1 Staying out of the Hot Seat with the Board of Medicine Medical Society of Northern Virginia March 16, 2011 Anisa P. Kelley, Esquire Hancock, Daniel, Johnson & Nagle, P.C Fair Ridge Drive Suite 475 South Fairfax, VA (703) Disclaimer: The content of this presentation does not constitute legal advice.

2 Why You MUST Pay Attention to the Board of Medicine 1. BOM is not your friend -- The mission of the BOM is to protect the public. 2. More investigations and more punishment

3 Why You MUST Pay Attention to the Board of Medicine - continued 3.If you are going to be sued the BOM process provides a “preview” 4.Increased publicity - BOM provides information to consumers/patients (online profile) 5.If guilty information provided to (NPDB, HIPDB, hospitals, health plans, etc.)

4 Overview What rules or laws govern this system? What are the most common violations? How does this system work? What is the disciplinary process?

5 What rules or laws govern this system? APA (§ of the Code of Virginia) APA (§ of the Code of Virginia) BOM Statutes (§ , et seq.) BOM Statutes (§ , et seq.) BOM Regulations (18VAC , et seq.) BOM Regulations (18VAC , et seq.) Drug Control Act (§ , et seq.) Drug Control Act (§ , et seq.)

6 Common violations Substandard Care Substandard Care Prescription issues (diversion, personal use, improper prescribing, impairment, pain management) Prescription issues (diversion, personal use, improper prescribing, impairment, pain management) Improper contact/relationship with patient Improper contact/relationship with patient Scope of practice issues (including for midlevels) Scope of practice issues (including for midlevels)

7 Poor record keeping Poor record keeping Failure to update practitioner profile Failure to update practitioner profile Disciplinary action in another state Disciplinary action in another state

8 Disciplinary Process ComplaintInvestigate CCA an option? IFFC/SCCFormal Circuit Court

9 Complaint Complaint Sources: Complaint Sources: Patients Patients Healthcare Practitioners Healthcare Practitioners Employers Employers Employees/Former Employees Employees/Former Employees Law Enforcement Agencies Law Enforcement Agencies Courts (Virginia and Other States) Courts (Virginia and Other States) Other Regulatory Boards Other Regulatory Boards Concerned Citizens Concerned Citizens BOM Itself BOM Itself

10 Complaint After the Complaint is Filed: After the Complaint is Filed: The Department of Health Professions reviews the complaint to determine whether allegation warrants further inquiry. The Department of Health Professions reviews the complaint to determine whether allegation warrants further inquiry. If not, matter is closed. If not, matter is closed. If so, case is opened, assigned a priority and If so, case is opened, assigned a priority and forwarded to an investigator. forwarded to an investigator. Complainant is notified of final outcome of complaint. Complainant is notified of final outcome of complaint.

11 Investigation Investigator from Enforcement Division interviews complainant and other witnesses and obtains relevant documents. Investigator from Enforcement Division interviews complainant and other witnesses and obtains relevant documents. Investigator contacts physician to request documents and may request interview. Investigator contacts physician to request documents and may request interview. Investigator interviews other relevant witnesses. Investigator interviews other relevant witnesses.

12 Investigation Investigator prepares report of findings and submits report, together with all records and evidence, to BOM for probable cause determination. Investigator prepares report of findings and submits report, together with all records and evidence, to BOM for probable cause determination. If no probable cause exists, case is closed. If no probable cause exists, case is closed.

13 If Probable Cause Exists: Confidential Consent Agreement (CCA) Confidential Consent Agreement (CCA) Consent Agreement Consent Agreement Informal Conference/SCC Informal Conference/SCC Formal Hearing Formal Hearing Immediate Action (Summary/Precautionary Suspension) Immediate Action (Summary/Precautionary Suspension) “If there is a substantial danger to the public health...” § of the Code of Virginia

14 Pre-Conference Actions Physician may request a pre-hearing consent agreement from the Board of Medicine Physician may request a pre-hearing consent agreement from the Board of Medicine May be ratified by a committee in most cases May be ratified by a committee in most cases If suspension or revocation is the sanction, the full Board must approve the consent agreement. If suspension or revocation is the sanction, the full Board must approve the consent agreement.

15 Informal Conference Board of Medicine sends notice letter and evidence to physician. Board of Medicine sends notice letter and evidence to physician. Includes allegations and important dates.Includes allegations and important dates. Physician may provide evidence to Board. Physician may provide evidence to Board. Physician may be represented by legal counsel. Physician may be represented by legal counsel.

16 Informal Conference Most portions of the Informal Conference are open to the public. Most portions of the Informal Conference are open to the public. Focus of Informal Conference is to determine whether physician’s actions violated statutes. Focus of Informal Conference is to determine whether physician’s actions violated statutes. Counsel may offer opening and/or closing statement and discuss legal matters with Board, but do not answer factual questions for physician.Counsel may offer opening and/or closing statement and discuss legal matters with Board, but do not answer factual questions for physician. Physician’s goal is to explain, not argue.Physician’s goal is to explain, not argue. Non-adversarial proceeding, although Commonwealth’s interests are represented. Non-adversarial proceeding, although Commonwealth’s interests are represented. “Informal” is a misnomer. “Informal” is a misnomer.

17 Members of Informal Conference Committee Committee consists of two or three members of the Board of Medicine. Committee consists of two or three members of the Board of Medicine. Committee is supported by Committee is supported by Executive Director of Board of MedicineExecutive Director of Board of Medicine Deputy Executive Director (Discipline)Deputy Executive Director (Discipline) Administrative Proceedings DivisionAdministrative Proceedings Division Assistant Attorney General--maybeAssistant Attorney General--maybe Only the Members of the Committee determine the Findings of Fact, Conclusions of Law and Sanctions, if any. Only the Members of the Committee determine the Findings of Fact, Conclusions of Law and Sanctions, if any.

18 Findings of Informal Conference Board of Medicine bears burden of proof to find violations and impose sanctions. Board of Medicine bears burden of proof to find violations and impose sanctions. Possible findings and sanctions: Possible findings and sanctions: No violation - case dismissed and closed. No violation - case dismissed and closed. Violation but no sanction - matter closed or continued generally. Violation but no sanction - matter closed or continued generally. Appropriate continuing medical education. Appropriate continuing medical education. Reprimand. Reprimand. Terms and conditions. Terms and conditions. Probation. Probation. Monetary penalty. Monetary penalty. Referral to formal hearing including for suspension or revocation. Referral to formal hearing including for suspension or revocation.

19 Informal Conference Sanctions Once final, most sanctions are reportable to Healthcare Integrity and Protection Data Bank (HIPDB) and the National Practitioner Data Bank (NPDB). Once final, most sanctions are reportable to Healthcare Integrity and Protection Data Bank (HIPDB) and the National Practitioner Data Bank (NPDB). You will also likely have to report the sanction on applications for medical malpractice insurance, applications for privileges at hospitals, and applications to practice in other states. Health plans (Anthem) may take action/remove you. You will also likely have to report the sanction on applications for medical malpractice insurance, applications for privileges at hospitals, and applications to practice in other states. Health plans (Anthem) may take action/remove you. Findings of violation and sanctions become final 33 days after the order is entered and mailed to the physician. Findings of violation and sanctions become final 33 days after the order is entered and mailed to the physician.

20 Formal Hearing Formal Hearing is an adversarial, trial-like proceeding. Formal Hearing is an adversarial, trial-like proceeding. The Board bears the burden of proof. The Board bears the burden of proof. Commonwealth is represented by Assistant Attorney General. Commonwealth is represented by Assistant Attorney General. Physician may be represented by counsel. Physician may be represented by counsel. Physician and Commonwealth may issue subpoenas and present evidence and witnesses. Physician and Commonwealth may issue subpoenas and present evidence and witnesses.

21 Formal Hearing Sanctions At a Formal Hearing, the Board of Medicine may impose the full range of sanctions: revocation, suspension, probation, terms and conditions, etc. At a Formal Hearing, the Board of Medicine may impose the full range of sanctions: revocation, suspension, probation, terms and conditions, etc. Findings of violation and sanctions become final 33 days after the order is entered and mailed to the physician. Findings of violation and sanctions become final 33 days after the order is entered and mailed to the physician. Physician may appeal to circuit court, but the findings are not automatically vacated. Physician may appeal to circuit court, but the findings are not automatically vacated. Unless vacated, the findings are reportable to the HIPDB and NPDB. Unless vacated, the findings are reportable to the HIPDB and NPDB.

22 Circuit Court Appeal Circuit Court reviews Formal Hearing records and legal arguments to determine whether Board of Medicine has committed an error of law. Circuit Court reviews Formal Hearing records and legal arguments to determine whether Board of Medicine has committed an error of law. Court relies on evidentiary record provided by Board of Medicine for factual matters. Court relies on evidentiary record provided by Board of Medicine for factual matters. Physician appellant bears burden of proof that Board of Medicine committed legal error. Physician appellant bears burden of proof that Board of Medicine committed legal error. If “substantial evidence” on the record supported Board’s decision, court will affirm Board of Medicine’s final order. If “substantial evidence” on the record supported Board’s decision, court will affirm Board of Medicine’s final order.

23 STATISTICS Over 32,000 physicians licensed Over 32,000 physicians licensed BOM received 1,680 complaints BOM received 1,680 complaints BOM has 514 cases “open” BOM has 514 cases “open” Average age of a case closed is days Average age of a case closed is days

24 Key Points to Remember Know the laws and regulations. Know the laws and regulations. Call a healthcare attorney as soon as you know of an investigation – before talking/meeting with an investigator. Your malpractice carrier may pay for your attorney. Call a healthcare attorney as soon as you know of an investigation – before talking/meeting with an investigator. Your malpractice carrier may pay for your attorney. Explore Confidential Consent Agreements/ Consent Agreements early in process. Explore Confidential Consent Agreements/ Consent Agreements early in process.

25 QUESTIONS?

26 Anisa P. Kelley Hancock, Daniel, Johnson & Nagle, P.C Fair Ridge Drive, Suite 475 South Fairfax, Virginia Phone: (703) Fax: (703)