State Discipline of Physicians: Assessing State Medical Boards thruogh Case Studies

Randall R. Bovbjerg and Pablo Aliaga
The Urban Institute, Health Policy Center

Josephine Gittler
University of Iowa, College of Law

February 2006

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This report was prepared under contract #HHS-100-03-0011 between HHS’s ASPE/DALTCP and the Urban Institute. For additional information about this subject, you can visit the DALTCP home page at http://aspe.hhs.gov/_/office_specific/daltcp.cfm or contact the ASPE Project Officer, Linda Bergofsky, at HHS/ASPE/DALTCP, Room 424E, H.H. Humphrey Building, 200 Independence Avenue, S.W., Washington, D.C. 20201. Her e-mail address is: Linda.Bergofsky@hhs.gov.

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State Medical Boards that license and discipline physicians play an important and insufficiently studied role in medical quality assurance. This project gathered information on Boards’ structures, processes for disciplining physicians, especially those relevant to improving medical quality, and methods of self-assessment. The project also identified practices that state Medical Board staff or other experts believe effective or potentially effective in improving their processes or impacts on quality.

Data collection. Issues of interest were framed by the project statement of work and elaborated through literature review, national expert discussions, input from a technical advisory group, and production of a concept paper (Bovbjerg & Stockdale 2004). Information on Board structure and operations came from detailed case study interactions in six states during 2004-05. Descriptive analysis of cross-state structural and performance data was possible based on case study results and national data on Boards for 2003, the most recent available, from the Federation of State Medical Boards, and current licensure requirements came from the compilation of the American Medical Association.

Case studies were conducted in six states: California, Iowa, Massachusetts, Ohio, Virginia, and Washington. They were chosen to include innovations of interest and for reputations of good administration, as well as for some diversity in size and geographic location. Available documentation on Boards was obtained; and open-ended sessions were conducted with physician and non-physician Board members, executive directors and other managers, staff, and outside observers or participants in Board activities. The project focused on current experience, defined as about the last five years, but key informants also referred to prior history.

Board Structure and Resources. Literature suggests that the following factors influence disciplinary performance.

• Some Boards are part of a larger “umbrella” state agency while others operate more independently.
• Board membership always has a physician majority, but nearly half may be public members.
• Board powers and operations are influenced by specific state enabling legislation, the state’s law of administrative procedure, and judicial rulings.
• Boards’ spending per thousand physicians ranges widely, affected by licensure fee levels and state budgetary policies. All six study Boards were in the middle half of budgetary resources nationally in 2003, but the highest state studied still had almost double the funding of the lowest.

Complaint Resolution. Discipline of physicians beyond initial licensure is the Boards’ main activity. Discipline is largely complaint-driven, and Boards proactively begin few cases.

• Some 60-90% of complaints came from the public in the study states, almost entirely from patients and families. Boards also receive input from other government agencies, hospitals, and malpractice insurers.
• Many complaints at least in part involve allegations of poor quality care--a quarter to half of them, according to executive directors.
• The volume of complaints per thousand physicians varies considerably by state, in part because of differing standards of what constitutes a complaint.

Complaint resolution proceeds through four main stages: intake, investigation, pre-hearing preparations, and hearing. Intake resolves about 14% of cases before investigation, largely because they are minor or complain about unregulated behavior, such as physicians’ charges. Investigation closes almost two-thirds of cases, typically because there is too little evidence to support formal charges but sometimes with an informal notice of concern or similar communication with the respondent physician. Pre-hearing processes resolve almost 20% of cases, either dropping them after further consideration by staff and prosecuting attorneys or settling them by agreement with the respondent. Only about 1.5% of complaints reach formal hearing.

A final level of process is court appeal after final Board decision. Physicians whose hearing imposed strong sanctions not infrequently appeal, according to case study informants, but appeals constitute a very small share of total disciplinary cases because hearings are so uncommon. In all, almost 5% of complaints result in some level of sanction, which may be negotiated before hearing or imposed after one. Most Boards have authority to take a full range of actions to resolve a complaint. Actions may be informal, such as a confidential letter of education or censure. The most “prejudicial” formal actions are loss or restriction of license. Other prejudicial actions include fines and reprimands. Some actions are classified as non-prejudicial, often unrelated to sanctions, such as reinstatement of license. Most cases are closed without any action.

Measuring Disciplinary Performance. A key question posed in all case study sites was what outputs Board managers intended to achieve and how they measured them. Only two performance measures were noted in all sites. The first was the number of disciplinary sanctions imposed. The second was timeliness of complaint resolution--and avoidance of a lengthy backlog of open cases.

• The annual rate of prejudicial actions per thousand practicing physicians is not high. Nationally, the average is just under six actions per thousand physicians per year, just under seven in the study states, with substantial variation across states.
• The speed of complaint resolution also varies greatly. For instance, in the typical state only about 10% of cases take more than 360 days to resolve. However, such slow closures constituted 60% or more of closures for about one-fifth of reporting Boards nationally.
• All the study states reported having to address significant backlogs of complaints in some recent period.

Impediments to Disciplinary Performance in Practice. Board members and managers described facing different challenges at different stages of the disciplinary process. At intake, a key issue is conducting reliable triage to set priorities for investigation. During investigation, Board staff must overcome barriers to obtaining medical records from physicians, their own understaffing, and problems discerning whether quality cases were serious enough to receive high priority. Difficulties obtaining sufficient medical and legal expertise were especially problematic. They apply both at screening stages, as Board staff must prioritize investigations or decide whether to charge and prosecute a physician and in preparing for and conducting formal testimony at hearing.

High costs were endemic at all stages, particularly for quality-based cases--starting with the need for early medical screening, more in preparation for hearing, and most of all in fully contested hearings. Where possible, Boards often resolve quality-related concerns against a practitioner by finding an easier-to-prove ground, such as failure to report required information in renewing his or her license. Boards do not track costs by function, but executive directors could provide an approximation of their costs for a recent fully contested quality case that had necessitated expert testimony. Three of the six said such a case had cost $100,000. Costs are high for going to hearing rather than settling because revoking a license requires proof through expert testimony of a continuing pattern of negligence or lack of competence. Board members and managers described wrestling with determinations of just how many instances of negligence are needed to demonstrate incompetence. They confirmed that are no agreed upon, objective standards of competence on which they can rely.

Systemic problems of fragmentation of responsibilities and discontinuities in the disciplinary process were also described. There are typically multiple “hand offs” among staff as a case progresses through the process, and cases may be sent back for additional investigation once an attorney begins final preparation for hearing.

Board staff also recognized that relying on complaints to find problem physicians is a reactive process with a very narrow focus that generates a large volume of investigation to find a small number of actionable cases, especially starting with complaints from the general public. They expressed desire in better input from expert sources as well as alternatives to conventional discipline. All but one manager complained about the available information technology, although two reported that their states had at least embarked upon major upgrades.

Finally, some noted that decisions on sanctions must weigh not only quality concerns but also competing considerations. For example, whether taking disciplinary action in a marginally troublesome case would curtail physician access in a rural area or reduce patient access to desired pain medication or alternative therapy.

Effective Practices for Improving Complaint-Driven Discipline. Another focus of the project was identifying effective or potentially effective ways to improve Boards’ quality-related performance. Most input from Board managers involved methods they saw as improvements to conventional discipline, including:

• more effective intake and triage of complaints;
• selective enhancements to staff capacity, especially for investigation and investigative oversight (the stage that resolves most cases);
• improved access to medical expertise throughout the disciplinary process;
• monitoring of throughput of cases in investigation; and
• more modern information technology (IT) including more sophisticated data entry, retrieval, and analysis.

IT was prized partly for its ability to save on costs of paperwork and data sharing and retrieval. For example, managers reported coping with funding shortfalls in part by automating licensure functions and shifting resources to discipline. Even more, better IT and data systems were believed to enable managers to learn much more about their processes and what people and practices work most effectively; over time better tracking capabilities were expected to promote better measures to track. Managers wanted to improve their use of whatever level of funding and staff they have to work with, improving triage and efficiency of throughput in investigation, for example. Experience in two states suggests that better analysis of data on accomplishments and shortfalls can help persuade legislatures to grant more funding as well as Board-desired legal changes.

Two other potentially effective practices sought to enhance medical expertise for conventional discipline:

• One state reported great success in contracting out medical screening reviews to a national peer review organization. Sources there reported not only expanded access to expertise but also improved speed of review.
• Managers in all but the larger states reported interest in regional pooling of experts, as the available in-state expert pool was sometimes very small, especially for subspecialties like pediatric neurology.

Other effective practices were also suggested as improving the efficiency of conventional discipline through cross-cutting interventions:

• reducing handoffs by creating unified teams of investigators, Board managers, and prosecuting attorneys--especially for high-profile cases almost certain to go to hearing;
• more centralization of case oversight to reduce fragmentation of responsibility;
• standardization of sanctions to improve consistency and, by extension, deterrent effect; and
• more active leadership.

Increased budgets were perceived to be necessary to effectuate many of the above noted improvements. All managers believed that improvements in budgetary or IT resources would improve their output. There were suggestive indications that this is so from the increase in cases closed in Virginia, whose budget was significantly increased during the observation period.

Other Innovations Ancillary to Complaint Resolution. Such practices do not directly affect existing conventional processes of disciplinary complaint resolution but rather complement them.

Several Board managers and outside observers suggested that Boards act through rules of general application to head off whole categories of case-by-case complaints. One state cited the example of prompt development of guidelines for bariatric surgery, relatively new as a high-volume procedure. Another cited a collaboration with the pharmacy board to block physicians from filling prescriptions for controlled substances in the names of family members.

Ohio’s Quality Intervention Program (QIP) is a less formal and faster process that uses two subsidiary panels of volunteer physicians to resolve less serious looking quality cases, typically ones involving a single deficit in a physician’s capabilities. Investigators refer quality cases to QIP that are likely to be remediable with re-education but that still might need to be referred back for conventional discipline and stronger action.

A similar alternative to conventional complaint investigation is referral to one of the regional or national clinical assessment centers (CACs) run by medical schools and others. The centers use a variety of hands-on methods to assess any deficiencies a referred physician might have, and can also prepare a program of re-education at the center and continuing “back home.” California refers many conventionally sanctioned physicians to an in-state center for remediation, but the other states were just beginning to use such centers, mainly earlier in the disciplinary process.

The Massachusetts Board’s Patient Care Assessment (PCA) program operates quite separately from conventional, complaint-based discipline. The Board’s PCA unit reviews and approves hospitals’ own PCA safety plans and monitors their operations through several types of required reports. The goal is to promote facilities’ own efforts and to create safe environments within which physicians can practice, rather than to identify and sanction problem physicians. Managers believe improvements are occurring and also praise the process for quickly uncovering the problems in bariatric surgery noted above, which would have taken far longer to be discovered through conventional complaints.

Another alternative described by case study Board managers and others is to encourage hospitals and other medical institutions to identify physicians with potential quality problems before they hurt patients or generate complaints, referring them to a CAC for evaluation and re-education. A small experiment in several states is attempting to demonstrate the feasibility and utility of this approach; its performance was not part of this case study.

Online physician profiles have been adopted to better inform prospective patients and payers about physician characteristics and thus potentially encourage market responses that promote quality. All the study states make such information available, at varying levels of detail.

Other Innovations. Many Board members and managers wanted to do more for safety than react to complaints. The literature review and case study respondents suggested some other proactive alternatives to complaint-based discipline. These included audits of physician practices, non-disciplinary use of CACs, and efforts to encourage ongoing maintenance of competence. Such approaches not now observable in the field were beyond the scope of this study.

Implications. This case study documented many aspects of Boards’ structure and operations. It also identified practices considered to make discipline more efficient or effective. Other states could learn from the particular practices recommended by managers and others from these six states. A cross-cutting lesson is that organized assessments of Board performance are useful internally and in seeking a grant of more resources and other Board-desired changes from state legislatures.

Limitations. The six case study states are not nationally representative. They were judgmentally selected to help the project observe innovations. The national survey data available provided comparative perspective, but not fully standardized definitions of data elements. Assessment of the impact of innovations also relied heavily on informed judgment, that of knowledgeable managers and other key informants. It is generally agreed to be beyond the current state of the art to assess performance by measuring any direct impact of Board activities on public health or safety.

Next steps. One near-term development for Boards will likely involve making good use of the new capabilities in IT and data management that managers were actively seeking in every case study state. Beyond the hardware and software, performance improvement was also said to call for: (i) a new approach to data entry and maintenance, (ii) enhanced analytical capabilities, and (iii) standards or comparative benchmarks against which to measure performance. Data from the Federation’s member board survey already offers Boards some comparative information, but has some limitations, and demand for improved comparative benchmarking seems likely to grow.

For policy research, the next steps may be to more rigorously study existing state interventions or conduct demonstrations to see how well some of them “travel” to new states. More careful study would be useful for such things as California’s use of clinical assessment centers, Massachusetts’s physician profiling and unusual relationship with hospital safety efforts (the PCA), Ohio’s quality improvement program, and efforts in numerous states to form teams of investigators, managers, and lawyers to streamline the handling of important cases. Non-case study states of course also offer opportunities for study.