Performance Audit
of the
Report to the Legislative Commission
Federation of State Medical Boards
Year Ending
Table of Contents
I. Objectives
II. Summary
III. Principal Recommendations
IV. Other Findings and
Recommendations
V. Comparative Data
VI. Attachments
The Federation of State Medical
Boards of the United States, Inc.
P. 0.
(817) 868-4000
Objectives
The Federation of State Medical
Boards of the United States, Inc., (“the FSMB”) conducted this audit of the
Nevada State Board of Medical Examiners (“the Board”) pursuant to the terms of
Section 41 of Chapter 508, Statutes of Nevada 2003; the Request for Proposal
("RFP") of the Legislative Commission, dated August 15, 2003
(Attachment 1); and the FSMB Response to the RFP, dated September 12, 2003
(Attachment 2). The Legislative Commission directed that the performance audit
include, without limitation, a comprehensive review and evaluation of:
a) The methodology and efficiency of
the Board in responding to complaints filed by the public against a licensee.
b) The methodology and efficiency of
the Board in responding to complaints filed by a licensee against another
licensee.
c) The methodology and efficiency of
the Board in conducting investigations of licensees who have had two or more
malpractice claims filed against them within a period of 12 months.
d) The methodology and efficiency of
the Board in conducting investigations of licensees who have been the subject
of one or more peer review actions at a medical facility that resulted in the
licensee losing his/her professional privileges at the medical facility for
more than 30 days within a period of 12 months.
e) The methodology and efficiency of the
Board in taking preventative steps or progressive actions to remedy or deter
any unprofessional conduct by a licensee before such conduct results in a
violation under NRS Chapter 630 that warrants disciplinary action.
f) The managerial and administrative
efficiency of the Board in using the fees that it collects pursuant to NRS
Chapter 630.1
This audit included an examination of
the records described in the Response to the RFP; a site visit on November 3
and 4, 2003, including interviews with four Board members, six staff, and two
external financial auditors; and a review of materials listed in Attachment 3.
1 RFP, Attachment 1
Summary
The audit indicates that the Board
meets or exceeds its statutory responsibility described in NRS 630.003,
entitled "Legislative declaration." As is the case with any medical
board, this Board could improve its effectiveness in protecting the public in
certain ways, but some changes will require legislation. The report contains
recommendations within the precise enumerated objectives of the RFP as well as
other recommendations that are presented in the spirit of the stipulation in
the RFP that the review and evaluation be without limitation. 2
The following is a summary of
findings and basic recommendations relating specifically to the objectives.
Specific methodologies and efficiencies of the Board and principal
recommendations for improvement are covered later in the report.
a) The methodology and efficiency of
the Board in responding to complaints filed by the public against a licensee.
b) The methodology and efficiency of
the Board in responding to complaints filed by a licensee against another
licensee.
The Board does not distinguish
between how it responds to complaints filed by the public and complaints filed
by licensees. All allegations of violations within the Board's jurisdiction are
investigated, regardless of source. Furthermore, the Board has a process for
taking immediate action in emergency situations involving imminent risk to the
public. An informal system exists for investigators and legal staff to discuss
cases and priorities. With the volume of investigations increasing
dramatically, for reasons discussed later, a more systematic approach is needed
to assign resources more efficiently and to prioritize those matters with
higher potential impact on citizens.
The Board should implement a system
through its database management software for assigning and tracking high,
medium or low priority to investigative cases that suggest risk to the public.
The Chief Investigator, Medical Reviewer, and General Counsel now meet on an ad
hoc basis to discuss cases and ensure that those involving higher public risk
get proportionally higher priority. These staff members or their
representatives, along with the Executive Secretary when appropriate, should
meet on a regular basis to discuss open cases and to allocate investigative and
legal resources.
While a citizen who files a complaint
("the source") receives immediate acknowledgment of the complaint
being reviewed and, if a case is closed, a closure letter, the lines of
communication should be improved between the Board and the source, especially
when the source is a member of the public. Sources should be sent regular
communications regarding where the complaint is in; the process and periodic
updates on status if the Board enters a lengthy disciplinary process. Sources
should testify in hearings unless the
2 RFP, Section V, Paragraph B, Objectives
Board's General Counsel determines
such testimony would hinder the Board's ability to prosecute.
c) The methodology and efficiency of
the Board in conducting investigations of licensees who have had two or more
malpractice claims filed against them within
a period of 12 months.
The Board reviews all reported
claims, adjudications and settlements regardless of time period; therefore, all
malpractice claims filed against a licensee within a period of 12 months are
examined. Furthermore, the Board considers all prior claims each time a new
case is reviewed. Malpractice insurers and licensees must report to the Board
any claim for malpractice or negligence and the settlement, award, judgment or
other disposition thereof. 3 The Board has a thorough screening
process for sifting through malpractice information reported to it from numerous
sources, obtaining outside expertise when indicated, and deciding whether
underlying events constitute a basis for prosecutable disciplinary action under
the Nevada Revised Statutes.
The Board recently, on its own
initiative, began reviewing county records online and in courthouses to
identify malpractice lawsuits that have been filed. Since medical malpractice
insurance companies and licensees are required by law to report these same
claims to the Board, reviewing courthouse records appears to be redundant and
an inefficient use of the Board's investigative resources. The Board's review
of such records, however, indicates that many individuals and entities are not
fulfilling their statutory obligation to report. To address these problems, the
Board should seek legislative authority to review courthouse records and
develop a consolidated reporting system or fall back on existing reporting with
an emphasis on punitive action for failure to report. .
d) The methodology and efficiency of
the Board in conducting investigations of licensees who have been the subject
of one or more peer review actions at a medical facility that resulted in the
licensee losing his/her professional privileges at the medical facility for
more than 30 days within a period of 12 months.
The Board reviews all reports
required by statute4 of changes in privileges and outcome of
disciplinary action by a licensed hospital, clinic or medical facility or
medical society. Thus, where there is statutory compliance with reporting requirements,
actions resulting in loss of privileges for more than 30 days within a period
of 12 months are always investigated by the Board. ; As with all matters under
investigation, an accounting of all prior Board investigations pertinent to . a
licensee are is provided to the appropriate Investigative Committee of the
Board when a current report is considered.
The Board should take steps to ensure
accurate, timely reporting by those entities outside of its jurisdiction and
periodically remind medical societies of their reporting requirements.
3 NRS 630.3067, NRS 690B.045
4 NRS 630.307
e) The methodology and efficiency of
the Board in taking preventative steps or progressive actions to remedy or
deter any unprofessional conduct by a licensee before such conduct results in a
violation under NRS Chapter 630 that warrants disciplinary action.
While the board takes steps to deter
unprofessional conduct, such as checking malpractice claims filed in county
courthouses and posting recent disciplinary actions, "unprofessional
conduct" per se is not grounds for initiating discipline or denying
licenure as delineated in Chapter 630 of Nevada Revised Statutes. Additionally,
the statute was recently revised to require that, in order for the Board to take
an action on a felony conviction, it must relate to the practice of medicine,
effectively removing Board discretion in such matters.
Unprofessional conduct should be
added to the statute as grounds for discipline or license denial, and the Board
should be authorized to define unprofessional conduct by regulation.
Furthermore, NRS 630.301 should be revised to restore the statute to its
earlier status by including conviction of a felony and any offense involving
moral turpitude as basis for discipline or denial of a license.
f) The managerial and administrative
efficiency of the Board in using the fees that it collects pursuant to NRS
Chapter 630.
The Board uses its fees efficiently;
however, safeguards could be improved. The auditors conducting the annual
financial audit do not present the annual audit directly to the entire Board.
The Board should create an audit committee to whom each audit would be
presented in person by the auditors. Additionally, the auditors should be
required to indicate in writing to the Board whether or not a management letter
has been prepared. The auditors should be required to submit the management
letter at the same time they submit the audit, and each recommendation
contained in the management letter should be discussed and accepted or rejected
in a public session of the Board.
Principal Recommendations
The following section details the
Board's methodologies and the audit findings for each of the points specified
for review by the Legislative Commission.
Comments on the Board's efficiencies and principal recommendations for
improvement are also provided. A review of other processes and recommendations
for improvement are presented later in the report in the spirit of the
stipulation in the RFP that the review and evaluation be without limitation.
a) The methodology and efficiency of
the Board in responding to complaints filed by the public against a licensee.
b) The methodology and efficiency of
the Board in responding to complaints filed by a licensee against another
licensee.
The process for resolving complaints
is the same for reports filed by the public or a licensee. All are identified
and categorized by source for later analysis. Except in emergency cases, all
input sources (citizen complaints, malpractice claims reported, questionable
drug prescribing identified in the prescription monitoring system, hospital
actions, complaints filed by a peer, etc.) are treated as complaints, and
investigations are initiated to explore and monitor these matters through to
disposition. (A flowchart and detailed written overview of the Board's
complaint and investigative process are provided as Attachment 4.) The method
of investigation was described consistently by all those interviewed and
especially thoroughly by those integrally involved in the process. The
methodology followed due process and good practices and provided for a fair
hearing and for appropriate sanction when indicated.
If the Chief Investigator determines
an emergency exists involving public risk, he immediately meets with the General
Counsel and the Medical Reviewer to discuss the case.If these staff members
concur that an emergency exists and the evidentiary standard has been met, the
Board is summoned for an emergency teleconference to consider a summary
suspension. Otherwise, the case is routinely assigned to an investigator for
review and case preparation.
An informal system exists for
investigators and legal staff to discuss cases and priorities. The volume of
investigations is increasing dramatically, for reasons described later;
therefore, a more systematic approach is needed to assign resources efficiently
and to prioritize those matters with higher potential impact on citizens.
Complaints need to be triaged
systematically for prioritization when cases are opened. The Board should
implement a system for assigning priority to investigative cases that suggest
risk to the public. A simple system of priority can be implemented with high,
medium or low priority assigned and tracked through the Board's database
management software. While this is not a scientific nor wholly objective
system, it will improve patient protection and in broad terms allocate
resources intelligently. This is also important for accountability purposes:
The Chief Investigator, Medical.
Reviewer, and General Counsel now meet on an ad hoc basis to discuss cases.
Open cases should be reviewed at regular intervals in a structured process
including the Executive Secretary and/or the Deputy Executive Secretary, the
Chief Investigator, the Medical Reviewer, and the General Counsel. The purpose
of this meeting is to discuss priorities of new cases opened since the last
meeting, cases where risk of further public harm is identified in the
investigative process and investigative priorities. The General Counsel can also
advise investigators in order to manage investigative resources. Investigators
should not, for example, spend time on cases the General Counsel feels lack
prosecution potential, and they should maximize resources on cases that require
more, intensive effort.
Currently, there is one Investigative
Committee (IC)5 for the Board; a second is being formed due to the
increasing workload of the investigative process. A third committee has been
formed to handle license application cases involving malpractice. The IC meets
eight times a year: the day before each quarterly Board meeting and a few weeks
prior to each Board meeting. Since Board members who have served on the IC of a
particular case are precluded from voting on the outcome of that case, having two
ICs still allows a quorum of eligible board members to vote on the discipline
in each case that is investigated. Barring board members who have investigative
knowledge of a case from voting on that discipline is consistent with standard
practices in administrative law.
The Board also has recently increased
its investigative staff. A reasonable portion of this resource should go to
timely communication with those who file complaints with the Board. While
citizens who file complaints receive immediate acknowledgment of the complaint
and, if a case is closed, a closure letter, they receive no other
correspondence in the form of periodic updates or progress of the case if
charges are filed. The lines of communication should be improved between the
Board and the source through use of regular communications about where the
complaint is in the process. (See Attachment 5 for sample form letters
currently used in the complaint process.) Such communication is especially
important when the source is a member of the public. It is less important if
the source is an organization or reporting entity such as an insurance company.
The Board should interview, call or
write every complaint source to give them an opportunity to supplement the
complaint letter, even though the current standard letter to the source
acknowledging the complaint invites the source to send additional information.
Thereafter, investigators should be encouraged to periodically update sources
on progress and disposition. A letter should go to the source when the
investigation is complete and the report has gone for review by the Medical
Reviewer and the IC. Additionally, sources should be sent periodic updates on
status if the Board enters a lengthy disciplinary process.
Sources should testify in hearings
unless the Board's General Counsel determines such testimony would hinder the Board's
ability to prosecute. A letter should be sent to the source when formal charges
are brought, with a copy of the charges and notice of the date, time and place
of the hearing and communicate the right to be present at the public
5 NRS 630.311
proceeding. The letter should also
list a contact name at the Board office for questions. Finally, the Board
should provide a copy of its decision to the source after the hearing.
c) The methodology and efficiency of
the Board in conducting investigations of licensees who have had two or more
malpractice claims filed against them within a period of 12 months.
The Board reviews all reported
claims, adjudications and settlements regardless of time. period and reviews a
chronicle of all prior claims each time a new case is reviewed. Consequently,
all malpractice claims filed against a licensee within a period of 12 months
are examined. The Board thus has a perspective on all prior claims reported
each time it examines a new claim. Malpractice insurers and licensees must
report to the Board any claim for malpractice or negligence and the settlement,
award, judgment or other disposition thereof.6
The Board has a thorough screening
process for sifting through malpractice information reported to it from
numerous sources, obtaining outside expertise when indicated, and deciding
whether underlying events constitute prosecutable disciplinary actions under
the Nevada Revised Statutes. A review and discussion of the Board's time lines
for investigations is provided as Attachment 6.
In reviewing a sample of malpractice
cases in Board files, input sources for malpractice almost never include the
plaintiff who filed the claim, or someone on their behalf. These cases are
reported pursuant to statute as follows:
6 NRS 630.3067, NRS 690B.045
7 NRS 690B.045
8 Section 54 and 63 of Assembly Bill 1 of the l8th
Special Session of the Nevada State Legislature.
9 NRS 630.307 (1) (e
10 NRS 630.3062
11 Note: the MDSP was abolished in
October 2002 by legislation but was allowed to complete cases already filed.
Per AB 1, 18th Special Session of the Nevada Legislature, claimants may either
proceed with the panel review or remove the case and file an action in state
court for complaints filed before October 1; 2002. Therefore, the Board may
still receive some reports from the MDSP until all of its cases are cleared.
The FSMB reviewers identified 200
cases involving malpractice reported by insurance companies, the MDSP, county
clerks of the court, and licensees for the year ending
For the period
Further review of the 1,154
investigations opened by the Board for the period
Three cases of malpractice were sampled
and reviewed.. One of these cases was widely reported in the media as an
example of a physician ho had a serious problem with malpractice and who
appeared to flee to another state. The following was observed:
12 NRS 630.307
specialty board approved by the
American Board of Medical Specialties, thereby demonstrating sufficient
training after he received his M.D. to practice a specialty.
Two other cases involving malpractice
were sampled and examined as to time line. In one case, the initial report came
to the Board in August 2001. Medical records were twice subpoenaed from two
hospitals and reviewed by an expert. The case was presented to the Board's
Investigative Committee in May 2002. The case then went to legal counsel with
records received from the MDSP and went back to the IC in September. The IC
authorized issuance of a formal complaint, and a hearing was scheduled in
December 2002. The Board issued a public disciplinary order in April 2003,
imposing a continuing education requirement, a fine, and a public reprimand.
The case was reported to all appropriate entities in a timely manner and
appeared in the Board's Summer 2003 Newsletter.
Board investigators recently began
reviewing county records online and in courthouses to identify malpractice
lawsuits that have been filed. A case is opened each time a lawsuit is found,
creating another layer of redundancy, because both medical malpractice
insurance companies and licensees
bylaw must report these same claims to the Board. While results are
preliminary, there appears to be a lack of reporting by both licensees and
insurance companies. It is interesting to note that physician self-reports
rarely appear in the file until August 2003, when the Board started reviewing
county records. Concurrently, physician self-reports started cascading into the
investigative system, presenting several problems for the Board.
First, a significant burden was added
to investigative resources to follow up on the claims in county courthouse
records. No centralized system for consolidating these cases is in place;
therefore, any resource dedicated to this effort is pulled away from
investigating complaints from the public and other sources. Second, reviewing
courthouse records is redundant. Assuming statutory compliance with reporting
requirements, this check .should be unnecessary.
The Board should abandon the review
of county court records. While periodic sampling of county records would help
ensure self-reporting, as noted above, the Board should periodically remind
licensees of their responsibilities to report via the Board's Newsletter, the
Board's website, and registration notices. Concurrently, the Board should
pursue failure to report by its own licensees and mount an aggressive
enforcement effort to impose discipline on those licensees who fail to report
claims.
The Board also should identify and
refer to the Division of Insurance, Department of Business and Industry, all
cases in which an insurance company fails to report to the Board. The Board
should obtain from the Commissioner of Insurance a list of insurance companies
writing malpractice insurance in
Once the Board has identified a good
sample of failed reporting in its review of courthouse records, it should either
seek legislative authority to review courthouse records, seek a consolidated
reporting system for that purpose, or fall back on existing reporting with an
emphasis on punitive action for failure to report. One approach to simplify the
process would be to modify NRS 630.307 by adding to those items that are
reported by clerks of court a provision to report malpractice claims as well as
liability judgments to. the Board. Another more cost effective approach would
be to rely on the Commissioner of Insurance to enforce newly enacted penalties
on insurance companies
for failure to report.13
The Board receives malpractice
information, both claims and settlements, from so many sources that there ore
often duplicates of the. same case migrating through the system. These cases
need to e consolidated through the computer system when initially entered to
eliminate opening multiple investigations. The reporting requirements detailed
earlier demonstrate the potential for several reports of the same event to come
to the Board. All
13
of these cases present a distorted
picture of backlog and complaints in the state and distract resources from
other priorities.
For malpractice cases particularly,
one case should be opened for the initial event reported (claim, settlement,
etc.). All subsequent reports should then be included as update material in the
chronological record, rather than as new cases. Furthermore, each case reported
by the clerk of the court or an insurance company should be checked to see if
the licensee self-reported. The Investigative Committee should be informed of a
failure to self-report and discipline should be levied as a matter of routine.
By focusing on penalties for those who fail to report, some of the redundancy
and its associated overhead can be eliminated.
A review of all the malpractice cases
in the Board files noted above reflects a paucity of patient complaints. In
samples of malpractice claims involving one licensee with numerous claims,
there was no example of a patient plaintiff who concurrently filed a complaint
with the Board when alleged malpractice occurred. The Board should find ways to
motivate victims of alleged malpractice to notify the Board of these matters.
Additionally, the legislature should consider incentives to motivate
plaintiff's attorneys and victims of malpractice to file complaints with the
Board earlier in the process, such as isolating Board action or lack of Board
action from having any impact on outcome in a civil tort case.
The premise of the malpractice system
is tort, to compensate a patient for damages caused by the negligent or
intentional conduct of a physician. The premise of the regulatory system,
however, is to enforce compliance with the standards of conduct set forth by
the legislature to protect the public health and welfare through appropriate
action against the license to practice. The Board may act against a physician for
violation of the medical practice act even though no harm to the patient
occurred. The Board may likewise find that, even though a patient was harmed,
the medical practice act was not violated. Happy outcomes in medicine are not
guaranteed, and an unhappy outcome does not mean the medicine was faulty or the
medical practice act was violated.
There may be concern about
jeopardizing a legal case if the Board intervenes, as well as reticence to
alert the Board to a claim because if the Board closes a case it may be
perceived to negatively affect the civil case. One remedy may be statutory
language that lowers perceived barriers to Board involvement, such as language
providing that the presence or absence of Board action or involvement has no
bearing on a civil case and may not be used as evidence.
With all of the reporting mechanisms
in place, some of them overlapping, in sample cases the greatest amount of time
passes between the alleged malpractice and the notice from the MDSP to the
Board of the existence of a complaint that triggered reporting. In the sample
noted previously, one malpractice case reported by the licensee on registration
in 1999 showed the date of suit as "
The legislature should consider
reestablishing a properly funded organization to perform the functions of the
Medical Dental Screening Panel. There were often significant delays between the
date of the malpractice claim and the report to the Board by the MDSP, which
medical Board staff attributes to a lack of funding for the MDSP. Although
there is a distinct difference between what constitutes a basis for a
malpractice judgment and grounds for a prosecutable disciplinary action, the
MDSP findings were useful to the Board as a prescreening tool. Malpractice
claims have increased dramatically since the . MDSP .was disbanded by
legislation in October 2002. Unless there is a direct correlation between the
occurrence of malpractice and the existence of the MDSP, this recent increase
in claims can be at least partially attributable to frivolous claims. This
benefit is now lost to the Board, and it must now scour many more claims to
identify those that should be prosecuted. The legislature should restore a
properly funded successor to the MDSP, while insisting that its procedures
facilitate the process of dealing with complaints, rather than hindering that
process unnecessarily.
Finally, the Board should
periodically ask the entire in-state licensee population, via its newsletter,
for physician volunteers for peer review. Peer review by a qualified expert is
usually necessary to meet the Board's evidence standard in a hearing. A peer
review establishes prevailing medical practices and is necessary to identify
practices falling below those standards. Peer review is therefore a necessary
part of Board operations.
Due to the geographic distribution of
the population, it has become increasingly difficult to find medical experts to
conduct these reviews who come from a part of
d) The methodology and efficiency of
the Board in conducting investigations of licensees who have been the subject
of one or more peer review actions at a medical facility that resulted in the
licensee losing his/her professional privileges at the medical facility for.
more than 30 days within a period of 12 months
The Board reviews all reports
required by statutel4 of changes in privileges and outcome of
disciplinary action by a licensed hospital, clinic or medical facility or
medical society. As with all matters under investigation, all prior
investigations are reported to the IC when.a report is made on a current matter.
Thus, always complying with statutory reporting requirements would result in a
report to the Board of actions resulting in loss of privileges for more than 30
days within a period of 12 months.
14 NRS 630.307
The reviewers identified eleven (11)
cases meeting these criteria in a review of all cases for the year ending
The Board has made no enforcement
effort to ensure accurate reporting by those entities outside of its jurisdiction.
The Board should obtain current mailing addresses of all hospitals and other
treatment facilities from the Bureau of Licensing, Nevada State Health
Division, and periodically remind all hospital administrators and chiefs of
medical staffs of reporting requirements of NRS 630.307. The Board should also
periodically remind medical societies of their reporting requirements.
e) The methodology and efficiency of
the Board in taking preventative steps or progressive actions to remedy or
deter any unprofessional conduct by a licensee before such conduct results in a
violation under NRS Chapter 630 that warrants disciplinary action.
The Board takes periodic steps to
deter "unprofessional conduct."15 Examples include:
"Unprofessional conduct"
per se, however, is not grounds for initiating discipline or denying licensure
under current
15 RFP, Section V, Objectives, B 5,
page 10.
felony and any offense involving
moral turpitude as basis for discipline or denial of a license.
Unprofessional conduct should be
added to Chapter 630 of Nevada Revised Statutes as grounds for discipline or
license denial. The Board should be authorized to define unprofessional conduct
by regulation so that it may act to protect the public when the legislature is
not in session. The administrative
process for adopting regulations provides the public, interest groups, and the
legislature with a process of oversight to ensure appropriate use of this delegated
authority. If the Board, for example, determines from surveillance of
investigations that anorectic drugs are being prescribed injudiciously for
treatment of obesity, it could create boundaries by regulation under the
definition of unprofessional conduct, imposing a timely public protection
solution. This arrangement enables and encourages the Board to deter
unprofessional conduct more preemptively.
f) The managerial and administrative
efficiency of the Board in using the fees that it collects pursuant to NRS
Chapter 630.
The Board uses its fees efficiently;
however, safeguards could be improved. The auditors conducting the annual
financial audit do not currently present the annual audit directly to the
entire Board. The report is instead presented to the Board's
Secretary/Treasurer. In accordance with law, a copy of the audit is sent to the
Legislature.
Some findings in prior audits have
not been resolved; therefore, they recur in subsequent audit cycles. These
findings were listed in the management letter, which has not been presented to
the Board in person and concurrent with the audit.
The Board should create an audit
committee to whom each audit would be presented in person by the auditors.
Additionally, the auditors should be required to indicate in writing to the
Board whether or not a management letter has been prepared. The auditors should
be required to submit the management letter at the same time they submit the
audit, and each recommendation contained in the management letter should be explained,
discussed, and accepted or rejected in a public session of the Board.
Other Findings and Recommendations
Public Records of Disciplinary Cases
Public records of disciplinary cases
are made available through a manual system consisting of request and prepayment
from the customer, processing the request by staff at the Board's office,
depositing the funds, retrieving and photocopying the public document, and
mailing the photocopy to the customer. The Board thus has the overhead of an
order/billing/shipping system. Even though this system provides a revenue
source, the net profit to the Board is marginal. The costs include tying up
staff and photocopy equipment, the attendant error whenever staff must
summarize a complex legal document, and delay to the customer.'
Recommendation: Make public Board
orders and statements of charges available to the public at no cost,
electronically. The customer looks up the licensee on the web page, and once
identified, is presented with options to select any public records. The
customer clicks on the record, and it is displayed on the customer's computer
screen via Adobe Acrobat software, an industry standard in use for such common
applications as income tax forms in all states and the federal government. The
Adobe Acrobat reader software is free. This process makes public records
immediately available to the customer where they can be downloaded and printed
with user resources. The overhead of manual photocopying and processing
remittances is all but eliminated for the Board. Furthermore, since Board
summaries of these documents can be subjective, allowing the public to access
these files directly eliminates the need to summarize them. The document thus
“speaks for itself” and interpretation is left to the reader.
Only those customers who have no
access to a computer need request a copy
of the Board's order. Experience at other Boards suggests that the
charge for providing paper copies of records may be dropped, as the number of requests
will be minimal. The process of posting these documents electronically on the
web is simple for the Board. Purchased Adobe software provides a utility to
create Adobe files using the word processing soflware used to create the
document in the first place. The Board simply mounts the file in secure file
space on the Internet server it uses and provides a link to the public record
from the physician lookup software.
Educating Licensees About the Board
The FSMB reviewers noted the Board's
efforts at physician education and noted the publication of a quarterly
newsletter, which includes summaries of disciplinary actions taken by the
board, including letters of public reprimand. The board members and staff
interviewed recognized that the board's role is primarily driven by the
complaint process. As laid out in the statute, “For the benefit and protection
of the public, the Legislature delegates to the Board of Medical Examiners the
power and duty to determine the initial and continued competence of physicians...
who ,are subject to the .provisions of this chapter.” 16 The Board
carries out this responsibility by having rigorous initial licensure
16 NRS 630.003, as amended by Section
42 of Senate Bill 250 of the 72nd Session of the Nevada Legislature.
requirements that ensure all licensed
physicians have three years of continuous successful training and have taken a
recent examination to show competence. Plans are underway to strengthen the
continued competence requirements of physicians, which will distinguish
Recommendation:. Even though the
newsletter is an excellent publication, minor changes could be made to enhance
its value as an education tool to inform physicians of the duties of the Board
and its role in protecting the public.The newsletter also serves the important
role of reminding physicians of their professional responsibilities. The
newsletter would be more effective if professionally redesigned to enhance
readability.
Members of the Board or staff should
arrange speaking engagements before physician and specialty groups and hospital
medical staffs to inform the physician population of issues facing the medical
disciplinary and licensing community and to explain how the Board works. Board
members and staff should also regularly address community groups (e.g., Rotary,
seniors, citizen advocacy groups) throughout the state.
Public Information
Public information is disseminated
through many sources such as a website, a newsletter, a process for copying
public files, public service announcements, media contacts with the Executive
Secretary and Board President, and correspondence with sources. When the media
reports referred to in the appendix were reviewed, a distorted picture of the
Board emerged. With all the attention on a few sensational malpractice cases,
the physician workforce shortage, and the malpractice climate that precipitated
a special legislative session, the Board was painted as an almost reluctant
participant by the media and by legislative sources. Our view is not that the
Board is falling short in its responsibilities or its sense of mission, but
rather that the message is simply not getting out. Steps have been described
above to make the Board more consumer-friendly, e.g., more correspondence with
sources and dissemination of public records at no charge. More can be done
through a dedicated Public Information Office (PIO) for 1) disseminating
information to the public and 2) transmitting public needs, expectations and
feedback to the Board on a regular basis.
Recommendation: Hire a full-time
public information/media/communications specialist and implement a proactive
communications program that explains the Board, its mission, and what it does
to all of the Board's publics on an ongoing and regular basis. Additionally,
there is opportunity to provide this function with little or no budgetary
impact. The Board currently funds Public Service Announcements (PSAs) at $60,000
annually. The benefits of these PSAs are at best anecdotal. They did nothing to
address or deflect criticism of the Board throughout the malpractice reform
deliberations in the Special Session: The funds for these PSAs could be
redirected to fund the PIO.
A Public Information Office could
assemble key information needed on short notice by representatives of the
media, legislature, and interest groups. Among the ingredients in
these messages should be explaining
and emphasizing the due process and statutory constraints on the board, as well
as what by law must be kept confidential and what everyone is entitled to know
and ask. The newsletter and the basic consumer brochure are good pieces but
should be redesigned so that they cry out to be read. By statute or regulation,
the board should make it a condition of licensure that every physician have a
supply of the consumer brochures prominently available in his/her waiting room.
Physician Workforce Statistics
The PIO could develop useful
statistics that serve a public purpose. There was a special session of the
state legislature to address tort reform. 17 The session was sparked
by rising medical malpractice insurance costs that led to the temporary closure
of the
One media report described
legislation to use two million dollars of Board reserve funds to set up a fund
to help physicians who have difficulty in paying their malpractice insurance.19
This would have had the effect of removing funds from the regulatory process to
augment the malpractice premiums of those with highest risk. Another report
said "Some reports of physicians relocating to other states, retiring or
closing practices were not accurate or involved relatively few
physicians."20 The Government Accounting Office (GAO), a
federal agency, conducted a survey of OB/GYN specialists and found that, of 30
OB/GYN practices in
Recommendation: More reliable
information about the physician workforce in
The Board can ask simple workforce
questions, such as are you accepting new patients, do you accept Medicare
and/or Medicaid, how many hours a week do you see patients, do you accept new
patients, and do you deliver babies. Once the Board collects the data,
17 Joelle Babula, "System sought
for reporting medical errors," Las Vegas Review Journal,
18 Ibid.
19 "Dividends or subsidies for
Nevada Doctors?" The Associated
20 Steve Tetreault, "Medical
Malpractice Insurance: GAO: Crisis exaggerated," Las Vegas Review-Journal,
21 Ibid.
22 lbid
medical school statisticians and
researchers could analyze and present the data in a cogent format. Other medical boards engage in such activity
with little additional overhead for the board. An example of a cooperative
relationship involving a health services research center and health care
regulatory boards may be found at the
Relations Between the Board and the
Medical Association
There are strained relations between
the Board and the Nevada State Medical Association. A review of media reports
indicates that the medical association is often a critic of the Board. It even
proposed legislation to direct part of the Board's surplus in funds to pay
malpractice premiums of a narrow specialty. A competitive, non-cozy
relationship with the state or any county medical society is acceptable,
perhaps even preferable, given the contrasting missions of the board and the
professional societies, but neither should be antagonistic to the other,
appreciating the distinctive role and responsibilities of each. A medical
society is an interest group. The Board is a regulatory agency with specific
statutory authority and limitations. There are plenty of opportunities for
these interests to clash.
Recommendation: The board should
undertake a continuous and ambitious program to make presentations describing
what the board does and why and how it operates to every local and county
medical association and large hospital medical staff. Similar presentations
should be scheduled with Rotary clubs, Lions, Kiwanis, chambers of commerce,
citizen groups, etc. The presentation needs to be repeated every two or three
years to each group. The members change, people forget and repetition will help
ensure most people really know what the Board does. A Public Information Office
can approach this task as a mission.
Recent Statutory Changes (Grounds for
Disciplinary Action)
Some recent statutory changes diluted
consumer protections provided by the Board. In the 72nd Session of
the Nevada Legislature, Senate Bill 250 altered the law24 regarding the
Board's ability to take discipline for conviction of a felony as follows
(language stricken by this Senate Bill is marked through): "...grounds for
initiating disciplinary action or denying licensure: 1. Conviction of a felony,
any offense involving moral terpitude or any offense relating to the
practice of medicine or the ability to practice medicine."25
Under this new language, the Board is
greatly disadvantaged in its ability to protect the public. The Board now has
the difficult burden of establishing a nexus between the felony that served as
the basis for the conviction and the practice of medicine, and the potential
for losing a case is greatly increased. A June 24, 2002, newspaper report states
that a Carson City doctor was accused of drugging his ex-wife and kidnapping
her from Utah, and his medical license in Nevada “...is active and in good
standing, according to
24 NRS 630.301(1)
25 Ibid.
the
Recommendation: Restore NRS 630.301
(1) to its earlier status to reverse the recent statutory limitation on
felonies and moral turpitude offenses as grounds for discipline or denial of
licensure. Most felonies are inconsistent with the character required of a
healer, and one should not condone or appear to condone improper sexual
activities, which is what the elimination of "moral turpitude"
implies. The state-granted privilege of licensure as a physician demands a
higher level of character. Additionally, the Board should drop "good
standing" from its description of license status. This is a subjective
statement and is not necessary when describing license status.
Recent Statutory Changes (Exception
to Core Licensing Requirements)
A recent legislative change creates a
substantial exception to the core licensing requirements contained in NRS
630.131 for physicians who have been issued a license by another state,
territory, or the
A Board that opens the door to
automatically licensing a physician based on a licensing credential from
another state exposes itself to the lowest common denominator, or licensing
standard, of any other state used at any other time. The provisions that exempt
an applicant from meeting the requirements of NRS 630.160 can have that effect
if the Board elects to create an exemption for any of those requirements. Under
the provisions of this
26 Sandra Chereb, "Probe widens in
arrest of
27 Section 6 of Senate Bill 332 of the
72nd Session of the
28 Ibid.
29 The Federation of State Medical Boards
of the United States, Inc., A Guide to the Essentials of a Modern Medical
Practice Act, (Dallas, 2003), p. 12
The Board is in a difficult position
by having an expression of legislative intent to lower these requirements on a
subjective, case-by-case basis. The Board functions in a legal environment. If
it creates exemptions for a postgraduate training requirement in one case, it
creates a precedent, thus rendering that minimum standard moot. All subsequent
applicants have a basis for demanding similar consideration. Subjectivity is
induced into a system that should be objective. Perhaps worst of all, the
physicians who minimum standards are designed to screen out have leverage to
get licensed in
Recommendation: The exception
provision for core credentials should be repealed. While we would not expect
the current board membership to exercise this waiver authority, a future board
may not be as tough, and this toughness is to the advantage of
License Registration
Currently license registration is on
a biennial cycle. All 4,400+ active status physician licensees register at the
same time – prior to July 1 of odd-numbered years. As a consequence, answers to
important registration questions become dated, and addresses often become stale
because of failure to notify the Board of changes. Licensee statistics become
unreliable, licensees are purged, and it appears that more physicians are
leaving the state than are coming in.
Recommendation: Move to an annual process
of registration based on birth month. This would purge inactive licensees and
outdated addresses sooner, provide critical self-reported information on the
registration form in a more timely fashion, and make for more efficient
processing of transactions. In addition, if earlier recommendations are
implemented regarding collection of physician workforce data, these data will
be more accurate and timely when collected and updated on a monthly basis. A
change in the registration interval requires a statutory change. 30
The Board should also implement a
system of electronic registration for licensees via the Internet. Accepting
credit card payments would provide significant convenience to physician
licensees, lower manual overhead for the Board, and provide prompt, accurate
registration information to the Board electronically.
Background Checks of Licensure
Applicants
The Board relies on applicant
information on license applications to determine whether the applicant has a
criminal history. There is no primary
source verification of these responses. Instead, the Board validates these
answers with the applicant through a registration form that is mailed to the
applicant shortly after licensure. The form asks the same yes/no questions appearing
on the application form. The Board checks responses forinconsistencies and occasionally
detects them.
30 NRS 630.267
Recommendation: The Board should do
primary source verification of criminal history. It may contract with a private
vendor for such criminal record checks, but there are disadvantages to this
approach. Private vendors generally check records state by state and this can
lead to omissions. These private companies do not have access to the
consolidated records used by law enforcement agencies.
The best system currently available
to a qualified agency such as a medical licensing board is the federal law
enforcement system (National Crime Information Center) maintained by the US
Department of Justice (USDOJ) through the Federal Bureau of Investigation (FBI).
To gain access to this system, the Board needs specific statutory authorization
from the legislature. The USDOJ can furnish template language for this purpose.
With fingerprint cards that meet FBI standards, the Board can check the
criminal records of all applicants. States that adopt this process usually get
two sets of prints, one for the state law enforcement check, in this case
Comparative Data
1) FSMB Composite Action Index3l,
attached. This index is a weighted averaging of statistics that allows a board
to compare its level of disciplinary activity to itself over time. However, it
does not take into account variables such as:
This index is, however, one indicator
of performance as qualified above.
2) The Nevada State Board of Medical
Examiners is in the forefront nationally among medical boards that have sought
improvement to their licensing statutes. The FSMB publishes model guidelines
for such efforts, 32 and this Board has embraced most of them.
Minimum licensing requirements have been adopted, including training and
examination requirements. Grounds for disciplinary action incorporate the
latest thinking of medical boards. Finally, there is a national dialogue in the
area of medical licenure to implement continuing competence requirements for
physicians, and this Board is proposing such standards. A recommendation was
made above regarding checking for criminal history, one of the few areas in
which
31 See http://www.fsmb.or, Media room,
For immediate release
32 The Federation of State Medical
Boards of the United States, Inc., A Guide to the Essentials of a Modern
Medical Practice Act. (
Composite Action Indices*
1993- 2002
|
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
1999 |
2000 |
2001 |
2002 |
|
Composite |
Composite |
Composite |
Composite |
Composite |
Composite |
Composite |
Composite |
Composite |
Composite |
|
Action |
Action |
Action |
Action |
Action |
Action |
Action |
Action |
Action |
Action |
|
Index |
Index |
Index |
Index |
Index |
Index |
Index |
Index |
Index |
Index |
|
4.64 |
4.00 |
7.78 |
5.10 |
4.32 |
4.99 |
3.94 |
4.16 |
4.89 |
4.33 |
*The Composite Action Index (CAI) is
the arithmetic mean of four ratios provided in the Federation's Summary of
Board Actions: Total Actions/Total Licensed Physicians, Total
Actions/Practicing In-State Physicians, Total Prejudicial Actions/Total
Licensed Physicians; and Total Prejudicial Actions/Practicing In-State
Physicians. Each of the four ratios offers a useful and interesting measure of
activity within a jurisdiction. However, to depend on any one as a definite
measure would be to ignore significant; variables represented in the others.
Therefore, the Federation has created the CAI to combine the four ratios into a
single composite ratio for each board. This simple device, the CAI, permits
relevant variables to contribute in a balanced way to a final figure that can
be useful in measuring an individual board's disciplinary activity over time.