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Kent G. Harbison

Kent G. Harbison Health Law

kharbison@fredlaw.com
612.492.7119
Printable Version

New Law Avoids Unnecessary Punishment of Impaired Physicians

By: KENT G. HARBISON

September 1994 (As seen in Minnesota Medicine)

Of the approximately 1,200 complaints filed against physicians each year with the Minnesota Board of Medical Practice, about 9 percent involve claims of alcoholism, chemical dependency, mental illness, and other types of "impairments" affecting physicians' practices. The board recognizes that these impairments may pose a potential threat to the safety and welfare of patients and may violate the Minnesota Medical Practices Act, thus justifying disciplinary sanctions against impaired physicians if the impairments affect their ability to practice medicine with reasonable skill and safety. The board also recognizes, however, that impaired physicians suffer from disability or illness, distinguishing their violations from those that arise out of intentional misconduct or carelessness.

In the past, the board has had some difficulty deciding how best to protect the public from an impaired physician without also unnecessarily punishing or disciplining the physician because of a disability. The 1994 Minnesota Legislature, with the urging and support of the Board of Medical Practice (BMP) and other health licensing boards, enacted an amendment to Minnesota law that is aimed at resolving this dilemma. The new law establishes a diversion program allowing the participating licensing boards to provide treatment and to monitor impaired health care professionals without also imposing a public disciplinary sanction. The new law, entitled the "Health Professionals Services Program," is an amendment to Chapter 214 of the Minnesota Statutes. The new law is already in effect, although rules implementing and clarifying it are required to be promulgated by July 1, 1996. The Health Professionals Services Program law applies to health care professionals licensed by the participating boards-so far the boards of medicine, nursing, dentistry, pharmacy, and podiatry.

Before the law's enactment, most physicians who were investigated by the BMP concerning "impairment violations" faced disciplinary orders that imposed extensive and strict conditions on their licenses. Even though these disciplinary orders under the pre-1994 law were not reported by the board to the news media, they were included in the board's public records, which were open to inspection by anyone who cared to review them. The new law replaces the sting of a disciplinary order with a diversion program designed to help physicians overcome impairments without being disciplined and without facing public disclosure.

A Combined Effort

The Health Professionals Services Program is a joint effort by the five participating health regulatory boards listed above (including the BMP). According to the Legislature, the purpose of the new program is to protect the public from physicians and other licensed health care professionals "who are unable to practice with reasonable skill and safety by reason of illness, use of alcohol, drugs, chemicals, or any other materials, or as a result of any mental, physical, or psychological condition." This language is similar to that contained in one section of the Medical Practices Act authorizing the Board of Medical Practice to impose discipline on a physician for these types of impairments. Although the board still retains the authority to discipline a physician for violating the Medical Practices Act, including any of the impairments covered by the new Health Professionals Services Program, there is an assumption that the board will "divert" many impaired physicians to the new program as an alternative to taking disciplinary action. Physicians should understand, however, that the board still, has the power to discipline an impaired physician and also direct that physician to participate in the new program. 

The Health Professionals Services Program basically is a mechanism by which physicians and other health care professionals can receive counseling, treatment, and monitoring of their progress with respect to certain types of illnesses or impairments. The new program will be managed by two different committees, although one of them is only temporary. The program committee, the main committee responsible for the continuing management of the program, is composed of one person appointed by each of the participating boards. 

During the first three years of the program, the program committee will obtain input from an advisory committee composed of representatives from the private health professional associations, including the Minnesota Medical Association, and to public members. The advisory committee, unlike the program committee, does not have any right to vote on program management decisions, but it will provide consulting services and advice to the program committee regarding the management and development of the Health Professionals Services Program and its relationships with the various licensing and regulatory boards. The advisory committee is slated to terminate on June 30, 1997. The MMA and other health associations presumably could offer advice and comment to the program unofficially after that date.

Treatment and Monitoring

Participation in the services program is, to a great extent, voluntary. A physician who is impaired under the definition contained in the new statute may simply apply to obtain treatment in the new program, without contacting the Board of Medical Practice. Also, of course, the board may require an impaired physician to participate in the program as a condition for avoiding disciplinary sanctions or retaining his or her license to practice medicine. (The same scenario would apply with respect to any other health care professionals whose regulatory boards are participating in the program.)

Once physicians are admitted to the program, they are expected to sign a participation agreement tailored to their individual needs. The agreement sets out a plan for evaluation, treatment, and continuing care. It could include monitoring the physician's medical practice, randomly screening for drug use, requiring participation in support groups, restricting the physician's practice, requiring periodic status reports, etc.

Physicians are required to pay their own costs for participating in the program. The new law, however, states that each physician's (or other regulated person's) financial resources must be taken into account in developing the individual agreement and program plan. 

The new law excludes six categories of health care professionals from participating in the program. Excluded are those who:

  1. have diverted controlled substances for other than self-administration, i.e., persons who have improperly supplied controlled drugs to other persons;

  2. have previously been terminated from the program or any other state professional services program because of noncompliance with the program requirements;

  3. are currently under a disciplinary order or corrective action agreement from one of the regulatory boards, unless that board refers the health care professional to the program;

  4. are regulated under other Minnesota laws pertaining to persons who have tested positive for HIV/HBV, unless that person is referred to the program by one of the regulatory boards or the Minnesota commissioner of health;

  5. have been accused of sexual misconduct (suggesting that the mere allegation, rather than a fining of liability or guilt, is enough to exclude someone from the program); and

  6. "would create a serious risk of harm to the public" if they continued to practice. (The statute does not define what constitutes serious risk of harm to the public, but perhaps the forthcoming program rules will address this issue.)

A physician who participates in the program can leave it in one of three ways. First, participation ends when the physician successfully completes the program. Second, a physician may voluntarily terminate his or her participation in the program at any time for any reason or for no reason. Under these circumstances, however, the terminating physician is required to report his or her illness or impairment to the Board of Medical Practice, which would likely investigate the matter to determine whether the physician should be ordered to return to the program. Third, the program manager may expel a physician for any reason, for example, if the physician is not complying with the program requirements or if necessary medical records or other information deemed critical to successful completion of the program are not obtainable. The manager's decision to discharge a physician from the program must be reported to the BMP, which still has the authority to require the physician to return to the program as a condition for retaining his or her license. 

A Non-Disciplinary Option

The program manager must report to the Board of Medical Practice any physician who applies to participate in the program but does not meet the admission criteria. These criteria apparently are those described in the six statutory categories of persons not eligible to participate in the program, and they may in the future be clarified by formal rules. The new law also requires program managers to report to the board any physician "who is alleged to have committed violations" of the Medical Practices Act that are beyond the scope of the Health Professionals Services Program. This suggests that if a physician is admitted to the program because of any mental, physical, or psychological impairment, and the program manager subsequently learns that the same physician also is alleged to have had inappropriate sexual contact with patients, violated normal prescribing practice standards, or committed other violations of the Medical Practices Act, the program manager is compelled to report these other allegations to the Board of Medical Practice.

Although the board still has the authority to impose discipline against a physician whose impairment is deemed to violate the Medical Practices Act, it is more likely that the board will use the Health Professionals Services Program instead of disciplinary sanctions as a method for dealing with impaired physicians.

Some impaired physicians, however, may not totally escape public discipline. The board may still discipline an impaired physician if there is evidence of a different and unrelated violation of the Medical Practices Act, such as fraudulent billing practices. Furthermore, even if there is no other type of misconduct alleged, the board may choose not to divert a physician to the new program in certain circumstances. 

New Reporting Requirement

Physicians have often been concerned in a broader sense about the legal requirements to report themselves or their colleagues to the BMP because of possible or alleged violations of the Medical Practices Act. In fact, physicians with "personal knowledge" of such violations run the risk of being disciplined themselves for not reporting the information to the board. (There is a limited exception to this reporting requirement for physicians who gain the personal knowledge of a violation through the physician-patient relationship when the patient is the reportable physician.) The new law does not change these reporting requirements, significantly. It does, however, set up a two-pronged reporting procedure.

First, any person who has personal knowledge that a physician is unable to practice "with reasonable skill and safety" because of one of the illnesses or conditions described in the new law has the option to file a report either with the Health Professionals Services Program or with the Board of Medical Practice. The 1994 law also provides that any report made under this section of the law satisfies the reporting requirements contained in other laws regulating the reporting person's profession.

A question might arise out of the relationship between the reporting requirement under the 1994 law and the reporting requirements contained in other laws regulating health care professionals, such as the Minnesota Medical Practices Act. The 1994 law suggests that a physician may file a report concerning another physician's impairment with either the board or the new program. Does this mean that a physician with personal knowledge of another physician's impairment is free not to file a report with either the program or the medical board? The answer is probably no. The Board of Medical Practice is likely to take the position that the only discretion a physician has in deciding whether to report another physician is to decide whether the report should go to the Board of Medical Practice or to the new program. Failure to report such information will probably be considered a violation of the Medical Practices Act and, therefore, a potential basis for disciplinary action against the non-reporting physician.

The second reporting requirement under the new law is much clearer. It specifically states that a physician suffering from an illness or condition that precludes the practice of medicine with reasonable skill and safety must report himself or herself either to the board or the new program. Since the Medical Practices Act also compels self-reporting regarding any violation of the act, a failure to self-report probably would be considered grounds for disciplinary action.

Immunity From Liability

Many physicians feel uneasy about reporting a colleague to a regulatory agency or governmental program.  Failure to make such reports, however, puts the non-reporting physician at risk of a disciplinary proceeding. On the other hand, physicians who do file reports sometimes are concerned about being sued or subjected to other legal proceedings commenced by the person reported. This concern should be greatly alleviated under both the Medical Practices Act and the new Health Professionals Services Program law. As in the past, all reports are required to be kept confidential and privileged. And perhaps more important, the 1994 law establishing the diversion program provides that any individual or entity who submits a report "in good faith" to the program or otherwise cooperates with an investigation of such a report is immune from civil liability or criminal prosecution. The Medical Practices Act provides similar immunity protection for persons or entities filing reports to the board for any alleged violation of the Medical Practices Act.

Under both the 1994 law and the Medical Practices Act, all members of the Board of Medical Practice and other licensing boards (and their consultants and advisory bodies) are also immune from civil liability or criminal prosecution for "any actions, transactions, or reports in the execution of, or relating to, their duties" under the law.

No Public Disclosure

The BMP, unlike other health licensing boards, is required by law to disclose affirmatively its disciplinary decisions to the news media. Even the Medical Practices Act, however, makes an exception for disciplinary decisions regarding a physician who is suffering from an illness or impairment affecting his or her ability to practice medicine. Disciplinary decisions based on this factor become part of the board's public record, but they are not distributed to the news media or other entities. 

Under the new Health Professionals Services Program, physicians should not have any concern about public disclosure of their participation in the program. The 1994 law provides that all information collected by the program concerning any physician, including the agreements between the physician and program, are not public records. In fact, the information and participating agreements are not even permitted to be disclosed to the licensing boards, unless the program reports a regulated person to the appropriate board because of that person's ineligibility or termination from the program. 

The Board of Medical Practice has been designated as the licensing board providing the primary administrative management services for the new program. Ideally, the Health Professionals Services Program will enable the board to deal with impaired physicians more easily and appropriately outside the traditional disciplinary process. And the board hopes the new diversion program will reduce the substantial backlog of complaints it processes annually. By recognizing that physicians suffering from physical, mental, or other impairments should not ordinarily be disciplined because of their disabilities, the board may now be able to remove substantial category of complaints from its disciplinary system. Meanwhile, the impaired physicians will be in a better position to receive prompt diagnosis and treatment that might enable them to continue practicing medicine safely with the threat of public stigma.