by the operating physician, nurse practitioner, or physician assistant, or, alternatively, by a primary care doctor).

Recommended Action: Irrespective of the veto, physicians (and dentists) should ensure that the documentation of a physical exam, including a complete medical history, is part of every patient chart prior to performing any cosmetic procedure. Although the passage of the law would have increased the potential penalty, in the absence of a new law, the Medical Board of California will nonetheless continue to initiate disciplinary actions routinely for violation of this standard.

Harry Nelson is a partner in Fenton & Nelson, LLP. Harry conducts audits and training programs for plastic surgeons and cosmetic healthcare providers to ensure effective risk management and compliance in medical practice. For additional information, please contact him at harry@fentonnelson.com

©Harry Nelson 2008

Is criminal and Medical Board prosecution of pain medicine prescribers overstated?

Barry Meier reports in the New York Times that, between 1998 and 2006, the rate of prosecution of physicians (criminal and administrative, i.e. Medical Board) for inappropriate prescription of pain medication was roughly .1%. Although this number may sound low, based on the media attention and the climate of fear among physicians related to this issue, the statistic is of dubious comfort to California physicians, given that this remains a relative priority on the Medical Board’s enforcement agenda. Moreover, the study appears to ignore a significant, countervailing development in recent years: DEA enforcement. Using enhanced data-mining capacity to track unusual patterns (e.g. specialties not ordinarily treating pain) and high volume prescribers, the DEA has become increasingly aggressive in enforcing DEA regulations concerning recordkeeping, storage, prescription, and dispensation of narcotic pain medications. (California has distinct pain medication regulatory requirements as well, albeit ones that are subject to lower levels of enforcement.) With civil monetary penalties set at $10,000 per violation, physicians who prescribe pain medication cannot afford to take legal compliance lightly when it comes to pain medication.

Is Advising Patients to Stop Smoking Becoming Standard of Care?

TheNew York Times reports on the trend of plastic and cosmetic surgeons refusing to operate on patients who smoke based on reduced blood supply to the skin and related complications. According to the article, the trend has accelerated over the past five to ten years to the extent that Dr. Patrick McMenamin, the president-elect of the American Academy of Cosmetic Surgery, claims that, although it may have been acceptable 25 years ago, today many surgeons would deem it malpractice to perform flap surgery on a known smoker. The article describes how some physicians are even going to the extreme of obtaining urine tests to verify cessation, rather than relying on checking skin condition and smell to detect nicotine.

Recommended Action: The trend of refusing to operate on smokers raises a question of how standard of care is defined and how it evolves. The question is relevant both for malpractice purposes (where plaintiffs must establish that the standard of care has been breached in a particular case) and disciplinary licensing actions (where, in California, a single gross departure from standard of care or repeated simple departures will support a disciplinary action by a licensing board).

Generally, standard of care is defined as the prevailing understanding among similarly qualified, reasonably prudent practitioners in a given community as to how patients in similar circumstances should be treated. It can be difficult to ascertain what the standard of care is without identifying how practitioners in a particular community are treating patients. In many cases, there may be a range of acceptable options from which to choose that are within the standard of care. Applying this standard to the issue of smoking cessation, plastic and cosmetic surgeons should consider whether and, if so, how the standard of care on this issue may have evolved or be evolving.

Harry Nelson is a partner in Fenton & Nelson, LLP. Fenton & Nelson counsels healthcare providers on regulatory compliance and business matters. For additional information, please contact him at harry@fentonnelson.com

©Harry Nelson 2008