Unprofessional Conduct …and Controlled Substance Abuse

The Basics In the United States, medical licensure boards are professional boards, rather than administrative boards In the United States, medical licensure boards are professional boards, rather than administrative boards 70 boards, some states with separate MD and DO boards (Oklahoma), others are combined (Missouri) 70 boards, some states with separate MD and DO boards (Oklahoma), others are combined (Missouri) All have an enabling statute that defines the powers of the Board, which can and do vary significantly across the USA All have an enabling statute that defines the powers of the Board, which can and do vary significantly across the USA

Unprofessional Conduct Board powers are defined by the Enabling Statute and by Rules and Regulations, promulgated by the Board… Board powers are defined by the Enabling Statute and by Rules and Regulations, promulgated by the Board… Rules and Regulations are developed over years, based on the experience of governance by the Board Rules and Regulations are developed over years, based on the experience of governance by the Board In Oklahoma, a rule is proposed by the Board, approved by both the Legislature and the Governor of the State, following a public hearing process, and has the effect of law In Oklahoma, a rule is proposed by the Board, approved by both the Legislature and the Governor of the State, following a public hearing process, and has the effect of law Board Policy Statements give a sense of the Board’s use of the Statute and Rules and Regulations, but do not have the force of law Board Policy Statements give a sense of the Board’s use of the Statute and Rules and Regulations, but do not have the force of law

Unprofessional Conduct The traditional actions of a licensure board have included drug/alcohol abuse, narcotic or controlled substance diversion, and sexual boundary violations The traditional actions of a licensure board have included drug/alcohol abuse, narcotic or controlled substance diversion, and sexual boundary violations Areas such as incompetence, illegitimate business practices, abusive behavior and supervision of employed professionals or staff have only recently become important Areas such as incompetence, illegitimate business practices, abusive behavior and supervision of employed professionals or staff have only recently become important

The public Board Agenda for September 2010 shows a typical mix of case allegations The public Board Agenda for September 2010 shows a typical mix of case allegations Controlled substances, alcohol, sexual boundary violations Quality Assurance, Incompetence, supervision of staff

Unprofessional Conduct Unprofessional Conduct is defined in the enabling Statue Title 59 OS, Section 509 (19 provisions) and Oklahoma Administrative Code Title 435: (49 provisions) Unprofessional Conduct is defined in the enabling Statue Title 59 OS, Section 509 (19 provisions) and Oklahoma Administrative Code Title 435: (49 provisions) 12/19 of the statutory provisions and 12/49 of the Rules and Regulations deal directly or indirectly with controlled substances 12/19 of the statutory provisions and 12/49 of the Rules and Regulations deal directly or indirectly with controlled substances

Unprofessional Conduct From a broad social viewpoint, Unprofessional Conduct is divided into two groups: From a broad social viewpoint, Unprofessional Conduct is divided into two groups: (1) Drug/Alcohol violations, Fraud/Felony convictions and Sexual Boundary violations, which are problems of society at large… (1) Drug/Alcohol violations, Fraud/Felony convictions and Sexual Boundary violations, which are problems of society at large… (2) Professional Standards violations, such as abusive behavior, negligence, paraprofessional supervision, and standards of care, including informed consent, confidentiality, misrepresentation of skill… Quality Assurance issues from inside the profession (2) Professional Standards violations, such as abusive behavior, negligence, paraprofessional supervision, and standards of care, including informed consent, confidentiality, misrepresentation of skill… Quality Assurance issues from inside the profession

Unprofessional Conduct The majority of the Board’s actions have to do with the first group of issues (“sex and drugs”), and violations in these areas are well-defined, well understood… The majority of the Board’s actions have to do with the first group of issues (“sex and drugs”), and violations in these areas are well-defined, well understood… The public at large (and the Legislature) believe the Licensure Board deals with Quality Assurance issues, wants us to do more in this area than has been done traditionally… The public at large (and the Legislature) believe the Licensure Board deals with Quality Assurance issues, wants us to do more in this area than has been done traditionally… Career-long professional competence Career-long professional competence A far more contentious area of enforcement, which Licensure Boards…in general…do less well (See Handout, “Commentary” by Steven Altchuler) A far more contentious area of enforcement, which Licensure Boards…in general…do less well (See Handout, “Commentary” by Steven Altchuler)

Unprofessional Conduct Controlled substances (legal or illegal) and alcohol can be consumed by the physician (“habitual drunkenness or the habitual use of habit-forming drugs”), or “sold” to others (diverted) in exchange for a fee (money or goods) or sexual contact Controlled substances (legal or illegal) and alcohol can be consumed by the physician (“habitual drunkenness or the habitual use of habit-forming drugs”), or “sold” to others (diverted) in exchange for a fee (money or goods) or sexual contact The internet has expanded the ways and degree to which such violations can occur The internet has expanded the ways and degree to which such violations can occur

Unprofessional Conduct Federal and State law now govern off-shore and interstate prescribing of controlled/addicting drugs using the internet Federal and State law now govern off-shore and interstate prescribing of controlled/addicting drugs using the internet A recent change in the Oklahoma Rules and Regulations impact the use of all medications A recent change in the Oklahoma Rules and Regulations impact the use of all medications The “Face-to-Face” Rule… The “Face-to-Face” Rule…

Unprofessional Conduct The Face-to Face Rule [435:10-7-4(49) Unprofessional Conduct], combined with the definition of The Physician/Patient Relationship [435: Definitions] are the key provisions for deciding the intersection between the traditional areas of enforcement (“sex and drugs”) and professional standards violations The Face-to Face Rule [435:10-7-4(49) Unprofessional Conduct], combined with the definition of The Physician/Patient Relationship [435: Definitions] are the key provisions for deciding the intersection between the traditional areas of enforcement (“sex and drugs”) and professional standards violations

Unprofessional Conduct Without a professional relationship, sexual boundary violations are absent Without a professional relationship, sexual boundary violations are absent Narcotic Diversion violations normally include findings of a sham professional relationship Narcotic Diversion violations normally include findings of a sham professional relationship A face-to-face encounter impacts virtually all of the internet prescribing schemes, illegitimate telemedicine practices, and paraprofessional supervision violations (“franchising” schemes) A face-to-face encounter impacts virtually all of the internet prescribing schemes, illegitimate telemedicine practices, and paraprofessional supervision violations (“franchising” schemes) Arguably, the final frontier for maintaining professional competence and quality health care in a very politically motivated legal environment Arguably, the final frontier for maintaining professional competence and quality health care in a very politically motivated legal environment

A final word to the wise… A final word to the wise…

The Oklahoma Health Professionals Program “A confidential, effective, compassionate approach to recovery and treatment for physicians and medical professionals who are experiencing difficulty with substance abuse and/or behavioral issues” Lanny Anderson

Unprofessional Conduct Thank You Thank You