Medical Practice Act Changes

James A. DiRenna, Jr., DO, is President of the Board of Registration for the Healing Arts. Currently serving as MSMA Seventh District Councilor, he has been an Association member since 1996 and a member of the Missouri Association of Osteopathic Physicians and Surgeons since 1983. He practices Family Medicine in St. Joseph

During the 2011 Legislative Session, significant changes were made to chapter 334 RSMo, the statutes that govern the practice of physicians in the State of Missouri. This article highlights some of the changes made.

Several sections in the statute were amended to require the entering of a default judgment when a served party fails to attending a hearing. In other words, if the Board seeks discipline against a physician’s license for a violation of Chapter 334 RSMo and the physician chooses not to provide evidence supporting a defense, the entity responsible for hearing the Board’s complaint will be required to render a decision based on the information submitted by the Board in lieu of the Board also preparing and presenting an oral case in a hearing format. These amendments create an administrative practice similar to that of the circuit court and will save the Board and Administrative Hearing Commission (AHC) both time and resources.

Section 324.001 expands the information available to the public about a physician. The previous statute authorized the Board to release the physician’s addresses (including home address), license number, date of issuance, licensure status and whether or not disciplinary action had been taken against their license. The new law expands the information available from the Board to include professional schools attended, specialty certifications, discipline by another state or agency (such as the Bureau of Narcotics and Dangerous Drugs), limitations placed on a licensee’s practice by a court, and pending AHC complaints. All of the new information is currently available to the public through the internet and other sources (i.e. AHC website, American Board of Medical Specialties’ website, Case. net, BNDD’s website, etc.). This amendment allows patients to conduct research on their physician in a simplified manner. As with the previous statute, the Board may share confidential information about its licensees with another state’s licensing authority, pursuant to a court order or to other administrative or law enforcement agencies acting within the scope of their statutory authority. As with the previous statute, information obtained from a federal administrative or law enforcement agency will be disclosed only after the Board has obtained consent to the disclosure from that agency.

Section 334.070 was amended to delete the requirement that the Board must release a physician’s home address. The Board sought this amendment for the personal safety of its licensees.

Section 334.040 was amended to provide the Board with additional tools to ensure applicants are competent to practice. This amendment says if an applicant has failed a licensing examination more than three times, they must provide proof of specialty board certification prior to licensure. Another amendment within this section authorizes the Board to require an examination, continuing medical education or further training of applicants who have not actively engaged in the practice of clinical medicine or held a teaching or faculty position in an American Medical Association (AMA), a Liaison Committee on Medical Education (LCME) or an American Osteopathic Association (AOA) approved school for two years in the three-year period immediately preceding the filing of their application for licensure.

Section 334.099 was created as a re-write of Section 334.100.2 (25). Since the early 1990s, the Board has had the ability to notice a physician for a probable cause hearing to assess ability to practice with reasonable skill and safety by reasons of medical or osteopathic incompetency, or because of illness, drunkenness, excessive use of drugs, narcotics, chemicals, or as a result of any mental or physical condition. The probable cause hearing consisted of the physician responding to hypothetical scenarios of patient encounters posed by Board members. Following the questioning of the physician, the Board made a decision, based on the answers provided by the physician, whether or not it believed there was probable cause to question the physician’s competency. This section says if the Board found probable cause to question the physician’s competency, it could require the physician to successfully complete the Federation of State Medical Boards Special Purpose Examination (SPEX) or convene a three-member panel to examine the physician. If a panel was created, the Board selected a member of the panel, the licensee selected a member of the panel, and these two panel members selected the third member of the panel.

This process was cumbersome and difficult to execute. The re-write of this section requires the Board’s attorney to provide evidence of incompetency, and the licensee and their attorney have the right to provide evidence of competency to the Board in a contested hearing. If, after hearing the evidence, the Board finds there is reasonable cause to believe the physician is incompetent, the physician will be directed to complete an assessment from a nationally recognized facility created for this purpose. Two facilities the Board currently uses are the Center for Personalized Education for Physicians (CPEP) located in Denver, Colorado, and the Physician Assessment and Clinical Education Program (PACE), located in San Diego, California. After an assessment is completed, the Board is required to hold a second hearing to review the report to determine if the licensee is unable to practice with reasonable skill and safety. If the Board finds there is clear and convincing evidence against the licensee, an order of discipline will be issued. The disciplinary order can be appealed by the licensee to the circuit court.

This process was modified to provide the Board and licensee with a structured process to present evidence regarding a physician’s competency and to provide the Board with the ability to refer physicians to facilities that specialize in determining competency.

Section 334.100 lists the causes for which the Board may pursue disciplinary action against a physician’s license. This section was amended to include, as additional grounds for discipline, being listed on a state or federal sexual offender registry; unethical or unprofessional conduct involving a minor; knowingly making a false statement to the Board; habitual intoxication or dependence on alcohol; failure to comply with a treatment program and voluntary termination of a controlled substance authority while under investigation.

The previous statute required the Board to show alcohol impaired the physician’s ability to practice medicine. This meant the Board had to prove the physician was intoxicated while at work or unable to work due to alcohol use. The Board will now be able to use evidence that the physician has had two or more driving while intoxicated convictions as evidence of habitual use or dependence on alcohol. The Board believes a licensee, who has been involved in two or more alcohol-related incidents outside of work, has a high potential to eventually harm a patient. It is the Board’s hope that action can now be taken sooner, and the physicians obtain assistance before harm occurs to a patient or themselves.

As with all causes of discipline, it is always within the Board’s discretion whether or not to pursue discipline against a physician’s license. When reviewing cases, the Board takes into consideration such things as harm or potential harm to patients, the type and date of the offense, previous discipline and/or complaints, and rehabilitation efforts, if any. The Board has several options for discipline, including reprimand, probation, suspension, restriction and revocation.

Section 334.102, the emergency suspension statute, was amended to clarify the criteria the Board must meet to obtain an emergency suspension or restriction of a physician’s license. In the previous statute, the Board was required to prove all of the following:

Licensee is physically or mentally unable to receive and evaluate information or another agency issued an order suspending or restricting their license or the licensee engaged in repeated acts of life-threatening negligence; and

The acts, conduct or condition of the licensee constitute a clear and present danger to the public health and safety.

The new statute says the Board may apply to the AHC for an emergency suspension for one of the following causes:

Engaging in sexual conduct with a patient who is not the licensee’s spouse, regardless of whether the patient consented;

Possession of a controlled substance in violation of chapter 195 or any state or federal law, rule, or regulation, excluding record keeping violations;

Habitual intoxication or dependence upon alcohol or controlled substances or failure to comply with a treatment or aftercare program entered into pursuant to a Board order, settlement agreement, or as part of the licensee’s professional health program;

A report from a Board approved facility or a professional health program stating the licensee is not fit to practice.

Any conduct for which the Board may discipline that constitutes a serious danger to the health, safety, or welfare of a patient or the public.

Prior to the AHC determining if an order suspending or restricting a license should be issued, the Board must submit affidavits and, if applicable, court records to the AHC with a complaint alleging the facts. Within one business day of filing a complaint, the AHC must provide the Board with a service packet which includes a copy of the complaint, information supporting the allegations and the date of the hearing. The Board’s staff must serve the licensee with the packet within 24 hours of receipt from the AHC. Within five days of filing an AHC complaint, the AHC shall determine if probable cause exists to suspend or restrict the license. If the AHC determines probable cause exists, an order will be issued suspending or restricting the license and an AHC hearing held within 45 days to determine if cause for discipline exists. If the AHC does not find cause for discipline, the Board will remove all reference to the emergency suspension or restriction from its public records. However, the information will remain in the Board’s files and may be used in other litigation.

Section 334.102.8 allows the Board to hold disciplinary hearings in specific cases without first filing a complaint at the AHC. These hearings involve cases where the licensee has already been found to have violated a state or federal statute, such as a criminal conviction, being judged incapacitated or disabled by a court or final discipline by another state agency. If, after hearing all of the evidence, the Board issues a disciplinary order, the licensee has the right to appeal in circuit court.

Section 334.108 clarifies online prescribing requirements. The new statute specifies that the physician must establish a valid physician-patient relationship, including obtaining a reliable medical history and performing a physical examination, prior to prescribing any drug or treatment via the Internet. The physician’s designee may meet these conditions when treatment is provided in a hospital, hospice program, home health services, through a collaborative practice arrangement, physician assistant supervision agreement, consultation with another physician or on-call or cross-coverage situations.

Section 621.100 was amended to be consistent with circuit court procedures for serving notice of a complaint to a licensee. The new statute says service can be made to the licensee, their attorney, or to a person over age 15 at the last address provided to the Board. This amendment resolves the issue of physicians evading the Board and allows hearings to proceed in a timely manner.

Significant changes were made to the statutes to assist the Board in its mission to protect the public and ensure that its licensees are treated in a fair and equitable manner. The majority of these changes will not impact most physicians. However, physicians who do violate the statutes should be disciplined in a timely manner.

Biography

James A. DiRenna, Jr., DO, is President of the Board of Registration for the Healing Arts. Currently serving as MSMA Seventh District Councilor, he has been an Association member since 1996 and a member of the Missouri Association of Osteopathic Physicians and Surgeons since 1983. He practices Family Medicine in St. Joseph.