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The Board of Registration in Medicine Had Inadequate Oversight Controls, Including Monitoring, Over Physician Health Services.

Audit calls on BORIM to enter into a formal contact with PHS that establishes the services it will deliver, processes for delivering them, quality standards it must meet, and periodic reviews of its performance.

Table of Contents

Overview

The Board of Registration in Medicine (BORIM) had inadequate oversight and monitoring controls over Physician Health Services (PHS), the operator of the Commonwealth’s physician health program (PHP). Although the BORIM board of directors provided a detailed analysis for each doctor’s petition to return to work, often including the requirement that PHS provide additional documentation, BORIM had not exercised adequate oversight over PHS, which is entrusted with monitoring and reporting to BORIM whether physicians who have been found to have practiced while impaired fulfill their probation agreement (PA) requirements and with ensuring that physicians are provided with a fair disposition process (i.e., due process). For example, BORIM does not formally advise physicians that they can appeal its decision to use PHS as the treatment provider. Also, no documentation is provided to physicians notifying them of their right to dispute the choice of a testing facility. Without effective oversight of PHS, BORIM cannot ensure that physicians receive proper treatment for each alleged impairment.

BORIM did not have a contract with PHS that would outline any expected standards, nor could BORIM provide any documentation that it had approved PHS as the Commonwealth’s PHP provider. Additionally, the BORIM board of directors had not developed any specific policies, procedures, or guidelines to ensure that PHS, its vendors, or other providers properly and consistently handled impairment cases. Also, BORIM had not performed any reviews (i.e., audits) of PHS to assess whether PHS properly and consistently handled impairment cases.

Additionally, although some physicians in a program monitored by PHS have appealed to BORIM when they felt that due process was compromised, BORIM did not ensure that PHS had a fair disposition process in place. As the licensing authority for physicians, BORIM is responsible for ensuring that physicians have a fair process for the handling of matters involving PHS. Further, BORIM could not provide documentation of the required monthly meeting between its Physician Health and Compliance (PHC) Unit and PHS to demonstrate that BORIM reviewed the progress of all 27 physicians who had PAs during the audit period.

A lack of adequate oversight and monitoring controls, including a contract, approval, policies, procedures, guidelines, reviews, and documented meetings, could result in doctors practicing while impaired, thus putting patients at risk. In addition, a lack of a fair disposition process for physicians involved with PHS could result in physicians not having access to fair and impartial resolution of allegations of impairment.

Authoritative Guidance

The Committee of Sponsoring Organizations of the Treadway Commission’s document Internal Control—Integrated Framework, which is referred to in the Comptroller of the Commonwealth’s Internal Control Guide, provides guidelines for effective internal controls. BORIM is required to follow guidelines set forth by the Comptroller. Internal Control—Integrated Framework states,

While management can use others to execute business processes, activities, and controls for or on behalf of the entity, it retains responsibility for the system of internal control.

Because BORIM is the state agency with the overall responsibility of making sure only competent doctors are licensed to practice in Massachusetts, it is also responsible for oversight of organizations that contribute to its mission, including PHS.

We used the Federation of State Medical Boards’ (FSMB’s) Guidelines for the Structure and Function of a State Medical and Osteopathic Board as criteria to assess BORIM’s monitoring and oversight program. Although BORIM is not required to follow these guidelines, they are a best practice for state medical boards. Regarding a contract with a PHP provider, the guidelines state,

[A state medical board] should have available to it a confidential impaired physician program approved by the Board and charged with the evaluation and treatment of licensees who are in need of rehabilitation. The Board may directly provide such programs or through a formalized contractual relationship with an independent entity whose program meets standards set by the Board.

Additionally, regarding policies and procedures for the PHP provider, these guidelines state,

The board should be authorized at its discretion to establish rules and regulations for the review and approval of a medically directed Physician Health Program (PHP).

We believe that the rules should include guidelines for PHS, because the guidelines also indicate that state medical boards should “develop, recommend, and adopt rules, standards, policies, and guidelines related to qualifications of physicians and medical practice,” and PHS’s services relate to ensuring that physicians are qualified.

Regarding reviews of the PHP provider, the FSMB document states,

[A state medical board] should be the final authority for approval of a PHP, should conduct a review of its approved program(s) on a regular basis and should be permitted to withdraw or deny its approval at its discretion.

Regarding approval of a PHP provider, the FSMB document states,

[A state medical board] . . . should . . .

21. establish a mechanism, which at the Board’s discretion, may involve cooperation with and/or participation by one or more Board-approved professional organizations, for the identification and monitored treatment of licensees who are dependent on or abuse alcohol or other addictive substances which have the potential to impair.

Because an organization needs to be board-approved to provide the above services, it would be reasonable for BORIM to document its approval of PHS as its PHP provider.

Regarding providing a fair disposition process, Section 1 of Title 243 of the Code of Massachusetts Regulations governs the handling of matters related to the practice of medicine and adjudicatory hearings by BORIM. It is “based on the principle of fundamental fairness to physicians and patients and shall be construed to secure a speedy and just disposition [of any cases].” Because BORIM is responsible for following this regulation, it should ensure that its PHP provider has a fair disposition process.

Finally, regarding PHC Unit meetings with PHS, Section II(g) of the PHC Unit’s procedures states, “PHC Unit staff meets monthly with the staff of PHS to review mutual monitoring cases.”

Reasons for Lack of Oversight

When discussing why BORIM did not have oversight controls, written policies and procedures with PHS, or documentation approving PHS as the Commonwealth’s PHP provider, BORIM management told us that PHS was the Commonwealth’s long-term PHP provider and that BORIM management felt PHS’s staff included very knowledgeable medical experts and therefore PHS did not require oversight. In a meeting with the audit team, the BORIM executive director stated, "The board does not interfere with the treatment decisions made by PHS pertaining to the impaired physician, since PHS is deemed the experts with a very knowledgeable physician in its management." He added that PHS had been very responsive to BORIM personnel and board members.

Regarding the lack of a contract, the BORIM board of directors told us that a formal arrangement might present the appearance of a conflict of interest between BORIM and PHS and prevent physicians from voluntarily seeking necessary confidential rehabilitation assistance. We believe, however, that neither of these reasons is valid, or FSMB would not promote the use of formal contracts as a best practice. In addition, other states have formal contracts with their PHP providers, as mentioned in the "Overview of Audited Entity" section of this report. It is possible to build confidentiality requirements into a contractual relationship.

Regarding documentation of BORIM approving PHS as the Commonwealth’s PHP provider, BORIM management stated that they could not find a vote by the board of directors approving PHS in the available meeting minutes. Also, BORIM management told us a program review of PHS was not conducted because BORIM’s board of directors was satisfied with PHS’s performance.

BORIM management told us that although the BORIM board of directors addresses physicians requesting a provider other than PHS for their PAs, the board of directors does not provide a dispute resolution process for individuals receiving PHS services, because the BORIM board of directors does not get involved in disputes between physicians and PHS regarding treatment plans.

Regarding the lack of PHS meeting documentation, BORIM personnel stated that these meetings were considered informal discussions about physician cases and therefore were not documented.

Recommendations

1. BORIM should establish oversight and monitoring controls over PHS, including the following:a.

a. BORIM should establish a formal contract with PHS documenting PHS’s responsibilities as the PHP provider.

b. BORIM’s board of directors should

formally approve PHS as the Commonwealth’s PHP provider.

c. BORIM should establish policies and procedures that PHS, its vendors, and other providers must follow to ensure that impairment cases are properly and consistently handled.

d. BORIM should implement a requirement of PHS program reviews to determine whether PHS meets BORIM’s expectations.

e. BORIM should ensure that a fair disposition process for dispute resolution is provided to physicians under PHS care.

f. BORIM should document monthly meetings between the PHC Unit and PHS.

Auditee’s Response

The Board disagrees "best practices" under the Federation of State Medical Boards' (FSMB) Guidelines for the Structure and Function of a State Medical and Osteopathic Board, requires the Board to have oversight of Physician Health Services. Rather, the Board has discretion whether to exercise oversight of Physician Health Services (PHS), and the Board strongly maintains that PHS's independence from the Board is essential to encourage physicians to seek help and for PHS to be effective. If PHS, or another provider of similar health services, is viewed as an adjunct of the Board, physicians will be deterred from seeking necessary treatment as they will view PHS, as an arm of the Board. PHS' findings would be viewed as the Board’s findings and/or issued by PHS to satisfy its “contractual obligations” to the Board. Such a result, where physicians no longer seek treatment, could have an extremely harmful effect on patient safety. [The American College of Physicians has stated: "Various constituencies, such as hospitals, insurers, boards, and medical societies, can support PHPs but should not influence day-to-day operations and case management." Physician Impairment and Rehabilitation: Reintegration Into Medical Practice While Ensuring Patient Safety: A Position Paper From the American College of Physicians, Ann Intern Med. 2019; 170(12):871-879.]

As we shared with the auditors, while the Board does not have a contractual relationship with PHS, the Board continuously assesses PHS's performance. PHS is a “finder of fact” or an “evaluator of a problem” for the Board, it is the Board not PHS who has the authority and duty to determine what disciplinary action, if any, should be taken based on PHS' findings. "The effectiveness of PHS is assessed on a case by case basis. When PHS evaluates a physician based on their self-report, or at the direction of the Board, it either makes its independent verification of the facts or uses other “specialist” or entities for verification and analyses. After its evaluation, PHS makes recommendations to the Board for possible remediation options, including periodic assessments, ongoing monitoring for a defined period of time, testing (in case of substance abuse). The information thus gathered and the recommendations received from PHS, is then carefully and deliberately considered by the Board, as a basis (but not the sole basis) supporting the Board's decision whether to impose discipline, monitoring, remediation or further evaluation. It is not uncommon for the Board to ask for additional information, an alternate opinion or other data that might be helpful to the Board in making its decision, which PHS is not privy to.

Further, although BORIM has not requested an audit of PHS' programs, PHS hired an independent evaluator with special expertise in the operations of health programs to conduct an independent review of their programs as referenced in the Physician Health Services 2017 Annual Report.

Auditor’s Reply

The Office of the State Auditor (OSA) can appreciate BORIM’s position regarding the establishment of a contract with PHS. However, as noted above, FSMB guidelines indicate that it is a best practice for a state medical board to enter into a contract with its PHP provider. Although we are not in a position to comment on whether entering into a contract with PHS might negatively affect the number of physicians seeking treatment, it is important to note that this concern has not deterred many other state medical boards from entering into formal contracts with their PHP providers.9 According to the Federation of State Physician Health Programs’ website, 36 (75%) of the 48 states with PHPs had entered into contracts with their PHP providers as of March 10, 2020. Although we acknowledge that PHS provides BORIM with services and information that are critical to BORIM’s decision-making, OSA believes that by entering into a formal contract with PHS, BORIM will have better control over program services and quality. A formal contract would allow BORIM to establish essential program requirements, such as formal program performance standards and measures, confidentiality requirements, program quality assessment requirements (e.g., peer reviews or audits), and an established grievance process for physicians who may not be satisfied with their treatment programs.

In its response, BORIM asserts that it continuously assesses PHS’s performance on a case-by-case basis. However, BORIM did not provide OSA with any formal standards it may use to perform these assessments. Further, although we believe it is a sound management practice for BORIM to conduct a case-by-case review of PHS’s evaluations of each physician and use this information as one way to assess the quality of PHS’s services, we also believe BORIM could more effectively assess PHS’s overall performance and the quality of PHP services by establishing formal performance standards and monitoring PHS’s overall compliance with them.  

BORIM points out that “PHS hired an independent evaluator with special expertise in the operations of health programs to conduct an independent review of their programs as referenced in the Physician Health Services 2017 Annual Report.” Although we acknowledge that PHS’s hiring of a consultant to perform a review of its program services is commendable, we believe that a contractually required periodic assessment of program services will better allow BORIM to monitor and ensure program quality and integrity. Further, when we asked BORIM officials to provide us with a copy of PHS’s 2017 annual report, they told us they did not have a copy; therefore, we could not determine to what extent, if any, BORIM reviewed this report and assessed the quality of the PHP services provided.

9.     Other states that have entered into contracts with their state medical boards include Colorado, Florida, Maine, and New York.

Date published: April 7, 2020

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