minutes of arizona medical board public meeting 10-14-2010

8/8/2019 Minutes of Arizona Medical Board Public Meeting 10-14-2010

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ARIZONA MEDICAL BOARD

OCTOBER 14, 2010

EDITED TRANSCRIPT

[Interpolations by the editor for clarity are in square brackets. Editors commentary isalso in square brackets preceded by ED.]


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Roll call

Call to Public : We will be calling e ach person up by name. Youve got three minutes . Ifyou speak about patients please use their initials to protect their anonymity.

There will be no interaction between the Board itself and the members called. We donthave our usual light system. I will just remind you when the two minute mark isapproached, and then the three minute mark Ill let you know. So the first member to callto public is Dr. Jane Orient.

Dr. Orient : I am Jane Orient, MD, member of the Board of Directors of the Pima CountyMedical Society and a Past President of PCMS.

A physician who is sent to PACE is required to pay a substantial sum of money, say$20,000, and loses time from practice. This has the effect of a punitive sanction. TheBoard of Directors of the Pima County Medical Society was assured by a physicianmember of AMB that the Board would agonize over imposing such a measure.

I believe that the Board may be misinformed on this point. It appears that a physiciancan in effect be ordered to pay the money immediately, despite financial hardship, andgo to PACE, under threat of license revocation, solely at the discretion of theadministrative staff, or at least without consideration by the full Board.

While the physician may be told that PACE is to evaluate an area of suspecteddeficiency, it is not clear what instructions PACE is given, and what recourse thephysician has if PACE deviates from the instructions for example, by subjecting thephysician to a battery of tests for which the physician has no opportunity to prepare, inwhat may appear to be a fishing expedition.

The public and the physician community need to know:

1. What financial or other relationships exist between AMB and PACE?2. Are these relationships affected in any way by the outcome of PACE

evaluations?3. Who evaluates the evaluators, and determines that PACE is more appropriate

than a less expensive evaluation, say by a faculty member of an Arizonainstitution such as the College of Medicine?

4. How long has PACE been utilized?5. How many physicians are required to go there?

6. What statistics are kept on the outcomes, and how may they be ccessed?7. Is the remediation accomplished by PACE evidence -based? (Is there any

evidence that physicians provide better care after completing the program? Isthere a more cost-effective way to achieve the same results?)

Keeping in mind that a physicians livelihood may be destroyed by a negative evaluationby PACE, after successfully completing many years of rigorous training and evaluation,


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and providing many years of service to the community, the following safeguards are inthe public interest:

1. The AMB should codify its procedure for making a referral to PACE, includingphysicians due process rights and recourse if the procedure is violated.

2. The physician and PACE should be given identical instructions concerning thepurpose of the evaluation and methodology to be used.

3. The physician should have the right to record all interviews.4. The physician should have the right to subpoena and cross examine evaluators,

and to present opposing evidence to an unbiased forum.5. PACE should be required to supply information on validation and norming

processes for examinations, and all examinations should be shown to be valid forphysicians engaged in practice.

Dr. Douglas D. Lee, Chair : Would you consider winding up?

Dr. Orient : Yes. Potential conflicts of interest should be disclosed and a physicianshould have the right to a hearing before being sent there. I do have a written copy ofthis for Board members. [Copies of a written transcript were provided to a staff member,who might or might not have distributed them to Board members.]

Dr Lee : Thank you for your appearance today. We next have Dr. Scott Forrer.

Dr. Forrer : I have been prevented from attending meetings where Board members werepresent. I had hoped to present this material, which I have brought and would like toleave with you for your review if youd like. [Dr. Forrer attempted to hand it to thechairman.]

Dr. Lee : Any material you can leave with staff.

Dr. Forrer : I want to present to you for your review sir.

Dr. Lee : Our process is to give it to staff. Thank you.

Dr. Forrer : My name is Scott Forrer. Im a practicing physician of neurology in Tucson.Ive been in practice for 20 years. I wanted to speak about preparing for formal hearingfrom the standpoint of the respondent. I have been through many adjudicationproceedings in all my years. I think I have a unique perspective from the respondentspoint of view.

There is the ability for the respondent to interact through the chairman at a hearing byasking questions to staff or to the medical consultant. Whats lacking is the chance tointeract with the outside medical consultant and ask questions. Often the consultant citesstandards of care . When the respondent cannot a sk the basis, the rationale, thereasoning, the foundation of the facts as to how that medical consultant arrived at theirconclusion of what is an accepted standard of care for the community or internationally,the respondent is at an extreme disadvantage.


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Going beyond that I would just say that as you physicians and Board members are goingto review or interview a respondent, you cant take at face value all the information putbefore you by staff as being accurate. There are a lot of things in there that may betaken out of context

Dr. Lee : Two minutes is up. You have a minute more.

Dr. Forrer : There are things that are entered into the record or entered into the casematerials that really may not be in full context. Whoever is the presenter before a formalhearing for a physician really has to dig into these materials.

I think on many occasions though these cases are big, and theres a lot of detail ,were talking about a physicians career, a physicians license, sanctions, probation,legal acti on, suspension, all kinds of ways a physicians life is affected, and also a family,a community, and patients, and they need to be approached with a profoundthoroughness for uncovering what the truth is in these matters. Thank you.

[ED. An armed security officer was present, between members of the public seated atthe front of the room and the U-shaped Board table. He prevented Dr. Forrer fromhanding documents to the Board chairman. These were sequestered by a staff member,and Chairman Lee was observed to be leaving the meeting after adjournment with noneof the documents in his possession. Dr. Forrer attempted to pass a written question tothe chairman so that he might, if he wished, address it to a speaker. The question wasfirst delivered to the secretary, Dr. Amy Schneider, to be entered into the record, but wasthen withdrawn by staff. Persons addressing the meeting at the Call to the Public wereadmonished that there were to be no attempts to interact with Board Members. Thesecurity officer then required that any members of the public who needed to leave theroom had to walk in front of the speaker, instead of around the table where Boardmembers were seated, apparently to prevent them from directly giving anything to aBoard member.]

Dr. Lee : Tha nk you. Our next speaker will be Dr. David Ruben.

Dr. Ruben : Thanks for giving us the opportunity to speak to you. I have been licensed,and as such working under the Boards authorization for 35 years in Arizona. Ive gotboards in four specialties and a m asters degree.

Its interesting how systems work ...and how organizations can dysfunction. Ive beenmore directly involved in the Board the last couple of years with a couple of complaintsand got to see up close the processes and been involved in the Southern Arizona PainSociety as part of the Arizona Medical Society and have spoken with many differentpeople.

From my perspective, which has been more recently involved the treatment of painpatients, the medical system in Arizona is not regulated and is dysfunctional. You guysare not the bad guys. Its the system that for many reasons mixes a lot of oil and water,medical and legal processes. There are political issues and many things that affect this.

But pain care in Arizona, as youve heard m ore recently, is really not available in ourarea. Physicians are not doing it. Patients cannot find care. Most vital I think for solvingthis problem is all the stakeholders the regulators such as yourselves, physicians such


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as myself, organized medicine, the legislature which creates statutes, the payers asinsurance companies need to work together. Its a systems problem. Its adysfunctional system with a problem.

Many of our complaints, whether they involve a poor review of records or a lack ofcommu nication in presenting our cases to the Board, or poor adjudication thatsprohibitively costly to us, are an outcome of the systems issues.

Im a family therapist. I work with organizations. The way that usually these issues canbe solved is for stakeholders to get together in some way and talk about it. No one entitycan do it by themselves. We cant do it by ourselves. You guys cant fix it by yourselves. Communication and interaction of creative ideas is what is needed.

What I propose to you folks i s that we have a group, were calling it the Pain Alliancebecause pain seems to be the head of the boil on this issue and affects all medicine, andpain is certainly a very complex, very difficult to treat issue. We have created a group ofpatients, physicians, representatives from organized medicine, the legislature andpayers.

We would invite the Board to participate with us in solving some of these problems.None of us can do it by ourselves. Beyond that, thats my point today. I thank you verymuch for this opportunity to come speak to you. I hope we can get something working ina better manner for all of us. Thank you.

Dr. Lee : Thank you.

Male: Question please.

Male: Theres no dialogue between

Male: Mr. Quantz arrived from Tucson late, I think because of the difficulty of finding thelocation, I wondered if he would be permitted to sign in?

Male: Oh, absolutely.

Male: The next speaker will be Dr. Darrel Jessop.

Dr. Jessop : Good morning! Thank you very much for the opportunity to be allowed tocome here and speak this morning. There was a lot of detailed stuff that I was going toget into this morning, but my comments will be very quick. It will be addressed primarilyto the physicians on the Board.

I think our struggle is really broken down into two polarities right now. We can citedifferent cases, individual situations that weve found ourselves involved in with theBoard . In looking over some of the cases that have transpired without naming anynames of the individual physicians involved, in examining the court documents andmaking an attempt to understand the findings, the recommendations by the court andthe admonishments by the court toward the Arizona Medical Board, I think we can seewith a certain amount of clarity that there have been indications of deceit, ofmisinformation, and in some cases outright lies. These are born by the court documents.


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My question to the physicians of the Board this morning is, where is your moralcompass? You are primarily responsible in overseeing this adjudication process. Why doyou allow this to go on? Why is it that we have to wait for a court of law to see that aphysician has received due process, or that there have been facts in the case that havebeen misrepresented? Wheres your ethical respon sibility as doctors?

To me that calls into question of whether you should be practicing physicians. Its all partand parcel of the same spectrum. Because you appear as a Board representing thepublic at large does not mean that removes you from any responsibility for passing

judgment on your colleagues as well.

But Im going to finish this morning by stating that whether we all realize it or not, thetimes have changed. The fact that we are here this morning making these statementsshows that. There needs to be accountability, and thats not meant to be a threat ; it justmeans that there are more informed people such as physicians, such as people involvedin the law community and in state and federal governments that are overseeing whatgoes on at this level. I urge you to look within each and every one of yourselves to askthat question. What is your ethical responsibility and accountability? Thank you verymuch.

Dr. Lee : Thank you for appearing.

Male: The next speaker is David Quantz.

Mr. Quantz : Thank you. I apologize for being a few minutes late. I was coming up fromTucson and I ran into an accident on the 101 North and traffic stopped. Those of youfrom Phoenix are familiar with that.

Im going to make my comments brief too. I dont want to get into any kind of anemotional debate. My concerns are about what this Board has in mind for statutory

amendments, because I see here on number 5, the consideration and/or approval ofpotential statutory amendments as on the meeting agenda.

Ms. Wynn has I believe a copy of my suggested amendments. They all go to dueprocess rights for doctors . From a legal perspective, they are woefully lacking.

The idea that you get a five minute or three minute chance to verbally defend yourself,from the perspective of an attorney is just senseless. The inability to cross-examine theoutside medical consultant, to find out why he or she came to the conclusions that he orshe came to makes no sense to me coming from again, the perspective of an attorney.Im a trial lawyer. Thats what I do.

Truth in the American jurisprudence, Anglo-American jurisprudence which has lasted700 years, 800 years, comes from the ability to meaningfully cross-examine andquestion those who come and accuse you. Thats what due process is. Due process inits simplest form is notice and a fair hearing. Thats what we call procedural dueprocess notice and a fair hearing. Theres notice in your process, but there is no fair hearing.

Ive heard secondhand that Ms. Wynn has proposed some changes, or at least isconsidering some changes, all which are welcome if the Board chooses to proceed that


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way. Insufficient, but welcome. If the Board feels that its procedures as-is is sufficientdue process for the doctors that come before you, then I will do what I can to approachthe legislature in this coming session to force due process on the Board. I appear inmany different courts.

Dr. Lee : Time has expired. Would you consider concluding?

Mr. Quantz . Thats it. Thank you.

Dr. Lee : Are there any other members of the public who have not signed in who wish tospeak?

Dr. Ruben : Ive used my three, but theres another subject I could address if I haveanother minute.

Dr. Lee : You know

Dr. Ruben : Its on your agenda today.

Dr. Lee : Pardon me?

Dr. Ruben : It is on your agenda today.

Dr. Lee : I will allow one more speaker. Im not going to allow everybody another chanceto speak on another subject. So you may, I will give you three minutes.

Dr. Ruben : Thank you. The other issue I want to address i s he monitoring agency,Affiliated Partners.

Affiliated Partners, which is part of a consent I signed, are going to monitor me. When I

signed the contract with them, the consent agreement said that they would monitor afterI completed the PACE course. They attempted to start monitoring beforehand and I hadto spend a fair amount of money with my attorney to get that straightened out. So thatwasnt being followed exactly. I got it straightened out.

The contract itself said such things as, If there is a dispute between us it will be settledby some sort of process or arbitration but youll pay for it. I said, I ll pay for it if I lose, butnot if I win.

The other part of the contract was that I would pay for the time the consultant came andreviewed charts, but I would also pay for travel time. I said look, you guys are in Boston.I want you to find somebody local. I dont want to pay thousands of dollars for somebody

to fly from Boston. They said, Well make our best effort to do that, but you have to signthe contract this way. There are a few other minor points.

They said to me, Dr. Ruben, weve done hundreds of contracts and youre the onlydoctor thats ever objected to any of it. I can tell you from the physicians perspectivethat were scared to death that if we dont do everything the monitoring company orPACE says that we will be out of compliance and have unprofessional conduct allegedbecause we dont agree to a contract thats not fair. We have no way to negotiate.


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So Id like you to consider that and just be aware of some of the specifics that result fromsome of the things youre doing. Theres a lot more on that, but those are a couplethings. Thank you very much for the extra time.

Dr. Lee : The next items on the agenda is formal interviews

Jennifer Boucek, AAG : This is Part 2 of the training series were doing. Well do Part 3today as well. We did Part 1 at the last Board meeting. This time were going to doFormal Interviews, which is the process that takes place at the end of an investigationbasically.

We started out with our training talking about legal representation and legal advice. Iexplained at that time I am legal advisor to the Board. We also have litigators; our chieflitigator is sitting against the wall there. We also have independent advice given by theSolicitor Generals office. But today well talk about Formal Interviews.

The Formal Interview begins when a Board investigation is complete and the case issent to the Special Investigation Review Committee for review. If SIRC recommendsdiscipline or suspension or revocation of less than one year the Board staff sendsphysicians a letter offering either a Consent Agreement if they want to settle withoutgoing through any sort of interview or hearing process, or they can opt for a FormalInterview or a Formal Hearing.

Now, if the committee recommends revocation or suspension greater than one year, thestatute requires that the case go to Formal Hearing. So a referral is made by theExecutive Director to the Attorney Generals office for Formal Hearing at the Office of Administrative Hearings. The physician has an opportunity to appeal this referral to theBoard and the full Board will consider that appeal.

If SIRC recommends an Advisory Letter, which is a non-disciplinary action, and it comesbefore the Board, but after reviewing the record the Board determines that disciplinemay be appropriate, then the case is sent back and the physician is offered all threeoptions.

Dr. Lee: Ms. Boucek, if I may interrupt. Id like to go back a slide there . If a SIRCrecommendation is for greater than one year and the physician chooses to go to aninterview, a Formal Interview, youre saying thats a choice?

Ms. Boucek : No, it is not . [If youve got] a SIRC recommendation for revocation orsuspension, what you do is review whether you believe that SIRC recommendation is

appropriate.

Dr. Lee : Okay, its just a consideration on our part as to whether that revocation greater than a year is appropriate or not.

Ms. Boucek : Right. Okay, now Formal Interviews. You know, one of the mainconsiderations as you move forward in a disciplinary process is due process. Physicianshave the right to due process, particularly under the United States Constitution, the 14 th


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Amendment which has been held to apply to the states, no state shall deprive anyperson of life, liberty or property without due process of law.

Basically a license such as a medical license has been held to be a property interest.Because physicians have a property interest in their license that means that you cannottake disciplinary action without affording the physicians due process rights, andphysicians cannot be penalized for exercising their due process rights.

So the process, with all administrative agencies in the state, is supported usually bygoing to an administrative hearing at the Office of Administrative Hearings. That really isoffered to all physicians facing disciplinary action in Board proceedings . The Office ofAdministrative Hearings is an independent body, where the case is heard by a neutraladministrative law judge or ALJ. The physician and the state are both represented bylegal counsel. In the case of the state it would be the Attorney Generals offic e.

There will be an examination of the Board evidence. The Board will have the burden ofproof in these cases. There is cross-examination of Board witnesses, including theBoards outside medical expert who does the initial opinion that gives rise to the SIRCrecommendation for discipline. So there is an opportunity to cross-examine the outsidemedical consultant (OMC) during a process at the Office of Administrative Hearings.Then the physician has the opportunity to present evidence and witnesses in support ofthe physicians case. This really is like a mini-trial, but the rules of evidence aresomewhat more relaxed.

Female : The physician is offered this option. If theyre up for disciplinary action theyreoffered the chance at this due process, interviewing of the other physician, that s beenone of the complaints weve heard. Theyre offered that versus I guess the FormalInterview with us. The Formal Hearing is very different than the Formal Interview.

Ms. Boucek : That is correct. Actually I prefer to look at it as the default. This is the

standard process. What the Board offers actually is an additional process, an option fordoctors. If they would prefer not to have to go through a legal process but actually gothrough one where theyre judged solely by their peers, in other words m embers of themedical Board, and youre involved in a kind of professional exchange with members of the Board, youre asked questions by other doctors.

I have heard practitioners, legal practitioners, who appear before the Board say that theyregularly c ounsel their clients to opt for the Formal Interview because its a much better avenue for them . These attorneys really dont like to put their clients in front of anadministrative law judge who may have no background in medicine or medicalterminology, and may have a difficulty in even understanding the substance of thearguments presented.

Dr. Lee : Is there only one judge that

Ms. Boucek : There is one Administrative Law Judge who hears the case. Now there area number of different judges at the Office of Administrative Hearings.

Dr. Lee : Theres no jury?

Ms. Boucek : No theres no jury. No. Its just a judge.


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Dr. Lee : So in our informal interview process we share with the licensees that it is not aFormal Hearing and that they are waiving the right to a full evidentiary hearing, and theyhave no opportunity to question the medical consultant in the process that they havechosen. Is that correct?

Ms. Boucek : That is correct. I ts discretionary for the Board to offer Informal Interviews. Like I sai d, its just an option thats offered doctors because it does provide them thelegislature set up the medical Board process so that doctors could be judged by otherdoctors, perhaps not by other lay people who might not understand some of thecomplexities of medical practice.

In any event, if the interview is offered it is important that the physician understands theparameters and the process of the interview because they are different from the FormalHearing process. What we have instituted now is a waiver, a formal waiver of dueprocess rights.

Because theres a recognition that you are in fact not going to get the same legal dueprocess rights that you get in the Formal Hearing the primary one being the ability tocross-examine the medical expert who rendered the opinion that gave rise to therecommendation for disciplinary action. As I said if they want to attend an informalInterview they must waive their due process rights.

Dr. Lee : If they choose not to waive that right when the chair asks that question andthey say no whats the next step?

Ms. Boucek : We immediately say that this case is being referred to Formal Hearing atthat point. Well take no further action at that point. If youre coming before the Board foran informal Interview you have to acknowledge both in writing and in a formal statementbefore the Board at the interview, that you are knowingly and voluntarily waiving your

due process rights.

Dr. Lee : Thats explained at the Board staff as well as hopefully by their attorney Some physicians come without attorneys, but staff does inform them of this choice.

Ms. Boucek : Right. The staff sends a letter to the physician explaining the options inwriting. Theres a CD with the investigative materials so the physicians can evaluate t hecase.

Then theres the explanation of waiver on record at the beginning of the interview tomake sure, to reinforce the fact that this is knowing and voluntary.

One of the interesting things too that I found because Ive been a representative of anumber of other agencies is that the medical Board is very good about giving thelicensee access to the investigative materials at a very early stage of the proceedings. Iknow that policy has evolved over time, but currently there is every effort is made to givethem materials early on in the process, and then at the end of the process as well so thatthroughout the process the physician understands what the staff is reviewing as it goesthrough its evaluation.


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The due process waiver was based on a case that was brought back in 2002, because itused to be that the Board, based in large part I think on the way the statute was written,had the option of doing just an Informal Interview, but there were no formal requirementsfor doing a waiver. But this case Dale Webb vs. Board of Medical Examiners camebefore the court of appeals [http://www.aapsonline.org/judicial/webb.pdf]. As I said, theprevious process was to schedule the interview without explaining the rights, and withouta waiver. The court held because there was no waiver of due process the Board shouldhave permitted cross examination of witnesses at the interview, including the medicalconsultant who reviewed the case.

Now it differs. Really the whole process of waiver is based on that, their reaction to thatdecision. Like I said, we get through a couple of steps to be sure that people are awareof what theyre giving up when they do sign the waiver.

Now during the process it starts out with a brief opening presentation by the physicianand by Board staff. Board staff usually has one of the medical consultants, if it is aquality of care case, one of the medical consultants that is on staff explain the case. Butthat is not necessarily the medical consultant who renders the opinion that forms thebasis of the SIRC recommendation.

The physician and/or the physicians attorney can make a brief opening statement aswell. The Board then questions the physician. As youre aware, theres usually oneBoard member who is appointed as the presenting member and that physician starts outwith the questioning. But as soon as that physician is finished it switches to anotherBoard member or any other Board members who want to ask further questions.

[ED. The physician has the option of some due process rights, including cross-examination of the Boards experts, before one ALJ who may have no medicalknowledge and whose decision is not final, OR no due process rights before the medicalBoard, of which the majority are physicians, and whose decision is final.]

Dr. Lee : We have over the years had legislators and others who have interpreted thatfive minute brief opening statement as a presentation of their case. That is not thepurpose of the opening statement. The Chair usually states that the opening statementis just to make some important points and that we have in our files entire argument byphysician and the Board staff about the particular case. So opening statement is merelya summary of the things that are thought about. Is that the way it is to be interpreted?

Ms. Boucek : Yes. I mean it probably is best for the physician to just kind of crystallizewhat points they want the Board to concentrate on, because they will have anopportunity, and y oure not really going to be able to get in all the informatio n you needto within that five minute opening presentation. Youre best hitting the high points and

then just setting the framework for what your argument is going to be and then goingfrom there.

Dr. Lee : So the purpose is summary. [I emphasize that] because one of the legislators anumber of years ago made a comment that a physicians life and career is in your handsand you give them five minutes to speak about it. But again, thats not the purpose of theopening statement, is that correct?


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Ms. Boucek : Yes, that is correct. They should have an opportunity, and its generally thepractice of most of the Board members who ask the questions, who are presentingmembers, to actually go through the physicians history, qualifications, education. That isa good idea for anyone who is a presenting Board member to go through thosequalifications so you have a sense of the background and experience of the personyoure questioning , you know, youre questioning. So those kinds of things can come outin the interview.

Theres an opportunity during the interview for physicians to bring up matters that theybelieve are not being addressed through questioning by the Board. There is also anopportunity for the physician to briefly question staff presenters through the Board chair.We do require a parliamentary procedure that questions are directed first to the chairand then to the staff member. At the end there are brief summations by physician and/orthe attorney and Board staff.

Once that occurs, at that point then all dialogue between parties between Board andthe doctor are cut off, and the Board deliberations begin. Those are all done in an openmeeting format unless of course the Board requests legal advice. Then we may go intoan executive session. But the deliberations are all done in public and the decision isdone in public as well.

As you can see, its not a traditional adversarial proceeding. In many ways you can sayits a fact-finding mission by the Board itself to get some sense of what may not beevident from the medical records themselves.

Throughout the process the legal advisor, which is me at this time, provides advice onprocedure and Board legal authority to act both during open and executive sessions. Atthe end of the conclusion the Board may dismiss the case, find that there has been nounprofessional conduct, no violation of any statute that would provide a basis for anysort of action, either disciplinary or non-disciplinary.

It can also find unprofessional conduct and thats a two -part process. The vote is taken.Theres a determination and a vote on whether there has been unprofessional conduct. Thats when the Board usually , if it is a quality-of-care case, will discuss the standards ofcare and deviations and potential or actual harm.

Dr. Lee : To get to a finding of unprofessional conduct there must be a standard of caredeviation, is that correct?

Ms. Boucek : Not necessarily. Thats if you find a Qviolation. If you find the medicalrecords all you need to do is find the medical records inadequate. Or there may beviolations of a Board order. S ometimes in these cases were not talking about medical

practice at all. Were talking about violation of a Board order or perhaps commission of afelony or something like that. In that case staff then will be the presenting investigatingstaff.

Male : [It appears that] ... everyone could be punished under unprofessional conduct.[But we as physicians understand what we are doing , and that its about not harmingpatients ]


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Ms. Boucek : Yes, absolutely. Actually that is your role. Thats the most important roleyou play is you bring to the table basically, your expertise as a doctor and yourknowledge of how it works. I mean this is why I said some attorneys will not counsel theirclients to go to the Office of Administrative Hearings because an ALJ would not knowabout electronic medical records and about how much has been perhaps generatedautomatically. You as a physician know about what it means to be in practice day to dayand you understand those things. You are supposed to exercise your discretion and usethat expertise you have.

Male : If I strictly go by the statute something may be unprofessional conduct though itdoes not affect the patient, but we may not find it to be unprofessional conduct. [ED:There may be selective nonenforcement.] Is that correct?

Ms. Boucek : The one thing to keep in mind when you are deliberating is your main goalis to protect the public. So you keep that in mind as kind of the standard that you use.

For example, medical records and this has come up in cases. One of the things youlook at is could a subsequent provider understand what treatment had been given to apatient based on the medical records.

If you feel like there was a technical omission or error maybe but you could still knowhow to treat the patient, and like you say the patient shealth or well-being would not beaffected, the public is not harmed either actually or potentially, then you can exerciseyour discretion and say this is such a minor technical point it either does not rise to thelevel of discipline certainly, and you could even decide that it is a case that you woulddismiss because it just doesnt rise to the level that you think you need to protect thepublic from that kind of conduct.

Male : Is it necessary to find unprofessional conduct if you can go for non-disciplinaryaction of an Advisory Letter, and is it allowable to find unprofessional conduct and then

dismiss?

Ms. Boucek : Thats a very good question. There is a kind of I will say this. Oncontinuing medical education orders you absolutely have to find a statutory violation.Even though that is a non-disciplinary order it does actually require a physician to go tospend money and spend time going to a continuing education course. It is considered anappealable agency action and that requires a statutory violation.

The Advisory Letter is a little bit different because it is more like a warning I think wevetalked about. It is not a disciplinary action. It doesntit doesnt get reported to theNational Practitioner Data Bank. It has been upheld by the courts as being non-disciplinary and not subject to appeal, not subject to full due process rights because it is

just such a low it is a warning and not really a sanction.

So the definition of Advisory Letter does leave open an interpretation that would allowfor you to issue an Advisory Letter without a finding of unprofessional conduct I believe,because Part B does say, and I know Ive actually given that Ithink it technically does.

I will tell you I think youre better off if you have some statutory basis for moving forwardon an Advisory Letter because if you are looking at this for tracking purposes, and it isused for tracking purposes, it is best that you have in the back of your mind that [there


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might actually have been] enough evidence to support a finding that they had in factcommitted unprofessional conduct.

Male : Can you have a finding of unprofessional conduct and dismiss it?

Ms. Boucek : Yes, you could. You could do that. Someone might argue that you werenot protecting the public interest in that case, but the interesting thing I will say this.The Medical Practices Act does not give the patient or the complainant the right toappeal the matter. Dr. Schneider?

Dr. Amy J Schneider : Because the chair directs [the question] back to the Boardmember that presented the case, do you have any recommendations on the finding ofunprofessional conduct? Could you just clarify for me what is supposed to be stated,what statute at that point? And then theres two parts, the finding of unprofessionalconduct, and then discipline.

The physician who is presenting the case might go ahead and recommend to the Boardwhat theyre going to recommend for discipline because it some times is very confusing,say if theyre thinking Advisory Letter and everybody votes down unprofessionalconduct.

Ms. Boucek : Thats okay. We do this, we set this up so its clear for the record, buttheres no reason why you cant you know, because the presenter is just giving youtheir opinion. Both are motion and deliberation processes. In other words you can talkabout it at that time.

I think, Im hoping now we are more clear on the fact, especially because for examplewith the continuing medical education order you do have to have a statutory violation. SoI hope the Board members understand even if youre finding unprofessional conduct thatdoesnt mean youre going to have to impose discipline, not by any means. I think its

Dr. Schneider : What statute specifically needs to be cited?

Ms. Boucek : Well it can only be the statutes that are noticed in the SIRC to the court.That serves as the notice of violation . Now a statutory violation is a [different thingfrom saying a deviation from a standard of care]. The Board can bring its own expertiseto the situation and add additional violations if it finds them through its review of therecord .

Dr. Schneider : At the time were voting for unprofessional conduct or not, as thepresenting physician would I need to state the standard of care violation and then the Qand E in entirety .?

Ms. Boucek : No. B ecause were used to doing it you could say a Q violation, that isunderstood. When you say unprofessional conduct, Q is under the definition ofunprofessional conduct so it is understood that is referenced to paragraph Q. Then whathappens is I prepare a paragraph of the findings of fact, conclusion of law and order andyou review that again to make sure it reflects what you as a Board had decided.

So its important for you to review that carefully and In other words I take down whatyou say and I understand Q to be a violation of ARS 32-140127Q. That generally is


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correct. But if for some reason I were incorrect in that you have the obligation to reviewthat.

Dr. Schneider : I would ask whats a standard of care violation ? I just want to be veryclear.

Ms. Boucek : There is statute Q that says shall not engage in conduct that I lostmy exact wording that may caus e or causes harm to the public. And standard of caredeviations are a way of fleshing out how in fact they violated Q. So you state a standardof care and say this was the standard of care they should have followed, and thedeviation is what they did, which was not up to the standard of care.

I will often ask, Are the standard of care and deviation those that are in this SIRCreport? Sometimes the Board will decide there are three standards of care and threedeviations listed, but that you dont believe one of them was sustained by the evidence,after interviewing the doctor, so that one will be taken out.

That is why I will ask you, Do you want all of the ones that are in the SIRC report to belisted? Ill make sure. Then Ill ask you also to specify the actual or potential harm,because that is part of the Q statute, you have to show either actual or potential harm tothe patient or to the public.

There is case law on that as well saying if you arent really clear about what that is andwhether it is potential or actual the court is going to send it back to you for review. Thatswhy I ask for that as well to be specified on the record.

Male: In the situation where the Board may wish to be able to track a physician but maynot want unprofessional conduct for example a hospital reports a physician or reducesprivileges of a physician because there are multiple complications reported, for asurgeon lets say , and none of those complications by themselves would necessarily be

cause for alarm, but there are multiple, perhaps an unusual number of recognizedcomplications. So the Board might wish an opportunity to track this physician, but on anyindividual case may not really be able to find unprofessional conduct because after all itis a recognized hazard of the procedure. In a situation like that could the Board issue anAdvisory Letter without finding unprofessional conduct?

Ms. Boucek : Let me put it this way. Each case we have to decide obviously on its facts.My answer to you would be if you look at the statute and the definition of an AdvisoryLetter, there are three parts to the definition. One part talks about a violation. The others

just talk about conduct. An argument can be made that because only one refers to anactual violation that the other two parts of the definition do not necessarily require thatyou find a statutory violation. That argument can be made. Im not advocating that in any

particular case, but that is the way the statute is read .

Ms. Boucek : So if the Board does find unprofessional conduct the Board may issue anon-disciplinary action. Like I said, that can be an Advisory Letter or a CME order. Theycan impose limited disciplinary sanctions and those are specified. Then finally the Boardcan conclude a hearing and actually decide the conduct was more serious than theyactually realized, and Board may want to recommend something such as revocation orsuspension for more than one year. They can then refer it to a Formal Hearing. That hasnot happened in my experience, but I know it can happen.


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There also have been cases I understand in the past where a matter has become socomplicated... that the Board decides they arent adequately prepared to handle it in ashorter process too that they will decide that this should be referred to Formal Hearingfor a lengthier process.

Male : So even if the physician would like a Formal Interview with our peers, the Boarditself can send it to Formal Hearing?

Ms. Boucek : If the Board believes it is not going to be able to fairly adjudicate the case.

Female : Going back to the questioning. After the physician has made their openingstatement and then questioning starts by the lead Board member, just for informationmaybe for the newer Board members too, what information should be at our disposal?Just the information thats b een given on the disk? Or is there any recommendation,comments about people maybe asking their friend who is a neurologist or something aquestion. Should we really confine what we know to the record in front of us?

Ms. Boucek : Thats a very good questio n. Yes, I would recommend you do that. Nowthere are occasions where you may be aware of a particularly relative source document,and I would recommend this only if it is a published document that can be brought in tobe shared with other Board members and with the physician so they have an opportunityto see that. That is possible. It has to be shared. It has to be something like that.

Now that is a different thing from saying you can tbring your own experience as aphysician to your deliberation. But I dont mean to imply that you can make a subjectivedecision like, I dont like this because I dont do this. But say you have experienced thefact that electronic medical records will produce certain information regardless, justbecause you hit the button, and whats going to come out isntreally under your control.You can bring that kind of experience to the table.

Male: So then do I detect a difference in the way we can approach this if we are the leadoff interviewer? [We can use] something we feel is part of our basic set of knowledgebecause its pretty much within our own specialty, versus [something that isnt]? Forinstance there were times before Dr. Schneider came on board that I had to present OBcases. I knew nothing about fetal monitoring and tracing and what they were talkingabout. It was necessary for me to educate myself on that whole process.

Your predecessor instructed me that if I have to go to the literature, to the text, it wasthen my obligation to disseminate that information not only to all the members of theBoard, but also to the licensee and their counsel because I didnt have that as part of mymindset knowledge. So theres a difference then because what we know because Im a

surgeon and what we might have to investigate an d discover because were facing acase that is not particularly in our own specialty. Do you still make that distinction? Isthat obligation still there?

Ms. Boucek : Right. I agree with that statement. If you do have some outside source ofmaterial that is relevant you do need to produce it for other members of the Board andthe licensee and give that to them so that they have an opportunity to review it and offerarguments either in support or against it. Which means you have to be prepared well inadvance for the Formal Interview.


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[ED. While a Board member must provide documentation to the Board for any opinion orinformation based on reviewing the literature, any statement he makes based on whathe knows in his own specialty is taken on faith, it app ears.]

Dr. Schneider : But can we ask questions on anything in the material that was given tous, or just whats in the SIRC report?

Ms. Boucek : Oh no. The SIRC report is a recommendation. Thats all it is. It providesa nice summary for everyone kind of starting out, but it is simply a recommendation .But the one important thing it does is to serve as a notice of the statutory violation. Sothe statue may be Q or E or R, or violation of Board Order; youre locked in by thoseparticular statutes.

Like I said, with standards of care and deviations, you have a Q violation stated, and youmay be able to formulate different standards of care and deviations based on the recordbefore you. But they need to be noticed that in general you are going to be looking atquality of care .

Male : We did have an issue yesterday with a physician who presented a procedure thathe did that incredibly surprised us. He presented it as usual and customary practice . When something like that comes up that we say, gosh, we have never experiencedanything like that and you present it as a customary practice. His practice was sospecialized that none of us had a chance to be exposed to it. How do we investigatethat?

Ms. Boucek : Part of the investigative process is to give the doctor a number ofopportunities to respond to the outside medical consultants report. And the Board triesto find someone in the same specialty, and they try to get as close to the subspecialty asthey can in those cases. They will and we are seeing this with more frequency send

cases back and find another consultant if we find out the first is not adequately versed inthat specialty.

So the physician [has a few opportunities to make that argument about the consultant.]As you know, as youve seen some of the files, some of the attorneys will send in thingsright up to the last minute. I mean they will keep sending in expert opinions and thingslike that and you have an opportunity to review that. Then at that point that is the recordbefore you.

They can discuss it, and [if they have no other evidence and this is the first time you arehearing this,] you then as the triers of fact judge their credibility and once again you bringyour own whatever experience you have that you think is relevant to it. But you can look

at the totality of the circumstances, and at the reports that have already been issued.

You might want to look at the fact that this information was not raised until the day of thehearing or the interview, because if it was so customary why wasnt it mentioned earlier on in the process? You can take into consideration all of those factors to determinewhether you want to accept that doctors position that this is in fact customary procedurein their specialty. Does that help?


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Ms. Boucek : Here is the definition of the Advisory Letter: 1. Insufficient evidence tosupport disciplinary action but conduct may result in future discipline if it continues. Soyou can see it doesnt talk about a violation there. It talks about conduct and it talksabout insufficient evidence to support discipline.

2. Minor or technical violation that does not warrant discipline. 3. Mitigation throughrehabilitation or remediation, but if conduct continues it may result in future discipline. Sothe third one, one could argue, implies that there was unprofessional conduct, but therehave been subsequent steps that have kind of mitigated it so that now, if you look at thedoctors current practice , you dont believe they are continuing that practice andtherefore what theyre currently doing would not rise to the discipline.

I do want to make it clear that I am giving you a reading of the statute that istheoretically, and Im not saying that is how I would advise you because that will be donein executive session, on a particular case....

Then we have CME here, which is an appealable agency action that is authorized underthe statute . If it comes from Formal Interview, the appeal will go to Superior Court. Ifits just ordered as SIRC recommendation for CME and th e Board just considers that inits meeting and then decides to issue an order for CME, it will go to the Office ofAdministrative Hearings.

If youve done a Formal Interview , theyve had hearing. But they do have the right toappeal to the Superior Court at that point if they believe there were problems with theinterview process.

Here are the limited disciplinary sanctions that the Board can impose after FormalInterview. The letter of reprimand, or decree of censure. T heres no real distinction in the statute as to what these mean. I think traditionally the Board has kind of taken a stepapproach in the first time there is a discipline there is a letter of reprimand, then decree

of censure is technically considered more serious than the letter of reprimand. Itsconsidered, and I say this in a very informal way, but this is not policy, Ive heard it saidthat with a decree of censure you certainly have to be concerned about the next step theBoard might take, if you violate the standard, especially in the same way that you didwhen you got the decree of censure. In the decree of censure the statute says that theBoard can include restitution of fees to the patient. Then there is a letter of reprimandwith probation. It may include suspension for less than 12 months. It can have a practicerestriction. It can require the physician to complete a rehabilitation training orassessment program at the physicians expense. Then civil penalties can also beimposed. You can do any combination of these. So you can have a letter of reprimandwith probation and a civil penalty.

Dr. Schneider : Ive noticed we often get cases referred to us from other states and oftenother states impose civil penalties and it seems we rarely do. Is there an explanation forthat or is that just the current Board policy?

Ms. Boucek : Yeah, that actually is. I mean you can do it . Just because it just hasntbeen done it doesnt come to mind sometimes when SIRC is making their recommendations. But there are some cases especially where if you believe a monetarypenalty might have a beneficial effect, say on a doctors performance. For example, Iveseen them imposed before in medical records cases. If a doctor is refusing to turn over


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medical records that is one where a monetary penalty might cause the doctor to thinkabout whether this practice should continue.

Dr. Schneider : If theres a civil penalty, where does that money go to? Does it go to theBoard?

Ms. Boucek : The general fund, the state general fund . You would be helping thestates budget crisis. [Laughter]

Male : Are the so-called restitution of fees to a patient just the billable fees that werecharged to the patient?

Ms. Boucek : Yeah, it would likely be out of pocket for the patient. So in many casesthats why you dont see restitution a lot because the insurance has paid for most of theprocedure so its not considered usually something that is a remedy.

Male : .So if the patient paid $100 for the visit, is the doctor supposed to pay thepatient back $100?

Ms. Boucek : Right. These are not punitive damages. So you cannot use it in a sense asa penalty. The [purpose] is to prevent unjust enrichment by the doctor.

Ive already said if the Board believes the physicians conduct may warrant suspensionof greater than one year revocation, the Board must refer the matter to Formal Hearing.So when youre doing your deliberation and your questioning its important to make arecord. The appellate judges only have a transcript and the medical records.

In a case that was appealed, there was a nurses note that said only that she updatedthe doctor on the status of the patient . When youre in the Formal Interview and yousee the witness and you hear the testimony, you see that note and also what the doctor

did afterwards, [which indicated that he must have known of the patients deterioratingstatus.] The reviewing judge, however, who didn t get to hear the testimony or see thewitness [or understand what happens in practice] did not accept the fact that updatingof status mean t that the nurse informed the doctor of the patients deterioratingcondition. The judge will not infer anything. It has to be in black and white in the record.

I have learned from that opinion as well because I realized the one thing I have to do iskeep that in mind all the time in advising you so you complete the record and makeexplicit statements on the record and in your questioning and in your deliberations thatwill explain to any outsider who was not present why it is youre arriving at theconclusion you did and why you made the assumptions you did. It really has to bespelled out in black and white and not just assumed for the record because all they do

have is that written record.

Anyway, and then the second part is when making motions you need to make sure allthe Board members understand and agree on the factual basis for the motions thateveryones in agreement. The Board is usually very good on that procedure. Doesanybody have any questions about?

If the physician disagrees with the findings of fact, conclusions of law, and order theycan file a motion for a hearing or review. They actually have to file it if they want to


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appeal it further; i ts called exhausting your administrative remedies . If this motion isdenied the physician can file a judicial review action which is an appeal to the SuperiorCourt. Its generally one judge thats assigned to be the superior court judge to hear theappeals of administrative agency decisions. That judge will be on a rotation for a whileand then it will shift. Right now I think its Judge McClellan .

My role is to write up the dry findings of fact and conclusion, based on the record. Onething Board staff is doing now which I think is very helpful is to send out a draft copy ofthat order to legal counsel for the physician so they can review it. If they have problems,they can make suggestions supported by the record. Of course I am not justregurgitating verbatim the transcript.

So I put in what I find are material findings of fact, but if the legal counsel has somesuggestions and its supported by the record I will put them in there. There are generallyfor the benefit of their client, but if it is supported I will put it in there. That doesnt changethe conclusions. They were in the record. If I m doing the order youve obviously decidedyou still want to impose discipline.

The interesting thing about that though is I think a lot of times I find that physicians often just want to make sure their side of the story is in there. They may accept the discipline,but they want to make sure their side of the story is in the document and set out.

Sometimes I will say they testified as to this , which is not to say that you found that asa finding of fact, but I will sometimes put in things like that to show they did make thatstatement on the record. Obviously the conclusion in the end is decided, to imposediscipline.

[Break]

Ms. Boucek : The Formal Interview is an extra option for the doctors. But revocations or

suspensions of more than one year must be referred the Office of AdministrativeHearings. Any summary actions must have a hearing within 60 days.

Any license denial appeals go first to the Office of Administrative Hearings and then thatcomes to the Board for review. Than any non-disciplinary CME order that the Boardissues without a Formal Interview is appealed to the Office of Administrative Hearings.

Dr. Schneider : I have some information, I guess from the Cliff s Notes of Boardpresentation, possibly from years past. One of the reasons it lists a case needing to bereferred to a Formal Hearing is if you think its going to take over one hour. We hadseveral cases that have gone well past that. Can you give us an idea of whats anappropriate amount of time that Dr. Petelin [laughter] may question a physician?

Ms. Boucek : Im thinking its a far better rule to not set any artificial time limits. Havesome sense that youve got an agenda, but you want to make sure you are able to getall the questions that you have answered . I think it would be a problem for the Boardto ever setup strict guidelines on how long the process might take.

Female: What is the cost for a Formal Hearing?


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Ms. Boucek : That can vary, depending on how long it goes . [perhaps $2,000 to$12,000].

Female: What if the physician goes to the Formal Hearing and wins their case. Whopays the cost?

Ms. Boucek: Theyre not necessarily awarded attorneys fees, but only the cost of theAdministrative Hearing.

Female : But if they call a block of witnesses and consultants that could run the physicianmore than a regular trial.

Ms. Boucek : It could, but that would be their costs, yes. In most cases, yes. Whathappens is once a matter is referred for Formal Hearing the case materials are sent tothe Attorney Generals office where the materials are reviewed. The litigator will consultwith Board staff if additional investigation is needed. They draft a complaint notice ofhearing. They prepare the exhibits. Then the litigator may attempt to settle the case priorto scheduled hearing. Now theres already been, usually by this time theres alreadybeen one consent decree sent to the doctor thats been turned down. But as we getcloser to the possible hearing date its often people are willing to maybe negotiate a littlemore at that point.

Male : Do you negotiate with the doctors attorney or do you negotiate with the doctor?

Ms. Boucek : It depends. If theyre represented by counsel you have to do it throughcounsel. But if the doctor is unrepresented then we might speak to the doctor directly.

Male: Can you briefly explain, Ms. Boucek, who the litigator is in these cases? Is ityourself? Is it somebody on the Board?

Ms. Boucek : Right now, Ann [??] is our main litigator. We do have another one. Itssomeone from our licensing and enforcement section at the AG office who handles thecase. I kind of coordinate with them as the legal advisor because Ive often been presentin a SIRC meeting for example where the recommendations were made. I dontparticipate in the argument. Im present there so Im somewhat familiar with the facts of the case.

But generally its handed over to the litigator and becomes really the litigators case. They are pretty much solely responsible for it. They can contact Board staff if they needanything but it moves forward along. The litigator handles the any correspondence orinteraction with the doctor or doctors counsel.

Male : It could be an outside litigator, is that correct? Or any litigator at the AGs office?

Ms. Boucek : Right. Or on occasion we have hired outside counsel, but it is donethrough the Attorney Generals office.

Just briefly the Office of Administrative Hearings. As I said its an independent stateagency for administrative hearings. The administrative law judges come from all differentbackgrounds. They hear a variety of cases. They may hear a state procurement caseone day or a real estate licensee case . They hear testimony. They review exhibits. As


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I said I think before the rules of evidence are relaxed in the administrative process so alot of the technical rules that you may have either encountered or seen in trial dramas onTV or something, hearsay and all of that, they are not necessarily applicable in anadministrative hearing.

It is a much more informal process. Generally everyone is sitting around a table. Thewitnesses are sworn, and it is recorded.

Male: How are the cases assigned?

Ms. Boucek : It is decided by the Office of Administrative Hearings. That is not to say wedont have any part in that decision whatsoev er. There are some judges that we tend toencounter more frequently than others. We do get a variety. It isnt always the same

judge.

After the record is closed, the ALJ has 20 days to write an opinion. So its meant to bean expedited process and it is. They provide the ALJ will provide the agency with awritten findings of fact conclusions of law and recommended order. The Board has theburden of proof by preponderance of the evidence except in license denials and non-disciplinary CME orders because th ose are what I refer to as appealable agencyactions so under the statutes the licensee has the burden of proof.

Normally when you have the burden of proof you have to go first and present your case.That actually doesnt happen at the Office of Admini strative hearings very often.Generally we still have to go first. But technically when the judge is weighing theevidence and facts the burden of proof is to be on the licensee or potential licensee.

Male : Would you briefly just explain what is preponderance of evidence?

Boucek : People often describe it as 51% basically. In other words its just, the balance

can be a little bit beyond a balance. Its not like beyond a reasonable doubt in whichcase you pretty much have to erase any doubts . Ive heard peo ple try to formulas likeclear and convincing evidence is 75% and beyond a reasonable doubt is in the high90s or something like that. Its kind of a hard way to do it. It does mean though thatwhen the reviewing court looks at it they look to see if there is substantial evidence tosupport the findings.

Male : Would you straighten me out? I thought the preponderance of evidence was notso much the majority, but as it was a reasonable person presenting the same facts andpresenting the same material would come to that same conclusion. Not necessarily themajority of people, but the reasonable person. The preponderance of evidence does notnecessarily mean the greater number of people voting one way. Am I wrong in the way I

think of that?

Ms. Boucek : I forget exactly how the standard reads. I know with standard youre talkingabout that I do think you have to, you know, you kind of have to think about the scales of

justice and basically the scales really need to be such that they are going in favor offinding against, so there does have to be a certain sense in which the weight of theevidence, it is such that there is more evidence tending to prove that the licensee issubject to discipline.


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Male : If someone had five answers and they said something one way, and the other onlyhad three that said it the other way, then the five would be the preponderance, but thatsnot always the case because the evidence may reflect that a reasonable person whenlooking at that evidence would say this way. So preponderance could really bequantitatively in the minority.

Ms. Boucek : Let me back up on this. What that is talking about when I talk aboutpreponderance of the evidence, what you first do is you hear the evidence. You decidewhat is credible and what weight you re going to give to the particular evidence. So onceyou categorize that. In other words you may have five experts over here and only threehere, but you decide you like the three the three here are more credible for variousreasons because they are in the same specialty, just for various reasons, and the fiveyou dont find credible maybe arent. So it isnt that you have quantitatively moredocuments. Its when you look at it, filtered through it , and decided the weight of theevidence presented by one side is that you find credible is greater than the weight yougive to the other side. Thats how it goes.

So after the case goes through the formal hearing at the Office of AdministrativeHearings, there is a final Board action. One of the things the Board members mustreview the Office of Administrative record and we require Board members acknowledgethat they have indeed reviewed that record before making a decision. Then the Boardhas the option to accept, reject or modify the ALJs recommendation.

The legal standards for any changes, you must write the hearing record to modify it. Youmay use once again the Boards knowledge and experience for standard of care. Forcertain facts, for credibility for example, the ALJs determination is entitled to great erweight, but there is a case called Whitman [??] in which the Appellate Court decided theBoard may accept or reject or even modify credibility findings after review and citation tothe record.

So you want to be very, very careful though when you do that. In credibilitydeterminations, the courts are going to prefer the person that was actually there to judgethe credibility of the witnesses making that determination. However, as I said, they willpermit it if you have a really well defined basis for [differing with the ALJ].

Male: What about the other way around? L ets say that we have a Formal Interviewgoing on, and we determine credibility of the physician as XYZ, does the judge look atour evaluation of the credibility as documented in record as having more weight than himor her listening to that witness at the time?

Ms. Boucek : Im not sure that the Formal Interview is even considered by the ALJ [confers with litigator]. I think its perceived at that point that they dont look at what the

Board has done.

Like I said, the ALJs order is a recommendation but the Boards order is the finaldecision .

Male : How much time does the process take?

Ms. Boucek: That can vary quite a bit. We have been trying really to speed up thatprocess recently. A lot will depend on what happens in the interim. We had set a goal of


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trying to get things to hearing within 90 days but then that was our goal when we firsthad I think two or three litigators and now were down to one.

I think it also depends on if we do summary suspensions as I said, summarysuspensions have to be done within 60 days, so you have to drop everything basicallyand do that. So that puts off the cases that are referred for disciplinary, routine casesreferred for disciplinary action. And we ll triage those cases depending on for example if the doctor is not practicing then we will perhaps triage that case for later than one who iscontinuing to practice and may have some issues that need addressed moreimmediately

Male : 90 days?

Ms. Boucek : We try. That is our goal, but its not set in stone. Thats not a statutoryrequirement. Its only on the appealable agency actions and on the summarysuspensions that we have the time requirements. I ts kind of ironic, unfortunately anappeal of a CME order has to take precedence over a revocation hearing because of thestatutory requirements.

Male : When a physician gets suspended from a hospital, is it an obligation of the chief ofstaff to report that to the Board?

Male: Yes.

Male : How long does the Board have to act on that?

Ms. Boucek : There are no statutory time limits on that. So the Board just when they getthat revocation they will look at that. Now if it is something they see does require Imean if they have been suspended I mean they will kick into action immediately and thatis often when you will see some of these summary suspension actions take place. That

can be a matter of days after seeing the complaint, or within 24 hours of receiving thatcomplaint, or within hours I shouldnt even say 24, they will be setting up a meeting ofthe Board to consider a summary.

What they try to do what the Board staff tries to do is give practice restriction a placeimmediately so that then they know if there is harm to the public.

[Apparently, Board staff looks at matters and decides whether they need to go to Boardmembers urgently. T hey can make a decision and it may not come to the Board atall. Several people talking at once Some things involving hospitals are personnelissues more than quality of care issues.]

[It is unprofessional conduct for a hospital chief of staff not to notify the Board of asuspension. What if the chief of staff is a D.O.? The AMB does not have jurisdiction overhim.]

[Discussion of the backlog of cases. Problems involve protecting the public and affordingthe physician due process rights.]


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[Discussion about notifying other hospitals of suspensions and of later dismissals.]

[Several talking at once.]

Male : How does Arizonas due process procedure for physici ans, do you know, compareto due processes for other state medical Boards? First as to other professional Boards inthis state, and then how do we compare due process rates to that say of Californiasstate medical Board or other medical Boards?

Ms. Boucek : Single head agencies have only one process, referral to the Office ofAdministrative Hearings . Theres no open meeting process in that case. So theres a lotmore openness [with the AMB] because youre subject to the open meeting laws .

Based on talking to private practitioners who have practiced before other healthcareBoards, they often sing the praises of the medical Board and say it is a very professionalBoard and they appreciate the process that is followed here.

As far as other states, I only have anecdotal evidence based on conversations with otherBoard attorneys. I recently had worked in a state which shall remain nameless in whichthey named how they do a number of things with doctors at the investigative stage. Theyimpose certain things, in which really raised my eyebrows because I dont think its intheir statute. They talked about how they will impose certain requirements through theinvestigation process but then it doesnt become an official disciplinary order at theBoard level that has to be reported to the National Practitioner Data Bank. I was kind ofsurprised at that. They asked if we had anything similar in place and I said, No. Icertainly would never allow the Board I think has done an excellent job of really tryingto stick closely to statute.

I think any mistake the Board has made in the past, for example we saw the Webb case.If you look at the statute, the Board was actually in compliance with their statute. So theywere trying to follow the statute. Its just when th e court looked at it they realized whenyou look at the principles of due process and the case law that developed from that, theydetermined the process of formal interview wasnt sufficient so then once we got thatruling we started the waiver process.

Male : [Are the rules for the osteopathic Board similar to ours?]

Ms. Boucek : There is a difference. They do investigational interviews. I ts almost like theBoard acts like SIRC in many ways.... That can be unwieldy to try to do an investigationthrough a large Board in an open meeting.

[Some Q & A about PAs,(physician assistants), who are covered under a separatestatute.]

Comment from Executive Director Lisa Wynn :

I just wanted to thank Jennifer and Ann [litigator] for the great work theyve done for us.Just to report as far as the due process, Dr. Wolf and I had the opportunity to meet withSteve Nash of the Pima County Medical Society and a number of the members of the


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public. Amanda [Diehl] and I also met with Sen. Paula Aboud and some defenseattorneys for the Tucson area, so we try to create dialogue.

But through those dialogues we have made some improvements I want to just kind ofput them [before you]. Th eyre small, but were open to improvement. One of them is thatpreviously when a complainant asked for anonymity we did not give that full record to thephysician respondent; we would just summarize the complaint, to help preserve theanonymity of the complainant. Sometimes the complainant was a patient or a familymember of a patient or another professional.

After having some dialogue about that and wanting to give physicians as much dueprocess as possible, around April of this year we changed that process and now providea redacted copy of the actual complaint. Its already very difficult to preserve theanonymity of a complainant when theres so much specific information about treatmentor on a patient, but we have made that change. We havent gotten any feedback yet, butwere hopeful that will help physicians get the full picture.

Also weve created in our letter, if you noticed Jennifer talked about the notice to thephysician that there has been a recommendation for discipline, there is an opportunity torequest a Formal Interview or request a hearing. We now create an invitation to them tomeet with the staff prior to the interview to allow for additional dialogue that hasntoccurred through the exchange of public record. Theyve already submitted a responseand possible supplemental response, but [ if theres any dialogue that needs to occur,this would be an opportunity]. We did that right around April as well .

In one case it was more of a clinical nature so Dr. Wolf attended. The next one isscheduled actually for tomorrow, more of a conduct type of issue. If it were more of alegal issue I would ask Ann to attend, but its just one more opportunity for dialogue andwe can provide guidance to assist the physician in making a decision on how to moveforward.

Then finally, when a physician is noticed in the very beginning when he gets a copy ofthe complaint and notice we are starting to collect records and open an investigation, wealways grant extensions for any reason a physician needs additional time. We keep thattime really short, like within two weeks, just to keep the process moving. But wevealways granted those extensions. We now state right in the letter this is due by, say, the18 th, but i f youd like an extension please let us know

So those are some of the processes that have been put in place. We will continue tomeet members of the public or the medical society

Male : At least I notice on some of the licensee supplemental responses they seem to

have the outside medical consultant (OMC) recommendation specifically addressed orcomment on oversights in those. Do they have a kind of list of statutory violations ofdeviations at that time from SIRC so then they can use the SIRC recommendation andthe OMCs opinion together then to respond to that?

Ms. Wynn [?]: They dont have a formal opportunity to respond to SIRC.


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Male : It seems like sometimes the physicians response is kind of off the mark. I justwonder whether they are responding to what they think is the main concern, but seem tomiss the point as to whats really the deviation .

Ms. Wynn : Even though they dont have the SIRC report, they do have the OMCsreport. The report has a style that is supposed to set forth the standards of deviation andthen a summary....

Male : So you usually find that the SIRC report closely follows the OMC suggestion ofdeviations or standard of care.

Ms. Wynn : The SIRC tries not to deviate too much from the OMC....

.

Male : [Lets look at anonymity from the complainants side.] Do we have a form forthem, theres a lot of reasons, but the majority of reasons for anonymity are ve rylegitimate. Do you think that they want anonymity because of fear they would be outted?

Ms. Wynn : I can tell you the vast majority of complainants do not request anonymity. Ifthey request anonymity the investigator who is initially assigned over the investigationwill reach out and have a conversation with them....

Male : In the past you had summarized it so theres not enough information for anyone toreally identify who that person is. Id imagine a few people want true anonymity for realreasons. No w if we initiate the due process theres no way to continue in the same way.Im just wondering if the process we have to make sure we dont that we hear fromcomplainants who, Oh man, I wouldnt be submitting this if youre going to take all Iwrite down here and expose me to .

Ms. Wynn : One of the things we do when we redact that is to read through thecomplaint and whatever it is [thats worrisome to the complainant] we try to take thatinformation out and just leave the facts of the case.

Occasionally, very rarely, but occasionally we get a truly anonymous complaint wherethe identity of the complainant is not even known to Board staff. Can we still investigatethat? Its harder because we cant contact the person for certain information, but wehave on occasion acted on a truly anonymous complaint. So we get a complaint withoutcontact information we still have to legally investigate it if theres enough information bywhich to conduct the investigation

Affiliated Monitors: Mr. Vincent DiCianni

Thank you very much for inviting me. One of the things that I see as I go around thecountry we work with a lot of regulatory Boards as I mention in my presentation is thefact that theres either a misconception or no sense at all of what you folks do, thededication you put in of your time. I really appreciate it in the services that we perform.But I see it in the public. They dont understand what a Board does. So I think thededication, time, and commitment you put in is woefully underappreciated by the public. Ireally do enjoy working with Lisa, Kathleen, and Todd and staff as we have over the pastcouple of years.


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Im an attorney by profession. I started out in the Attorney Generals office inMassachusetts in the early 80s and had many cases involv ing practitioners who workedfor the state or state agents who were getting sued for malpractice. As some of you mayknow, when youre suing the state and its a malpractice case it often turns into a civilrights case so that you can get more damages and attorneys fees. So we ended upgetting these cases that would go on forever. I had a lot of suicide cases, misdiagnosiscases from state institutions around the state of Massachusetts.

I worked out of the Attorney Generals office and went into private practice where, somewould say I went to the dark side, and I represented practitioners before Boards and inmalpractice defense work for a number of years. In 1996 I had a case before the medicalBoard in Massachusetts. It involved a psychiatrist. Some of you may have heard me tellthe story before. But it was sort of an eye opener for me and started me thinking .

The psychiatrist had a host of allegations against him, boundary violations, over-prescribing, bad records, self-medicating. I mean it was everything you could mention.Nearly suspended, went through a six week hearing before the Office of AdministrativeLaw Appeals in Massachusetts . Long hearing. Recommended decision that thehearing officer said you didnt prove anything to the Board ; he was shaking.

So we went before the Board and helped to get his license back. At that time the Boardsaid to us, my client and I, we want you to have a monitoring mentor and well give youyour license back. We looked around the room and questioned, I had never heard of itbefore.

I said, Well, what does a monitor ing mentor do? Who is the monitor? The Board said tous, Its up to you. Just bring us somebody and theyll be the monitor. So he ended upgetting a friend of his to be the monitor. It didnt work because there was lack ofobjectivity on the monitors part, but I loved the idea. It was something that again I had

not heard of before.

In my defense role it was either a suspension or revocation, if you get to the hearing partof the case its going to be a more severe form of sanction if you dont happen to prevail. So I liked the idea.

In early 2000 I reached out to a number of practitioners that I respected in thecommunity, some were regulators, some were folks who handled professional issuesdealing with either an addiction or some other problems on a professional level. Ireached out to folks who I respected in the medical, legal, and business communitylooking to see if there was something, an entity we could put together to providealternatives, remedial alternatives for licensing Boards, for permanent oversight

agencies where in those instances where the behavior didnt necessarily reach a level of a suspension or revocation, but it wasnt enough to just either be dismissed or just a slapon the wrist if you will, but some kind of remedial program where you could try torehabilitate, help fix deficiencies that the Board had found. And then with somerehabilitation and some monitoring over a period of time the practitioner coulddemonstrate to the Board that he understood the problem and had fixed it.


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We created Affiliated Monitors in 2004. We started working with the MassachusettsChiropractic Board, which was a pretty progressive Board at the time and had beeninundated with all of these personal injury cases, the car accidents where four people inthe car go to one chiropractor, everybody gets the same regiment of treatment, and itshappening again and again and again.

The insurance fraud division in Massachusetts was created as a result. It had this influxof cases to the chiropractic Board where they were just overwhelmed with it. They werelooking for us and we were looking for where we could find our place in the world inproviding these services. We started there.

We started then working with the Massachusetts Medical Board and then we moved toother states, New York, New Jersey, Tennessee. Thats now spread over the time thatwe have been in business. So its a company that provides remedial services. Wevebeen working with your Board for a number of years now on a host of different casesthat Ill talk about in a minute.

So the four services that we provide, just so you get a feel for what we do and how wedo it. We provide monitoring. Monitoring I think has an almost an east-west sort ofdifferentiation in terms of monitoring.

On the east coast monitoring didnt come into being untillate . In fact some Boards arestill living in the dark ages. They still have their regimented sanctions.

But on the west side of the country I have found this out from dealing with the state ofColorado, they had monitors but they have this real cynicism about monitoring becausethe practitioner would bring their buddy to be their monitor and it would be what do youget when the report says all set. Thats what the monitor report looks like. They werevery uncomfortable with the process of monitoring theyd usually get because they hadno faith in the integrity of the monitoring process.

So what we did as a company is to create a process if you will where we use localpractitioners who are experienced, educated, and have peer respect and also integrityobviously, and put a monitoring process in place.

So what we do on our monitoring side of things is we take a Board order or a term ofprobation, the cases come to us in a lot of different ways

On the monitoring side of things we take your order, and thats why youre always goodbecause theres a specificity in there of what the issues are that you want us to address. Thats really import ant to us because we need to give direction to the monitor.

We need an order that says its a boundary case. Do these things. Or its a deficientrecord case, or its a billing flaw case. Whatever the issues are that have been presentedto the Board, the Board has made some type of finding or theres an agreement, givingus that kind of detail really helps us in crafting a custom -ailored monitoring for that case.

Who are the monitors? The monitors are in the local community. Most instances wewill try to find somebody proximate to the doctor. Sometimes thats not that easybecause its a really specialized practice and theres two of them in 150 miles, or they


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hate each other. Sometimes it takes us a little bit longer to find a monitor because it hasto be appropriate.

So what we do with the monitors is were going to go through a background check onthem. Were going to make sure they have nothing that is going to embarrass the Board or Affiliated Monitors. When weve identified that person or persons , sometimes I need ateam of people depending on the case, when weve done that we do the backgroundcheck and then we submit their name for approval to the Board.

Once that approval is given then we go through a training process with the monitors. Weactually train them on how to be a monitor. Thats very important. I think thats one of thethings that distinguishes Affiliated is the people that we are working with as monitors,they have a monitor and they know what were looking for.

So what we do is we create a checklist for them. Its more of a roadmap if you will thatsays to them, This is what the court order said. These are the things we need toaddress. So when they go into an office if youre doing a chart review is theyre lookingat very specific things that we ask. It might be filing of the chart. It might be oneparticular element of the charting that you found in you

minutes of arizona medical board public meeting 10-14-2010

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