Category: Uncategorized

Medical practice in Ohio, self prescribing, State Medical Board of Ohio, Uncategorized

Physicians’ Legal Obligation to Report to the State Medical Board of Ohio

Last week, the State Medical Board of Ohio issued a landmark decision in which the Medical Board permanently revoked the license of a physician for failing to report to the Medical Board allegations of sexual misconduct concerning the physician’s colleague.

Pursuant to ORC 4732.224(B), an individual licensed by the Medical Board who has reason to believe that a violation of any provision of the Medical Board’s statutes or rules has occurred shall report to the Medical Board. Although this law has been in effect for many years, this was the first time we are aware that the Medical Board has disciplined a licensee for failing to report a licensee under this law. It was also remarkable that the sanction imposed was a permanent revocation, which is the most serious sanction that can be imposed by the Medical Board.

An interesting factor of this case also rests in the subjective wording of the reporting statute, which provides that a licensee who “has reason to believe” that a violation of Medical Board law or rule has occurred shall report to the Medical Board. This subjective wording can make it difficult for a physician to know when they must report to the Medical Board allegations made against a colleague.  However, OAC 4731-15-01(D) provides guidance by indicating that “reason to believe” or “a belief” does not require absolute certainty or complete unquestioning acceptance, but only an opinion that a violation has occurred based upon firsthand knowledge or reliable information.

In this case, the Board’s attorneys argued that the physician’s failure to report to the Medical Board allegations of sexual misconduct concerning the physician’s medical partner with patients in the practice was a violation of the reporting statute. Despite the fact that the physician who allegedly engaged in misconduct was terminated from employment at the medical practice, the physician who failed to report to the Medical Board the alleged misconduct permanently lost his medical license.

Although there are certain exceptions to the reporting requirement in OAC 4731-15-01(B), those exceptions are limited and require a fact specific analysis in each individual case.

Under OAC 4731-15-01(E), a report required to be made must be made to the Medical Board within 48 hours. Under OAC 4731-15-01(G), each report must include (i) the name of the practitioner or other individual in violation, (ii) the violation which is believed to have occurred, and (iii) the date(s) of and place(s) of occurrence(s), if known.

This case is a cautionary tale to Ohio physicians. If you have reason to believe that another licensed professional is violating any of the provisions of the Ohio Medical Practice Act (ORC 4731 et seq and OAC 4731 et seq), you are required to report to the Medical Board.

As always, if you have any questions about this post or about the State Medical Board of Ohio in general, please feel free to call one of the attorneys at the Collis Law Group LLC at 614-486-3909 or email me at beth@collislaw.com

 

 

Medical practice in Ohio, Uncategorized

What is a Medicaid Exclusion and Is There a Way to Appeal These Decisions?

The Department of Health and Human Services has the authority to exclude certain individuals from participating in Medicare, Medicaid, and all Federal health care programs as defined by 1128B(f) of the Social Security Act.

Exclusion from participation can materially affect a professional’s scope of practice because exclusion prohibits the professional from submitting or causing claims to be submitted to any Federal health care program (such as Medicare, Medicaid, VA, TRICARE, the Military Direct Care System, etc.) for any items or services the professional provides and prevents the professional for working in any capacity for an organization that accepts Federal funding. (However, exclusion does not prevent the professional or their family members from receiving benefits to which they are entitled under a Federal program.)

There are two types of exclusion: Mandatory Exclusion is required for certain offenses (42 USC §1320a-7(a)) and Permissive Exclusion is discretionary and may be imposed for certain other offenses (42 USC §1320a-7(b)).

Generally, mandatory exclusion is required for a (i) conviction of health care program-related crimes, (ii) conviction related to patient abuse, (iii) felony conviction related to health care fraud, and (iv) felony conviction related to controlled substances.

Generally, permissive exclusion may be imposed for a number of different offenses including but not limited to (i) a misdemeanor conviction related to controlled substances, (ii) a health care license revocation or suspension, and (iii) excessive charges or unnecessary services.

In my practice, I have seen physicians and other licensed professionals (including nurses) receive a letter from the OIG proposing an exclusion from participation in Federal health care programs following a suspension of their professional license or after a misdemeanor or felony conviction or after being convicted of a drug crime.

In cases where exclusion is permissive, it is recommended to provide the OIG with a clear and detailed response as to why the exclusion should not be imposed.  Under certain circumstances, the OIG may choose not to impose exclusion.  In other instances, the OIG will impose exclusion for a specific time period, for example, during the time period that the professional’s license is suspended.

If you receive a notification from the OIG proposing an exclusion, experienced legal counsel can assist you to formulate and file a timely response.

As always, if you have any questions about this post, the State Medical Board of Ohio or the unintended consequences of a Medical Board disciplinary action, feel free to contact the attorneys at the Collis Law Group at 614-486-3909 or send me an email at beth@collislaw.com

Medical practice in Ohio, Uncategorized

Happy New Year! Don’t drink and Drive tonight

Happy New Year.

A quick public service announcement to all physicians licensed in Ohio. As you go out to celebrate the New Year tonight, do not drink and drive! It’s unsafe for you and others and may also have devastating consequences on your professional license.

If you are charged with an alcohol related offense, OVI, disorderly conduct, reckless operation (just to name a few), the Medical Board has the authority to take a disciplinary action against your professional license.

Yes. Keep in mind. The Medical Board is concerned about your behavior and conduct 24/7. Even if you are not scheduled to work tomorrow, or this weekend, if you are charged and convicted with an alcohol related offense, the Medical Board can take a disciplinary action against you.

Depending on the facts and circumstances, the Medical Board has the authority to order you to a 72 hour chemical dependency evaluation at a Board approved treatment center. Then, depending on the results of the assessment, you could be ordered to complete 28 days of RESIDENTIAL treatment. Your license would be suspended for an indefinite period of time (at least 30 days) and you would be required to enter into a five year monitoring agreement with the Medical Board once your license is reinstated.  If licensed in other states  you would need to disclose the Medical Board action.  This would be considered a public disciplinary action and would be noted on the Medical Board website indefinitely.

In the past, I have always encouraged physicians to appoint a designated driver if they plan to consume alcohol. But, too often, the “designated driver” leaves the party early or consumes alcohol themselves!  Before you go out tonight, schedule a taxi to pick you up or download the Uber app on your phone. I recently used the Uber app and caught a ride to the airport at 7am. I couldn’t believe the ease of using this app.

Even if you are just going to a low key party at a friend’s house “down the street”, don’t risk your professional livelihood. Order a driver, taxi or Uber BEFORE you leave the house tonight.

Have fun. Be safe and Happy New Year.

As always, if you have any questions about this post or about the State Medical Board of Ohio in general, please contact me at beth@collislaw.com or at my office at 614-486-3909.

 

Medical practice in Ohio, State Medical Board of Ohio, Uncategorized

Being Investigated by the Medical Board? When to hire an attorney

I am often asked by physicians when is the best time to hire an attorney if they are being investigated by the State Medical Board of Ohio. The short answer is, the sooner the better.

The Medical Board is a governmental body that is established to regulate the practice of medicine in Ohio. As a regulatory agency, the Medical Board is required to investigate all complaints that are received related to physicians.

The Medical Board will assign an investigator to collect initial information related to the complaint. The investigator may request to meet with the physician to ask questions about the complaint. The Medical Board has the authority to subpoena medical records, to send the physician Interrogatory questions (questions the physician must respond to under oath), and may order the physician to a Deposition at the Medical Board office.

Any and all information submitted to the Medical Board or to the Medical Board’s investigator may be used as evidence to sanction a physician. Occasionally, physicians will speak with investigators, respond to Interrogatory questions, and even attend a Deposition without legal counsel. Many physicians believe that if they have “nothing to hide” they see no reason to retain an attorney. This is often a mistake.

The value of hiring experience legal counsel BEFORE you provide any information to the Medical Board is to help guide the physician through the investigative process, to help the physician understand all questions that are asked, and to assist the physician to provide information only as to what is being asked (and not irrelevant information and/or emotional or argumentative commentary).

Even if the physician believes the investigation is meritless, they still have a duty to cooperate in the investigation. The Board is required to investigate all complaints and has the authority and ability to close meritless complaints. However, by failing to provide clear, accurate, and timely responses to the Medical Board, the physician can exacerbate and/or extend the investigation. By arguing with investigators or providing non-responsive or argumentative replies to the Medical Board, the physician runs the risk of the investigator continuing the investigation or including in their investigation information which could have a negative impact for the physician.

The Board has no time limit to complete an investigation and often investigations can drag out for years.

In addition, once the physician responds to questions from the Medical Board, it is nearly impossible to “change your story”. Therefore, prior to responding to a Medical Board investigation, the physician should know and understand the law as it relates to the questions they are being asked. If the physician is not in compliance with the law, they should have a plan in place as to HOW they will come into compliance. Therefore, the sooner the physician retains experienced legal counsel, the more assistance legal counsel can provide.

Generally speaking, if the physician chooses to meet with the Medical Board investigator, respond to Interrogatory questions, and/or attend a Deposition without legal counsel, there is far less that legal counsel can do to assist the physician if the Medical Board institutes a disciplinary action.

I have also been asked if retaining legal counsel makes the physician look “defensive”. In my experience, the Medical Board respects the assistance of experienced legal counsel and understands that the entire investigative process is smoother when the physician is represented and informed.

As always, if you have any questions about the State Medical Board of Ohio in general or this blog post, please contact me at Beth@collislaw.com, check our firm website at http://www.collislaw.com or call to speak with one of the attorneys at the Collis Law Group, LLC at 614-486-3909.

Uncategorized

Ohio Physicians…Emeritus registration is an honorable and practical status following your retirement from the practice of medicine in Ohio.

Many physicians struggle with retirement. Many physicians envision practicing medicine until the day they die because they view medicine not only as their job, but as their way of life, identity, and calling.

I am aware of physicians who have lived outside Ohio or have not practiced in Ohio for many years who nevertheless continue to maintain an active Ohio medical license. However, to maintain an active medical license in Ohio, a physician must keep up to date with costly continuing education hours and renewals, and other legal and administrative requirements, the failure of any of which to adhere to could subject the physician to costly and stressful investigation and/or discipline by the State Medical Board of Ohio (“Board”). Additionally, even if a physician voluntarily allows their Ohio medical license to expire or lapse, the Board retains the legal right to institute a disciplinary action against the physician’s Ohio medical license for violation of certain laws or rules.

There is a simple way to avoid these problems. Under Board administrative rule 4731-22, a physician licensed to practice medicine and surgery in Ohio for at least ten years who declares that he or she is retired from active practice may apply to the Board for emeritus registration. For purposes of emeritus registration, “retired” is a status that means an individual has no active license in another state, or agrees in the emeritus application that he or she will not apply for renewal or reinstatement of any license held in another state. The physician may apply for emeritus registration by indicating on his or her biennial registration form or in written correspondence to the Board if he or she is in fact retired from active practice of medicine and surgery. To be eligible for emeritus status, the physician must also not have been the subject of disciplinary action in Ohio resulting in the revocation, suspension, probation, reprimand, or any other limitation of the physician’s license to practice.

Emeritus registration is not a license to engage in the practice of medicine and surgery and emeritus registrants may not engage in, or hold themselves out to others as actively engaged in, the practice of medicine and surgery. However, emeritus registrants may refer to themselves as doctor, if previously licensed to practice medicine and surgery.

Additionally, emeritus registrants are not required to comply with the Board’s continuing education requirements and also are exempt from renewal and renewal fees.

An emeritus registrant may apply to change back to active practice under conditions specified in the Board’s rules.

Emeritus registration is also available for practitioners licensed to practice osteopathic medicine and surgery, podiatric medicine and surgery, massage therapy, or cosmetic therapy in Ohio.

Be proactive. If you are ready to retire from the active practice of medicine and surgery in Ohio, consider applying for emeritus registration. Emeritus registration offers an honorable and practical status for a physician retiring from the active practice of medicine and surgery.

As always, if you have any questions about this post or the State Medical Board of Ohio in general, please feel free to contact me at Beth@collislaw.com or 614-486-3909 or check out our firm website at www.collislaw.com.

Uncategorized

Physicians should never examine a patient without a chaperone present

When examining a patient, a physician should always have a chaperone present in the room.  The policy of the Medical Board has been to require a chaperone in the room when examining a patient of the opposite gender and when examining a patient in intimate areas of their body (such as a breast or vaginal examination).

However, after representing physicians before the Medical Board for nearly twenty years, I recommend that physicians have a chaperone present in the room during any patient examination. The chaperone is there to witness the examination. The chaperone represents the physician.

Often, I have had physicians tell me that they do not have a chaperone in the room because the patient brought a parent, spouse, friend or child with them to the examination. This is a mistake. If the patient alleges inappropriate conduct on the part of the physician, the friend or family member will not defend the physician and will support the statements of the patient.

Often, physicians tell me that they do not have the staff support to have a chaperone with them at all times when examining patients. My advice to them is that they cannot afford to NOT have a chaperone present.

If a complaint is made to the Medical Board by a patient that a physician touched them in an inappropriate manner during a medical examination, the Medical Board will open an investigation. The investigation can span many months or even many years (there is no statute of limitations for a Medical Board investigation).  Without a chaperone present to testify on behalf of the physician, it is a simply a case of “he said – she said”, which is difficult for a physician to defend.

Patients have also been known to file police reports and to press criminal charges against physicians for conduct that took place during an examination, as well as filing civil law suits against physicians.

Physical examinations can be intimidating, embarrassing and occasionally uncomfortable for patients. It is always best to continue to explain to the patient what is taking place during the examination to alleviate their fears and concerns. However, it is also imperative that the physician have a chaperone present in the room to observe the conduct of the physician AND the patient.

The name of the chaperone should also be noted in the patient’s file as evidence that they were present during the examination. It is also recommended when conducting examinations of patients in a hospital setting to have a floor nurse present in the room during the examination.

As always, if you have any questions about this post or the State Medical Board of Ohio in general, please contact one of the attorneys at the Collis Law Group, LLC (formerly Collis, Smiles & Collis, LLC) at 614-486-3909 or contact me at beth@collislaw.com.

State Medical Board of Ohio, Uncategorized

Sanctions Against Physicians on Probation Increase in Severity

In 2012, I wrote a blog post about how the State Medical Board of Ohio was cracking down on physicians who were on probation. See “On Probation with the Medical Board? Beware, There is a New Sheriff in Town.” When writing that post two years ago, I could not have anticipated the changes that would take place and how these changes are affecting physicians who are under probation.

At any one time, the Ohio Medical Board monitors over three hundred physicians who are subjected to probationary terms. Many are on probation for substance abuse or alcohol abuse problems.  These individuals are required to call into a lab testing site daily and to submit to random OBSERVED urine screen anywhere from 2-4 times per month. They are also required to notify their doctors of their addiction, notify the Board of all medications they have been prescribed, and in many cases they are required to keep a log of all controlled substances they prescribe. They are required to attend AA or NA support meetings and personally report to the Board on a quarterly basis. All of these requirements are on top of their daily work assignments and while juggling family commitments.

In the past, minor violations of these requirements were accepted by the Board. You might miss a call in for a drug screen or one AA meeting. However, these seemingly minor violations are now the basis for additional discipline by the Board against the physician.

I recently learned that a physician’s probation was extended for 30 days for failing to call into the testing site on ONE occasion (and they were not even selected to provide a sample on that day). In the past year, I have also handled three cases where the Board has proposed to discipline a physicians for technical violations of their Consent Agreements, a few missed calls or a few missed AA meetings (even in cases where there is no evidence of a positive drug screen).

So, beware. Minor violations will not be taken lightly. Regroup. Set your priorities in place and be 100% compliant with the terms of your Consent Agreement, or you could face further Board discipline.

As always, if you have any questions about this post or the State Medical Board of Ohio in general, please feel free to call my office at (614) 486-3909 and ask to speak with one of the attorneys or email me at beth@collislaw.com.

 

State Medical Board of Ohio, Uncategorized

Physicians .. have you read the rules?

The practice of medicine in Ohio is outlined by one statute section, Ohio Revised Code 4731, and one set of rules drafted by the Medical Board, Ohio Administrative Code 4731. This Code section and these rule outline the requirements to be licensed as a physician, podiatrist, massage therapist or physician’s assistant in Ohio and also define the scope of practice of medicine in Ohio. However, I am always surprised that most physicians with whom I speak have no idea that these laws and rules even exist.

Ohio Revised Code Chapter 4731 is the law governing the practice of medicine in Ohio. The Ohio Administrative Code is drafted by the Medical Board members and is reviewed and approved through a rule making process. Physicians in Ohio are required to know, understand and follow the guidelines established in these laws and rules.

These laws and rules can be found at the Medical Board’s website at: http://www.med.state.oh.us. You can also follow the following link to find these sections: http://codes.ohio.gov/orc/4731
or for the administrative rules go to: http://codes.ohio.gov/oac/4731

Pertinent sections of these laws and rules include:

Basis for disciplinary action can be found at R.C. 4731.22(B) which can be found at: http://codes.ohio.gov/orc/4731.22.

To learn more about licensing and continuing education go to: OAC 4731-10, which can be found at: http://codes.ohio.gov/oac/4731-10.

To learn more about prescribing of controlled substances go to: OAC 4731-11, which can be found at: http://codes.ohio.gov/oac/4731-11.

To learn more about the Medical Board’s hearing process go to: OAC 4731-13, which can be found at: http://codes.ohio.gov/oac/4731-13.

To learn more about the duty to report to the Medical Board go to: OAC 4731-15, which can be found at: http://codes.ohio.gov/oac/4731-15.

To learn more about what to do if you believe you suffer from  chemical dependency go to: OAC 4731-17, which can be found at:  http://codes.ohio.gov/oac/4731-17.

As practicing medical professionals in Ohio, you are required to know, understand and follow the laws  and rules in ORC 4731 and OAC 4731. Take the time to read the rules and, if you have questions, contact experienced legal counsel to assist you.

As always, if you have any questions about this post, please feel free to contact me at beth@collislaw.com.

State Medical Board of Ohio, Uncategorized

Physicians .. do you need a vacation?

I have written about work/life balance in the past (see “Do You Have Balance in your Life,” April 18, 2012) however, as the holiday season approaches, I think it is important to consider whether this is a good time to suggest taking a break from the hectic pace of your practice. In the news again today, there was a story about how Americans are given less vacation days per year than any other major industrial nation (10 days vs. 30 days for most Europeans) and that Americans rarely use all their vacation days. http://today.msnbc.msn.com/id/3041440/vp/50068545#50068545

Many people think that they are too busy to take a vacation or that if they leave for even a few days they will return to even more work than when they left. In some cases, Americans are afraid that if they do take a few days off their bosses will recognize that they are dispensable and may re-assign their work and their job to others. Despite whatever real or imaginary fears you might have about taking a break from work, the reality is that everyone needs to rest, relax and step back from the stress of their daily lives so that they have the energy to return to the workplace prepared to work. Physicians are no exception. Physicians deal with extremely stressful situations on a daily basis. Failure to take the appropriate breaks from your practice can lead to weight gain, depression, additional stress and poor decision-making.

As noted in previous posts, stress can lead physicians to make poor decisions related to patient care or can lead to them making poor personal decisions such as drinking and driving, committing a boundary violation with a patient, or seeking unacceptable ways to relieve stress such as sharing personal information with patients or “friending” patients on social media sites.  Ultimately, failure to implement appropriate stress management tools, including taking a vacation, can lead to future professional problems.

Whether you choose to stay home for a “staycation” or take that long-awaited trip, give yourself (and your practice) a break. It will do you a world of good.

As always, if you have any questions about the State Medical Board of Ohio or this post, please feel free to call me at (614) 486-3909 or email me at beth@collislaw.com.  My office will be closed from December 24, 2012 to January 3, 2013 to give everyone at CSC a much needed break.

State Medical Board of Ohio, Uncategorized

The Digital Age Brings Down Another Prominent Figure

In the past, I have written about the dangers that participating in social media can present to medical professionals (August 23, 2012 post “Social Media Can be a Dangerous Pastime for Medical Professionals”).  The resignation of General David Petraeus yet again demonstrates that the digital age presents significant perils to those individuals who ignore or attempt to circumvent the appropriate use of such media.

I found it interesting that it has been reported that General Petraeus and Paula Broadwell allegedly wrote emails in “draft”, left the drafts in a draft email folder which they could both access and read, but did not send to each other, thereby attempting to avoid creating a trail of emails.

Engaging in social media creates a trail that can be used by employers, governmental agencies, criminal investigators, and State licensing boards as evidence of wrongdoing.  When a professional, like a physician, engages in email, texting, Facebook, Twitter, or other forms of social media with patients, they risk being determined to have committed a boundary violation with a patient.  A physician may not engage in a personal, sexual, or financial relationship with a patient.

In the past, these relationships were more difficult for employers or governmental agencies to prove because, in many instances, cases came down to a “he said – she said” situation.  However, in the digital age, impermissible relationships are documented in emails, texts, photos, videos, Facebook posts, and Tweets.

It is a violation of the State Medical Board of Ohio’s laws and rules to engage in a personal, sexual, intimate, or financial relationship with a patient.  Such relationships subject a physician to discipline by the Board.

As always, if you have any questions about this post or the State Medical Board of Ohio in general, please feel free to email me at beth@collislaw.com or call me at 614-486-3909.