HEALTH (GENERAL); OCCUPATIONS (GENERAL); PHYSICIANS; STATE BOARDS AND COMMISSIONS;
PHYSICIANS;
October 3, 2003 |
2003-R-0714 | |
MEDICAL EXAMINING BOARD MODEL | ||
| ||
By: Saul Spigel, Chief Analyst | ||
You asked us to compare Connecticut’s approach to physician discipline with a national model.
SUMMARY
The Federation of State Medical Boards (FSMB), the national umbrella organization of 65 state and territorial medical and osteopathic examining boards, adopted its 10th edition of a Guide to the Essentials of a Modern Medical Practice Act in 2003. It (and its companion piece, Elements of a Modern State Medical Board, 1998) covers medical board composition, powers and duties, and funding; physician examination and licensure; disciplinary procedures and actions; and confidentiality, among other issues.
The FSMB model is based on the presumption of an accountable board, regardless of the state’s administrative structure, but its recommendations appear to presume an independent board. In Connecticut, however, the Department of Public Health (DPH) performs most of the functions related to physician licensure and discipline. The Medical Examining Board is not fiscally independent, and its principal role is to advise DPH in its licensure-related tasks and make final disciplinary decisions based on findings and recommendations from hearing panels composed of board members and others. (A description of Connecticut’s disciplinary process, OLR report 97-R-0891, is attached. )
The tables below briefly outline the elements of the model act dealing with the board’s role, particularly concerning physician discipline, and compares them to the Connecticut statutes (CGS §§ 19a-8 to –17 and 20-8a to –13i) that provide the basis for this state’s system for disciplining doctors. Among the principal differences they show between the model act and Connecticut law are that the model calls for the board to:
1. set licensing fees and receive all revenue from them for its functions;
2. hire (and fire) its own staff;
3. evaluate medical education and applicant training, select and administer exams, and license practitioners;
4. directly receive complaints about physicians, investigate them, and adjudicate them when needed (the model specifies that investigation and adjudication must be conducted by different individuals); and
5. make public its findings of fact and conclusions of law when it disciplines a doctor.
The model also contains (1) many more grounds for taking disciplinary action than Connecticut law provides, including several concerning relationships with patients, and (2) several sanctions not found here, such as paying a third party and doing charity work.
BOARD COMPOSITION
Element |
FSMB Model |
Connecticut |
Number of members |
12 to 24; 25% public members (board should be large enough to allow recusal for conflict of interest and occasional absences |
• 15 members: • 9 physicians: 5 practicing in state, plus 1 from UConn Med School, 1 full-time general hospital chief of staff, 1 general hospital doctor who supervises physician assistants, 1 osteopath, • 1 physician assistant • 5 public members |
-Continued-
Element |
FSMB Model |
Connecticut |
Qualifications |
• Physician members should be of recognized professional ability, integrity, and good reputation who have actively practiced in state for preceding 5 years under unrestricted license • Public members must be people of integrity and good reputation |
• Professional members must be in good professional standing • No qualifications for public members |
Conflict of interest |
• Public members should have no substantial personal, business, professional, or pecuniary interest with a healing art or medical education or health care faculty • No member can be an officer, board member, or employee of a statewide medical or peer review organization |
• State ethics code applies to all board members • Public members may not be directly related to physician or physician assistant or have substantial financial interest in, be employed by, or affiliated with any institution or profession related to the board • Professional members may not be elected or appointed officers of a professional society or organization for at least 1 year before appointment |
Training |
Board must conduct & new members must attend a training session to familiarize themselves with board duties |
No provision |
Removal |
Board member should be removed if: • no longer qualified • found guilty of a felony • found guilty of malfeasance, misfeasance, or nonfeasance in relation to board duties • found mentally incompetent • fails to attend 50% of meetings in a year or 1st year board member training without good cause |
A member who fails to attend 3 consecutive meetings or 50% of meetings in calendar year is deemed to have resigned |
BOARD POWERS AND DUTIES
FSMB Model |
Connecticut |
• Adopt governing rules & regulations • Hire, discipline & fire staff • Select & administer licensing exams • Evaluate medical education & applicant training • Issue or deny initial, endorsement, or renewal licenses • Develop ways to identify doctors who violate medical practice act • Receive, review, & investigate complaints about licensees from individuals, health care organizations and providers, law enforcement & state agencies • Issue subpoenas, receive testimony, & conduct hearings • Discipline licensees • Institute actions in own name & enjoin violators of practice act • Establish fees to support activities & adopt budget • Develop public and professional education programs |
Medical Examining Board: • Advises DPH on regulations to adopt for board operations & physician licensure • Advises DPH on content of exams, rules for conducting them, and passing grade • Supervises DPH conduct of exams • Serves on medical panels to hear contested cases • May issue subpoenas and compel testimony or production of evidence • Reviews & adopts, modifies, or remands hearing panel proposed decisions • Disciplines licensees ________________________________________ DPH: • Budgets and allocates General Fund appropriations for board operations • Hires & assigns staff as needed to perform board functions • Performs all administrative functions for board • Administers licensing exam under board supervision • Reviews license candidate qualifications & determines their eligibility for a license • Investigates complaints • May issue subpoenas and compel testimony or production of evidence |
BOARD FUNDING
FSMB Model |
Connecticut |
• Board should be fully supported by revenues generated from its activities, including fees, charges, and reimbursed costs • Board should be authorized to set fees and charges needed to support its operations • All revenues, except fines, should be deposited in dedicated Medical Board Account • Fines should be deposited in General Fund • A board officer should oversee revenue collection and expenditures |
• All license fees and fines deposited in General Fund • Expenditures for board functions are part of DPH budget |
DISCIPLINARY PROCEDURE
Element |
FSMB Model |
Connecticut |
Source of complaints |
Board should require all licensees to report information showing a physician’s incompetence or unprofessional conduct |
• Physicians & hospitals must report information appearing to show that another physician is unable to practice • Individuals may report such information • Health care facilities must report when they terminate or restrict a physician’s privileges • Physicians must report when another jurisdiction takes licensing action against them |
Grounds for action |
• Physically or mentally unable to engage safely in medical practice or found mentally incompetent by court • Various drug-related activities • Conviction of or pleading to felony or gross misdemeanor • Negligence in practice • Fraud or misrepresentation in obtaining or renewing a license • Disruptive behavior or interaction with peers, patients, family members that interferes with patient care • Making false or misleading statements about own skills or efficacy of treatment, etc. • Helping an unlicensed or incompetent person practice medicine • Violating patient confidentiality • Using abusive billing practices • Disciplinary action in another state or failing to report such • Failure to report liability claim settlements or awards • Commission of any act of sexual misconduct or other conduct that violates patient trust • (the model lists 42 items in all) |
• Physical illness or loss of motor skill • Mental illness • Abuse or excessive use of drugs or alcohol • Possessing, using, prescribing, or distributing controlled substances for other than therapeutic purposes • Found guilty of felony under federal or any states’ law • Illegal, incompetent, or negligent medical practice • Misrepresentation or concealment of fact to obtain license • Disciplinary action in another state • Failure to adequately supervise physician assistant • Failure to fulfill any National Health Service obligation • Failure to maintain malpractice insurance • Performing magnetic resonance imaging or anesthesia without proper accreditation or failing to provide evidence of accreditation at DPH request • Violating any provision of medical practice act or implementing regulation |
-Continued-
Element |
FSMB Model |
Connecticut |
Investigative & judicial functions |
Separate: board members who investigate do not adjudicate |
Separate: • DPH investigates petitions and refers cases where the standard of care is violated to the board • Hearing panel adjudicates (the 3-person panel is a hybrid body that must include at least 1 member of medical examining board); • medical examining board makes final decision based on hearing panel recommendation |
Informal conference before hearing |
• Yes, at board discretion • Confidential • Disciplinary action agreed to at conference is binding & public |
• Yes, mandatory • Confidential • Disciplinary action agreed to at conference is binding & public |
Standard of proof |
Preponderance of evidence |
Preponderance of evidence |
Summary suspension allowed |
Yes |
Yes |
Cease & desist orders |
Board authorized to issue or obtain restraining order or injunction from court |
Can, through attorney general, ask for cease & desist or restraining order or injunction |
Reports & Records |
• All board final disciplinary actions & license denials should be public records, including findings of fact & conclusions of law • Voluntary surrender & license limitation should be public record |
• Entire investigatory record is public if probable cause found, unless physician agrees to participate in rehabilitation program • DPH must inform medical societies and health care facilities about disciplinary actions taken • Quarterly regulatory action reports list type of case and action taken • DPH required to report annually to governor & legislature on number of (1) petitions received and (2) hearings held, including brief description of alleged impairments and actions taken (but not to identify physician) |
DISCIPLINARY ACTION
FSMB Model |
Connecticut |
• License revocation or suspension • Probation • Practice restrictions, stipulations, and conditions • Censure, reprimand, and chastisement • Fine • Satisfactory completion of education, training, or treatment program • Monetary redress to another party • Required public or charity service, medical or nonmedical • Paying disciplinary costs |
• License revocation or suspension • Censure or reprimand • Probation, with terms and conditions that: (1) require licensee to report to DPH, (2) limit practice, continue or renew professional education • Civil penalty up to $ 10,000 per count |
Board should authorized to issue confidential letters of concern when evidence does not warrant formal proceeding, but Board sees indications of possible “errant” conduct that could lead to serious consequences or formal action |
No specific provision |
Board should be authorized to require professional competency, physical or mental health, or chemical dependency evaluations, including drawing and examining body fluids |
No specific provision |
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