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Medical Board Disciplinary Actions May Argue Against National Telehealth License

4 Mins read

The primary responsibility and obligation of state medical boards is to protect consumers by ensuring that all licensed physicians comply with the “community standard of care.”  Could they still do that with a federal license to do telehealth across state borders?

The Federation of State Medical Boards (FSMB) has just released its 82 page, 2014U.S. Medical Regulatory Trends and Action report.  Even though some medical boards get defensive when the FSMB publishes stuff like this, I find it enlightening because it contains a lot of facts and figures about medical boards, like the laws regulating medicine in each state and the kind of information boards include in their online physician profiles.

The report provides aggregated national data about medical licensing and disciplinary trends.  For example, during 2012, the 70 state medical boards reported a total of 9,219 actions taken against physicians.  (The reason there are 70 boards and not 50 is that some states and U.S. territories do not combine MD and DO boards.)  Of the total actions, boards restricted the licenses of nearly 1500 physicians (1,480) and reprimanded another 1,224. The licenses of 907 physicians were suspended and 299 were revoked.

The number of disciplinary actions were for just a very small fraction (1%) of the 878,194 licensed physicians in the United States.  Most serious complaints against physicians allege unprofessional conduct and/or a failure to provide what is known as the community standard of care.  Physicians practicing in a specific community establish that community’s standard of care, so there is likely to be differences of opinion between doctors in different communities.  Medical boards address this variance by utilizing physicians in the same specialty and same community as physicians named in quality of care complaints to review the cases.  Some might call this a “good ol’ boys’” network, but that attitude presumes that a physician reviewer has no integrity and is dishonest and unethical.  Furthermore, medical boards would not assign cases to a physician reviewer who demonstrated bias for or against another doctor.

Disciplinary actions against physicians logically take place after the fact – after a complaint is filed by a personal injury attorney on behalf of the patient, the patient themselves, a patient’s family, a hospital, or another provider – and validated by a medical board.  Often, patients confuse medical board investigations with malpractice lawsuits.  Medical boards do not have the authority to order a doctor to pay an award to a complainant.  That’s a decision made in a regular courtroom.  But, boards can review malpractice awards, judgments and settlements to determine if a physician fell below the standard of care.

Years ago, when a state revoked a doctor’s license, he merely went to another state and opened a practice.  He could go undetected as long as no one reported him.  Thanks to the National Practitioner Data Bank (NPDB), that doesn’t happen anymore (or shouldn’t).  When a medical board disciplines a physician, the action is reported to the NPDB and distributed to the other states where the physician holds a license.  Usually, the other medical boards mirror the disciplinary action taken by the first state.  So if the initial action prohibits the physician from seeing women patients, has his license suspended for substance abuse, or has his license revoked, the other states follow suit.  Should the revoked physician apply for a license somewhere else, a medical board would query the NPDB for his disciplinary history before granting or denying a license.  That’s the accepted practice.

For the most part, the system works.  Complaints help licensing agencies weed out the bad apples.  The question is how might the system change if Congress moves forward with a proposal to establish a national telehealth or telemedicine medical license?  As explained above, the case against a physician largely depends on the community standard of care.  Would the “telehealth physicians” constitute a community, or would a physician in the same community and state as the telehealth physician have to review the case?  Who or what agency would assign the complaint? And to whom or what?

The one government program that permits telemedicine across state borders is the VA.  In order to practice within the VA Healthcare System, a physician must have an active license in at least one state.  A doctor can see patients anywhere within the VA via telemedicine.  In order to practice medicine away from a federal installation, however, the physician must abide by state regulations.  For example, let’s say a doctor has an active license to practice medicine in Oregon.  Working for the VA, he can live and work wherever there is a federal healthcare center and see patients remotely in other states.  So if he moved to Texas, the physician would not need a Texas medical license as long as he only saw patients at or on federal installations.

The VA does have its own investigatory and disciplinary process when a physician is accused of unprofessional conduct.  And, a 45-page booklet, “Reporting and Responding to State Licensing Boards,” details how that process is supposed to work in conjunction with state authorities.  What must be reported includes: significant deficiencies in clinical practice, like lack of diagnostic or treatment capability, multiple errors in transcribing, administering and documenting medications; patient neglect or abandonment; a physician’s physical or mental health that is a sufficient impairment affecting patient safety; substance abuse; unethical behavior; and patient abuse.

When the VA initiates a report to a state licensing board, it is only a “notice to an SLB that there is a question of a professional’s clinical practice or behavior.”  Then, it’s up to the state licensing agency to follow-up, to determine if the “question” would be unprofessional conduct as defined in its state’s statutes.  There does appear to be a formal VA procedure to follow so the physician’s state licensing agency is alerted to problems. However, the VA’s Office of Inspector General mentions in its interim report on the VA’s Phoenix Health Care System that audit controls in the VistA electronic health records system were not functioning prior to the state of the OIG investigation. Investigators say they found “inappropriate scheduling practices.”   But the absence of an audit trail for appointment scheduling limited the ability for investigators “to determine whether any malicious manipulation of the VistA data occurred.”  This involves the reports that Phoenix-area veterans and perhaps those in other locations were victims of unacceptable “wait-times” due to off-the-books waiting lists and died before they were able to see providers.

The waiting list controversy is only one aspect of the way things have been run at the VA for the past 15 years.  Until lately, the VA had a reputation for delivering superior care to our valued veterans.  Now, how can we be sure that VA administrators have followed procedures in other areas?  Have they been reporting physicians when there were “questions” about professional conduct, patient care and abuse?  If you can cover up scheduling problems and off-the-books waiting lists, how difficult would it be to overlook problem physicians or simply transfer them to another facility? Just asking.

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