The Iowa Board of Medicine met in public session in Des Moines on Friday, January 11, 2013. Board members in attendance included physician members Colleen Stockdale, MD, West Burlington, Chair; Greg Hoversten, DO, Sioux City; Julie Perkins, MD, Carroll; Jeff Snyder, DO, Crescent; Hamed Tewfik, MD, Iowa City; Michael Thompson, DO, Pella; Joyce Vista-Wayne, MD, Des Moines, and consumer members Diane Clark, Lake Mills and Ann Gales, JD, Bode; consumer member Monsignor Frank Bognanno, Des Moines, was unable to attend.
Executive Director’s Report. Mark Bowden reported on various items of business, including the hiring of a new investigator, Jennifer Huisman, who most recently was an investigator with the Iowa Department of Inspections and Appeals; the resignation of Blaine Houmes, MD, Cedar Rapids, as an alternate board member; and the appointment of John Marshall, MD, Council Bluffs, as a new alternate board member.
Legislative Initiatives. The IBM is proposing several legislative initiatives before the 2013 Iowa General Assembly. The Iowa Medical Society addressed the board at this meeting regarding its position on each of these IBM initiatives.
1. Prescription Drug Monitoring Program (PDMP) database – mandated physician inquiry.The IBM is proposing language to require that pharmacists and prescribers be required to make inquiry of the PDMP before filling or prescribing/renewing a controlled substances when the pharmacist or the prescriber believes or has reason to believe that a patient is at risk of diversion, misuse or abuse of controlled substances. The licensing boards, including the IBM and the Iowa Board of Pharmacy, would be granted rulemaking authority to implement and enforce this provision. Immunity against civil, criminal and administrative actions would be provided for pharmacists and prescribers “acting reasonably and in good faith” in making or not making inquiry. The IBM is proposing this legislation based on information that abuse of prescription drugs often occurs through misuse and diversion of legitimately issued prescriptions as well as its belief that physicians are not utilizing the PDMP when they could and should to identify patients who appear at risk for diversion or abuse.
IMS position: The IMS informed the Board at this meeting of its opposition to the IBM’s mandated inquiry proposal. IMS was intricately involved in the design of the PDMP in Iowa and was clear in its advocacy at that time that it opposes mandated inquiry; the current law was written to preclude mandated inquiry. Our position today is consistent with our past advocacy on the PDMP. Mandated inquiry also means new forms of tort liability for physicians; under this legislative proposal, that liability exists when a party to a malpractice action or an enforcement entity alleges that the physician should have but did not make inquiry of the PDMP. No evidence exists to show that mandated inquiry of PDMPs effectively stems the tide of patient abuse or diversion but there is concern that mandated inquiry can have unintended results of denying patients access to controlled substances that would be effective in improving their underlying medical conditions. Physicians, first and foremost, are healers and must be focused on the patient and the best course of treatment for the patient’s presenting medical history. Whether a physician fails to meet standards of medical care in prescribing controlled substances to a patient requires an examination of several factors associated with that patient’s care; mandated inquiry inappropriately fosters a finding of physician wrongdoing on the fact of lack of inquiry alone. While IMS encourages physicians to register and make inquiry of the PDMP, a helpful health care tool, it does not favor an enforcement mechanism that can be used against physicians and pharmacists in the criminal, civil and administrative settings for their exercise of judgment. The PDMP in Iowa is relatively new, having been operational only since 2009. The Iowa Board of Pharmacy reports that physician registration and inquiry of the PDMP continues to increase at positive rates. The Pharmacy Board also continues to establish and propose initiatives to improve upon the PDMP, to make it user friendly, and to assure a robust database of prescription information. Initiatives are underway nationally as well to improve upon PDMPs as valuable resources not only to identify potential misuse and diversion of prescription drugs but to further patient care. One such initiative has been announced by the Office of the National Coordinator on technology to develop the capability for real time electronic importing of prescription information from PDMPs into patient electronic health records. The IMS supports advancing physician awareness of, registration with, and inquiry of Iowa’s PDMP; mechanisms to assure accurate and up-to-date PDMP database information, including data from bordering states; user-friendly improvements to the PDMP; and “best practice” advisories to physicians relative to the complexities of treating patients needing addictive controlled substances but suspected of being abusers or diverters of such drugs. The IBM is not limited in its ability to enforce its existing rules on physician standards for prescribing controlled substances for patients with chronic pain which, themselves, emphasize the complexity of such treatment and physician judgments based on several factors, not a single event of inquiry or non-inquiry. The Board of Pharmacy is not asking for mandated inquiry of the PDMP. The Iowa Pharmacy Association, like IMS, opposes mandated inquiry.
2. Alternate board members on hearing panels for contested disciplinary cases, requiring at least half of a panel utilizing alternates be current board members. The IBM seeks to bring clarity to current law authorizing IBM appointment of “alternate” physician members of the board to a hearing panel. The proposed clarifying language would permit that at least half of the members of a hearing panel utilizing physician alternates be current members of the IBM; under existing law, a hearing panel utilizing physician alternates must have a majority of current board members which can be read to mean more than one-half. A physician, to be appointed as an alternate member of the board, must hold an active Iowa license and must have been engaged in the practice of medicine in the preceding three years, the two most recent years of practice in Iowa; these requirements are not affected by the IBM’s proposed legislation.
IMS position: IMS has been supportive of physicians serving on hearing panels as alternate board members. With one exception, to date all physicians serving as alternates have been former physician members of the IBM. This legislation, allowing alternate service on hearing panels comprised of at least half of current IBM members, is acceptable to the IMS.
3. Contested case hearings with only an administrative law judge as a presiding officer.Disciplinary hearings of the IBM are held before a panel of the board with an administrative law judge (ALJ). Iowa law requires that board members participate in a contested case disciplinary hearing against a licensee. The IBM proposes a change in law that would allow an ALJ to preside at a disciplinary hearing absent board members present. In such instances, the board would then be required to review the hearing transcript before voting on the ALJ’s proposed findings of fact, conclusions of law; the board then issues the decision.
IMS position: IMS does not support this change in law. Administrative hearings affecting a physician’s license and ability to practice medicine in this state need to be heard by a panel of the board, including physician members. Most IBM hearings are of sufficient complexity and demand an evaluation of testimony offered by medical experts, patient witnesses, and the physician licensee. It is important to physician due process and fairness in the disciplinary process that physician board members be present to hear the evidence and to see the witnesses, therefore better able to assess witness credibility and to weigh medical evidence within the context of the hearing and issues at hand. Reading a transcript is a poor substitute. The IBM, in response to IMS comments, indicated its intent to use only an ALJ in a very limited number of “non-medical” cases, such as those involving a violation of a board order; those situations would be outlined in rulemaking. The board and its staff indicated a willingness to amend its legislative request with language indicating this intent.
4. Increase in the maximum civil penalty of $10,000 to a maximum civil penalty of $20,000 per violation. The IBM notes that the current $10,000 maximum penalty that it may impose in a disciplinary matter has not been increased for many years. The $10,000 penalty maximum has been treated by the board as a maximum on the total monetary penalty that it may assess until recently when it assess a $20,000 penalty in a case involving multiple charges.
IMS position: IMS opposes the proposed $20,000 per violation maximum as excessive fining authority in any given case. The IBM is an administrative agency and its findings of disciplinary wrongdoing by a doctor are subject to the lesser standard of proof of guilt by a preponderance of evidence. A doctor might be disciplined on multiple counts that could add up to, for example, a $100,000 fine in addition to other disciplinary measures. The IBM’s proposal offers no scheduled fines structure to guide the leveling and amounts of fines. Often what is a maximum in law becomes a minimum in practice. While the Board of Pharmacy has authority in law to impose a fine up to a $25,000 maximum, the Pharmacy Board is responsible for licensing and disciplining not only the individual pharmacist but also pharmacies. IMS is gathering information from other states regarding the authority and limits of their medical boards in leveling civil monetary penalties and, to date, a $20,000 per violation maximum appears to be on the high end. Absent any limitations or guideposts on the board’s fining authority, IMS opposes this initiative. Some increase in the $10.000 maximum may be appropriate but this proposal goes too far.
Ad Hoc Committee on Physician Supervision of PAs. Iowa legislation approved in 2012 allowing a physician to supervise up to 5 PAs led the IBM to examine the need for criteria to be met by physician supervisors in competently supervising this greater number of PAs. An ad hoc committee of the board was established and continues to meet.
Administrative Rules - Physician Reporting of Hospital Disciplinary Actions Limiting Privileges – Effective January 30th. New rules requiring physician licensees to file a written report with the board describing disciplinary action taken by a hospital against the physician’s privileges for reasons relating to competency or professional conduct are now in place: http://www.iowamedical.org/documents/news/011113_MandatoryReportingRule.pdf. The rule is effective on January 30th. IMS had opposed this new regulatory reporting obligation even though physicians ultimately report this information upon licensure renewal. The board proceeded with its rulemaking but amended its rule to take into account the concerns of IMS and others. Also, the IBM has developed a document outlining different reporting obligations physicians have to the IBM under Iowa’s licensing laws and regulations:http://www.iowamedical.org/documents/news/011113_PhysicianDutyToReport.pdf.
CME Equivalency Credit for Board Service. The IBM is proposing to recognize CME equivalents to Category 1 CME credits for 2012 physician board service, including members and alternate members of the board, members of the Iowa Physician Health Committee, and physicians who performed peer review for the board. The equivalency would be based on a per hour of service basis up to a 10 hour maximum. These equivalency credits would be recognized only by the IBM for physicians meeting the CME requirements of Iowa licensure.
Maintenance of Licensure Update. Amy Van Maanen, Director of Licensure, reported on pilot project initiatives through the Federation of State Medical Boards (FSMB). The first pilot, addressing state medical board readiness, indicated a middle ground response. The next pilot addresses physician acceptability.
Meetings Attended by Board Members and Staff. Ann Gales, JD, attended a Citizen Advocacy Center annual meeting in October and found that topics being addressed by the IBM, including prescription drug abuse, are very timely; the Citizen Advocacy Center is a 501(c)(3) that provides educational and conferencing services to health licensing boards and others. Dr. Thompson attended a meeting of the American Association of Osteopathic Examiners in January and also noted that topics such as prescription drug abuse were high on the agenda. Russell Bardin, the IBM’s chief investigator, attended the 21st National Conference on Pharmaceutical and Chemical Diversion in November and particularly noted in his report the prominence of prescription drug abuse, the 2nd leading cause of accidental death, and the DEA’s report of escalating numbers of prescribed doses of pain killers and percentages of diversion of these drugs; he noted that the cited numbers are staggering.
Iowa Physician Health Program. Deb Anglin reported that in 2012, 77 physicians came before the IPHP Committee; at the end of the year, 79 physicians were in the program, 60 of them under contract. In 2012, 49 physicians were discharged from the IPHP. The greater percentage of impairments for physicians in the program is mental health.
Next Meeting: March 7 & 8, 2013.
Jeanine Freeman, JD
Deputy Executive Vice President
Legal Affairs and Policy Development
Iowa Medical Society
1001 Grand Avenue
West Des Moines, IA 50265-3502