RECOMMENDATIONS

Organize. Form citizens' action or victims' rights groups to improve medical quality assurance in your area. The American Association of Retired Persons publishes a guide that can help you mobilize a group for reform.⁽³⁷⁾ Try to get a representative of your group appointed to the state medical board or the Medicare Peer Review Organization for your state.

Write to your Congresspersons, at both state and federal levels urging actions as listed below.

Recommendations for the Federal Government

Create grants and standards. Congress should create a small program of grants-in-aid to state medical boards. The grants should be tied to the boards' agreements to meet certain performance standards, which should be developed by the Public Health Service, as the Department of Health and Human Services Office of Inspector General recommended in 1990.⁽³⁸⁾

In developing these standards, the Public Health Service should work with the Federation of State Medical Boards' Assessment Task Force. In September 1990 the FSMB received a federal contract for $200,000 to undertake the development of a self-assessment instrument for state medical boards. The goal of the task force was to produce a sound and objective means by which boards could assess their performance over time and in comparison with other boards.⁽³⁹⁾ In April 1992 the Federation released its "Self-Assessment Instrument for State Medical Boards" and the accompanying handbook. The Instrument is a survey that each board can fill out regarding its own activities, enabling boards to eventually share information with each other and compare resources and performance. The standards should include (but not be limited to) the following: processing complaints within a certain limited period of time; maintaining a certain level of staffing and having staff meet certain qualifications; disseminating disciplinary information to the public; having at least 30% of board members be consumer members; regularly publishing a newsletter that includes names of disciplined physicians and descriptions of the disciplinary actions taken against them; issuing an annual report that includes meaningful disciplinary statistics; and other standards.

The Medicare Peer Review Organizations (PRO), which have been practically moribund in disciplining physicians for substandard care, should become more aggressive. The PROs should hire investigators and advisers trained in law enforcement so that fewer of their sanctions will be overturned.

As a 1990 Institute of Medicine report noted, the PROs are not evaluated on their ability to detect and correct poor quality care.⁽⁴⁰⁾ The Department of Health and Human Services should change its evaluation procedures to place more emphasis on quality.

Open the National Practitioner Data Bank (NPDB). In 1986 Congress passed the Health Care Quality Improvement Act. This act mandated the establishment of a data bank containing information on adverse professional review actions taken against doctors, and on doctors who had been sued for malpractice and on whose behalf settlement or adjudicated payments had been made. Unfortunately, the law establishing the data bank also required that it be closed to the general public. Congress should pass legislation opening the data bank to consumers and loudly rebuke the American Medical Association's resolution to destroy the data bank. Although there have been Congressional hearings in 2000 on the topic of opening up the NPDB, as this report goes to press, there is no significant likelihood that such legislation is likely to become law.

The Drug Enforcement Administration should release a monthly list of all practitioners whose controlled substance prescription licenses have been revoked, surrendered, restricted, or denied. The list should be widely distributed to pharmacies, state pharmacy and medical boards, and the general public. Far too many doctors continue to prescribe controlled substances after their DEA licenses have expired or have been revoked. The DEA should consider requiring pharmacies to subscribe to an on-line service with which they could check the validity of these DEA license numbers.

Require doctor recertification. Congress should consider legislation proposed by Rep. Pete Stark, D-California, to require physicians who accept Medicare patients to be periodically recertified for competency.

Recommendations for States

Strengthen the statutes. States that have not already done so should adopt legislation at least as strong as that in the Model Medical Practice Act developed by the Federation of State Medical Boards,⁽⁴¹⁾ or, preferably, stronger laws.

Restructure the boards. States should sever any remaining formal, debilitating links between state licensing boards and state medical societies. Members of medical boards (and separate disciplinary boards, where present) should be appointed by the governor, and the governor's choice of appointees should not be limited to a medical society's nominees. At least 50% of the members of each state medical board and disciplinary board should be well-informed and well-trained public members who have no ties to health care providers and who, preferably, have a history of advocacy on behalf of patients. The governor should appoint members to the Medical Board whose top priority is protecting the public's health, not providing assistance to physicians who are trying to evade disciplinary actions.

Inform the public. Each state's Open Records Law and its Medical Practice Act should state that all formal disciplinary actions against licensed professionals are fully public records. Each legislature should require widespread dissemination of final disciplinary orders. Lists of those disciplined and full disciplinary orders should be promptly available by mail to all requesting them.

Notices of disciplinary actions should be sent to the local news media and to all hospitals, health maintenance organizations (HMOs), and other health care providers in the state, as well as to other state agencies, the federal Department of Health and Human Services, and the federal Drug Enforcement Administration. Federal law already requires that such information be reported to the National Practitioner Data Bank, which began operating on September 1, 1990.

As has already begun to happen in many states, all states should make disciplinary actions they take against physicians promptly available on their web sites and it should include all details such as the full text of the board order against the physician.

Strengthen board authority. Every medical board should have the authority to impose emergency suspensions pending formal hearing in cases where a doctor poses a potential danger to the public health. Boards should aggressively use this authority when they learn of a potentially dangerous doctor. The legal standard for disciplining physicians should be a preponderance of the evidence, not more difficult to accomplish standards.

Medical boards should have the authority to rapidly, after confirmation, accept the findings of other state boards and of the federal Department of Health and Human Services and the Drug Enforcement Administration. If a physician has been disciplined by another state, any subsequent state's medical board should be required to impose sanctions at least as stringent as those imposed by the first state. Each state should require physicians who have been licensed in other states and who seek licensure in a new state to submit affidavits that they are not under investigation elsewhere before being granted a new license. Physicians who are under investigation should not be permitted to practice until the board has heard the details of their case and can evaluate their competency. Each legislature should grant its state medical licensing board the authority to examine physicians for physical, mental and professional competence and to test them for alcohol and drug use upon reason to believe that a problem exists in one of these areas.

Encourage complaints. Each legislature should provide for the protection of confidentiality and immunity to those who report violations of the Medical Practice Act to a board. Such protections should also be extended to board members, their staff, and consultants.

Each legislature should require all licensed health care practitioners to report Medical Practice Act violations by other practitioners to the medical board, with large civil penalties for failure to do so. Boards should aggressively use their authority to enforce the requirement that all health care providers report such violations. Each legislature should also require hospitals to report all revocations, restrictions, or voluntary surrenders of privileges.

Courts should be required to report all indictments and convictions of physicians to the medical disciplinary board. In addition, each legislature should require liability insurers to report all claims, payments, and policy cancellations to state medical disciplinary boards. It should request reports from other state agencies, Medicare, the DEA and other federal agencies. It should also require impaired physicians' programs to report the names of doctors who fail to successfully complete their programs. Medical boards should conduct random audits of institutions to check compliance with these reporting requirements, and should fine those who fail to comply. After a doctor is disciplined, a board should fine any other practitioners who knew of that doctor's offense, but failed to report it.

Keep the courts in check. Each legislature should pass laws that make clear their intent that the judgements of the medical board be given extreme deference, and that, barring extraordinary circumstances, disciplinary actions should take immediate effect pending appeal.

Each legislature should adopt the 'preponderance of the evidence' standard of proof in medical disciplinary cases, replacing the tougher-to-meet 'clear and convincing evidence' standard now in effect in most states. According to the August 1990 report on state medical boards issued by the Office of the Inspector General, "The 'clear and convincing evidence' standard of proof is more rigorous than the 'preponderance of evidence' standard that is typically required to justify tort damages for negligence in civil cases. The more rigorous standard provides greater protection for physicians, but adds complexity to the investigative process and appears to make it less likely that a board will persevere on a case through a full evidentiary hearing."⁽⁴²⁾

Furthermore, the Project Work Panel of the Federation of State Medical Boards, in its August 1989 report "Elements of a Modern State Medical Board: A Proposal," recommended that each state medical board "use preponderance of evidence as the standard of proof" and that they each have the power "to issue final decisions when acting as trier of fact in the performance of [their] adjudicatory duties."⁽⁴³⁾

Beef up funding and staffing. Each legislature should permit the medical board to spend all the revenue from medical licensing fees, rather than being forced to give part to the state Treasury. The medical boards should raise their fees to $500 a year. All boards could benefit from hiring new investigators and legal staff. Boards should employ adequate staff to process and investigate all complaints within 30 days, to review all malpractice claims filed with the board, to monitor and regularly visit doctors who have been disciplined to ensure their compliance with the sanctions imposed, and to ensure compliance with reporting requirements. They should hire investigators to seek out errant doctors, through review of pharmacy records, consultation with medical examiners, and targeted office audits of those doctors practicing alone and suspected of poor care.

Require risk prevention. States should adopt a law, similar to one in Massachusetts, that requires all hospitals and other health care providers to have a meaningful, functioning risk prevention program designed to prevent injury to patients. Massachusetts also requires all adverse incidents occurring in hospitals or in doctors' offices to be reported to the medical board.

Require periodic recertification of doctors based on a written exam and audit of their patients' medical care records.