Failing to request a hearing can be a very costly mistake.

Today, I attended the monthly meeting of the State Medical Board of Ohio.  I was surprised to see that in all six cases handled by the Board, the licensees had failed to request a hearing.  Despite the fact that the Board may impose any sanction, ranging from dismissal to permanent revocation of a license, in each case where the licensee failed to request a hearing, the Board either revoked or permanently revoked their licenses.

The Board Members expressed concern that if these licensees had not requested a hearing or attended the Board meeting, these licensees were not interested in maintaining an Ohio license.  Therefore, the Board revoked their licenses.  By failing to request a hearing, the Board is often left with unanswered questions.

Often, professionals will tell me that do not want to request a hearing or appear before the Board because they have already submitted documentation in support of their case and they believe they have, “no other information to provide to the Board”.

Failing to request a hearing can be a very costly mistake.  There is no more powerful information than the personal testimony of a license holder.  Boards typically like to see that an individual understands the gravity of charges against them, that the individual accepts responsibility for their conduct, that the individual expresses remorse for their conducts, and how the individual will handle a similar situation in the future.

Often, I find that cases appear to be far more serious on paper and that once testimony is provided from the licensee and by those who support the licensee, the Board is able to have their questions answered and view the case in a much less serious light.  In some instances, I have also seen that the sanction the Board imposes after a hearing is less harsh than the Board was contemplating prior to the hearing.

Failing to request a hearing can be a very costly mistake.  It is recommended that a licensee request a hearing and to present testimony in your defense.  If you want to retain your medical license, you need to fight for it.

As always, if you have any questions about this post or about the State Medical Board of Ohio in general, please feel free to contact me at beth@collislaw.com or at 614-486-3909.

Rich Doc/Poor Doc

In my practice of representing physicians who are under investigation by the State Medical Board of Ohio, DEA, local law enforcement, and/or their employer, I have seen many professionals struggle with multiple issues.  Recently, I have noticed  that far too many physicians are in disastrous shape financially.  Many physicians have poor money management and/or business management skills that have led them to entering into risky contracts or taking on jobs that they otherwise would have not considered.

Most physicians do not have the time, training, or education to be good money managers and, therefore, generally, many make poor financial decisions.  Many physicians enter the practice of medicine deeply in debt with student loans.  Many residents live beyond their means in the belief that once they complete their residencies, they will be given lucrative employment contracts.  Often, young physicians are so far in debt after completing their training, they are forced to accept work in undesirable practices to pay their debt.

Too often, physicians are also seen as “easy targets” for unscrupulous people.  I am always surprised to learn of highly educated physicians who enter into risky business dealings or fail to perform due diligence when purchasing property or entering into a business venture.

I have seen numerous instances in which physicians who are strapped with debt make unwise decisions as to where they will work and who they choose to associate themselves with in their medical practice.  Often, these physicians will seek ways to save money in their medical practice that leads to poor patient care or that is contrary to law.  Last year, the State Medical Board of Ohio disciplined a number of physicians who (in an effort to save money) purchased non-FDA approved medications from outside of the United States to administer to their patients.  These physicians did not realize that they were violating the law by purchasing these medications.  Nevertheless, these physicians were each subjected to disciplinary action by the Board.

I have also seen physicians continue to work for high volume practices in which they are constantly pushed to order expensive tests to ensure that the practice is highly compensated.  Often, these physicians tell me that they felt trapped in these jobs because the high salaries allow them to pay their debts.  I have also seen physicians take “moonlighting” jobs in areas outside of their specialty in an effort to repay debt only to find themselves investigated by the Board or DEA for practicing or prescribing outside of their scope of expertise.

The best way to have choices as a physician is to live within your means and to take the time and effort to do research before joining a particular practice or entering into a particular business dealing.  Physicians who are financially strapped risk making poor personal and business decisions that can lead to discipline by the Board or another agency.

A qualified accountant can be of assistance regarding your taxes.  A relationship with an attorney can be of benefit when researching a particular job or business venture.  A financial planner can offer guidance as to investments.   Utilizing these types of individuals allows you as a physician to do what you do best…to practice medicine.

As always, if you have any questions about this post or the State Medical Board of Ohio in general, please contact me at Beth@collislaw.com or call me at 614-486-3909.

Physicians’ Legal Obligation to Report to the State Medical Board of Ohio

Last week, the State Medical Board of Ohio issued a landmark decision in which the Medical Board permanently revoked the license of a physician for failing to report to the Medical Board allegations of sexual misconduct concerning the physician’s colleague.

Pursuant to ORC 4732.224(B), an individual licensed by the Medical Board who has reason to believe that a violation of any provision of the Medical Board’s statutes or rules has occurred shall report to the Medical Board. Although this law has been in effect for many years, this was the first time we are aware that the Medical Board has disciplined a licensee for failing to report a licensee under this law. It was also remarkable that the sanction imposed was a permanent revocation, which is the most serious sanction that can be imposed by the Medical Board.

An interesting factor of this case also rests in the subjective wording of the reporting statute, which provides that a licensee who “has reason to believe” that a violation of Medical Board law or rule has occurred shall report to the Medical Board. This subjective wording can make it difficult for a physician to know when they must report to the Medical Board allegations made against a colleague.  However, OAC 4731-15-01(D) provides guidance by indicating that “reason to believe” or “a belief” does not require absolute certainty or complete unquestioning acceptance, but only an opinion that a violation has occurred based upon firsthand knowledge or reliable information.

In this case, the Board’s attorneys argued that the physician’s failure to report to the Medical Board allegations of sexual misconduct concerning the physician’s medical partner with patients in the practice was a violation of the reporting statute. Despite the fact that the physician who allegedly engaged in misconduct was terminated from employment at the medical practice, the physician who failed to report to the Medical Board the alleged misconduct permanently lost his medical license.

Although there are certain exceptions to the reporting requirement in OAC 4731-15-01(B), those exceptions are limited and require a fact specific analysis in each individual case.

Under OAC 4731-15-01(E), a report required to be made must be made to the Medical Board within 48 hours. Under OAC 4731-15-01(G), each report must include (i) the name of the practitioner or other individual in violation, (ii) the violation which is believed to have occurred, and (iii) the date(s) of and place(s) of occurrence(s), if known.

This case is a cautionary tale to Ohio physicians. If you have reason to believe that another licensed professional is violating any of the provisions of the Ohio Medical Practice Act (ORC 4731 et seq and OAC 4731 et seq), you are required to report to the Medical Board.

As always, if you have any questions about this post or about the State Medical Board of Ohio in general, please feel free to call one of the attorneys at the Collis Law Group LLC at 614-486-3909 or email me at beth@collislaw.com

 

 

What is a Medicaid Exclusion and Is There a Way to Appeal These Decisions?

The Department of Health and Human Services has the authority to exclude certain individuals from participating in Medicare, Medicaid, and all Federal health care programs as defined by 1128B(f) of the Social Security Act.

Exclusion from participation can materially affect a professional’s scope of practice because exclusion prohibits the professional from submitting or causing claims to be submitted to any Federal health care program (such as Medicare, Medicaid, VA, TRICARE, the Military Direct Care System, etc.) for any items or services the professional provides and prevents the professional for working in any capacity for an organization that accepts Federal funding. (However, exclusion does not prevent the professional or their family members from receiving benefits to which they are entitled under a Federal program.)

There are two types of exclusion: Mandatory Exclusion is required for certain offenses (42 USC §1320a-7(a)) and Permissive Exclusion is discretionary and may be imposed for certain other offenses (42 USC §1320a-7(b)).

Generally, mandatory exclusion is required for a (i) conviction of health care program-related crimes, (ii) conviction related to patient abuse, (iii) felony conviction related to health care fraud, and (iv) felony conviction related to controlled substances.

Generally, permissive exclusion may be imposed for a number of different offenses including but not limited to (i) a misdemeanor conviction related to controlled substances, (ii) a health care license revocation or suspension, and (iii) excessive charges or unnecessary services.

In my practice, I have seen physicians and other licensed professionals (including nurses) receive a letter from the OIG proposing an exclusion from participation in Federal health care programs following a suspension of their professional license or after a misdemeanor or felony conviction or after being convicted of a drug crime.

In cases where exclusion is permissive, it is recommended to provide the OIG with a clear and detailed response as to why the exclusion should not be imposed.  Under certain circumstances, the OIG may choose not to impose exclusion.  In other instances, the OIG will impose exclusion for a specific time period, for example, during the time period that the professional’s license is suspended.

If you receive a notification from the OIG proposing an exclusion, experienced legal counsel can assist you to formulate and file a timely response.

As always, if you have any questions about this post, the State Medical Board of Ohio or the unintended consequences of a Medical Board disciplinary action, feel free to contact the attorneys at the Collis Law Group at 614-486-3909 or send me an email at beth@collislaw.com

Happy New Year! Don’t drink and Drive tonight

Happy New Year.

A quick public service announcement to all physicians licensed in Ohio. As you go out to celebrate the New Year tonight, do not drink and drive! It’s unsafe for you and others and may also have devastating consequences on your professional license.

If you are charged with an alcohol related offense, OVI, disorderly conduct, reckless operation (just to name a few), the Medical Board has the authority to take a disciplinary action against your professional license.

Yes. Keep in mind. The Medical Board is concerned about your behavior and conduct 24/7. Even if you are not scheduled to work tomorrow, or this weekend, if you are charged and convicted with an alcohol related offense, the Medical Board can take a disciplinary action against you.

Depending on the facts and circumstances, the Medical Board has the authority to order you to a 72 hour chemical dependency evaluation at a Board approved treatment center. Then, depending on the results of the assessment, you could be ordered to complete 28 days of RESIDENTIAL treatment. Your license would be suspended for an indefinite period of time (at least 30 days) and you would be required to enter into a five year monitoring agreement with the Medical Board once your license is reinstated.  If licensed in other states  you would need to disclose the Medical Board action.  This would be considered a public disciplinary action and would be noted on the Medical Board website indefinitely.

In the past, I have always encouraged physicians to appoint a designated driver if they plan to consume alcohol. But, too often, the “designated driver” leaves the party early or consumes alcohol themselves!  Before you go out tonight, schedule a taxi to pick you up or download the Uber app on your phone. I recently used the Uber app and caught a ride to the airport at 7am. I couldn’t believe the ease of using this app.

Even if you are just going to a low key party at a friend’s house “down the street”, don’t risk your professional livelihood. Order a driver, taxi or Uber BEFORE you leave the house tonight.

Have fun. Be safe and Happy New Year.

As always, if you have any questions about this post or about the State Medical Board of Ohio in general, please contact me at beth@collislaw.com or at my office at 614-486-3909.

 

Being Investigated by the Medical Board? When to hire an attorney

I am often asked by physicians when is the best time to hire an attorney if they are being investigated by the State Medical Board of Ohio. The short answer is, the sooner the better.

The Medical Board is a governmental body that is established to regulate the practice of medicine in Ohio. As a regulatory agency, the Medical Board is required to investigate all complaints that are received related to physicians.

The Medical Board will assign an investigator to collect initial information related to the complaint. The investigator may request to meet with the physician to ask questions about the complaint. The Medical Board has the authority to subpoena medical records, to send the physician Interrogatory questions (questions the physician must respond to under oath), and may order the physician to a Deposition at the Medical Board office.

Any and all information submitted to the Medical Board or to the Medical Board’s investigator may be used as evidence to sanction a physician. Occasionally, physicians will speak with investigators, respond to Interrogatory questions, and even attend a Deposition without legal counsel. Many physicians believe that if they have “nothing to hide” they see no reason to retain an attorney. This is often a mistake.

The value of hiring experience legal counsel BEFORE you provide any information to the Medical Board is to help guide the physician through the investigative process, to help the physician understand all questions that are asked, and to assist the physician to provide information only as to what is being asked (and not irrelevant information and/or emotional or argumentative commentary).

Even if the physician believes the investigation is meritless, they still have a duty to cooperate in the investigation. The Board is required to investigate all complaints and has the authority and ability to close meritless complaints. However, by failing to provide clear, accurate, and timely responses to the Medical Board, the physician can exacerbate and/or extend the investigation. By arguing with investigators or providing non-responsive or argumentative replies to the Medical Board, the physician runs the risk of the investigator continuing the investigation or including in their investigation information which could have a negative impact for the physician.

The Board has no time limit to complete an investigation and often investigations can drag out for years.

In addition, once the physician responds to questions from the Medical Board, it is nearly impossible to “change your story”. Therefore, prior to responding to a Medical Board investigation, the physician should know and understand the law as it relates to the questions they are being asked. If the physician is not in compliance with the law, they should have a plan in place as to HOW they will come into compliance. Therefore, the sooner the physician retains experienced legal counsel, the more assistance legal counsel can provide.

Generally speaking, if the physician chooses to meet with the Medical Board investigator, respond to Interrogatory questions, and/or attend a Deposition without legal counsel, there is far less that legal counsel can do to assist the physician if the Medical Board institutes a disciplinary action.

I have also been asked if retaining legal counsel makes the physician look “defensive”. In my experience, the Medical Board respects the assistance of experienced legal counsel and understands that the entire investigative process is smoother when the physician is represented and informed.

As always, if you have any questions about the State Medical Board of Ohio in general or this blog post, please contact me at Beth@collislaw.com, check our firm website at http://www.collislaw.com or call to speak with one of the attorneys at the Collis Law Group, LLC at 614-486-3909.

Ohio Physicians…Emeritus registration is an honorable and practical status following your retirement from the practice of medicine in Ohio.

Many physicians struggle with retirement. Many physicians envision practicing medicine until the day they die because they view medicine not only as their job, but as their way of life, identity, and calling.

I am aware of physicians who have lived outside Ohio or have not practiced in Ohio for many years who nevertheless continue to maintain an active Ohio medical license. However, to maintain an active medical license in Ohio, a physician must keep up to date with costly continuing education hours and renewals, and other legal and administrative requirements, the failure of any of which to adhere to could subject the physician to costly and stressful investigation and/or discipline by the State Medical Board of Ohio (“Board”). Additionally, even if a physician voluntarily allows their Ohio medical license to expire or lapse, the Board retains the legal right to institute a disciplinary action against the physician’s Ohio medical license for violation of certain laws or rules.

There is a simple way to avoid these problems. Under Board administrative rule 4731-22, a physician licensed to practice medicine and surgery in Ohio for at least ten years who declares that he or she is retired from active practice may apply to the Board for emeritus registration. For purposes of emeritus registration, “retired” is a status that means an individual has no active license in another state, or agrees in the emeritus application that he or she will not apply for renewal or reinstatement of any license held in another state. The physician may apply for emeritus registration by indicating on his or her biennial registration form or in written correspondence to the Board if he or she is in fact retired from active practice of medicine and surgery. To be eligible for emeritus status, the physician must also not have been the subject of disciplinary action in Ohio resulting in the revocation, suspension, probation, reprimand, or any other limitation of the physician’s license to practice.

Emeritus registration is not a license to engage in the practice of medicine and surgery and emeritus registrants may not engage in, or hold themselves out to others as actively engaged in, the practice of medicine and surgery. However, emeritus registrants may refer to themselves as doctor, if previously licensed to practice medicine and surgery.

Additionally, emeritus registrants are not required to comply with the Board’s continuing education requirements and also are exempt from renewal and renewal fees.

An emeritus registrant may apply to change back to active practice under conditions specified in the Board’s rules.

Emeritus registration is also available for practitioners licensed to practice osteopathic medicine and surgery, podiatric medicine and surgery, massage therapy, or cosmetic therapy in Ohio.

Be proactive. If you are ready to retire from the active practice of medicine and surgery in Ohio, consider applying for emeritus registration. Emeritus registration offers an honorable and practical status for a physician retiring from the active practice of medicine and surgery.

As always, if you have any questions about this post or the State Medical Board of Ohio in general, please feel free to contact me at Beth@collislaw.com or 614-486-3909 or check out our firm website at www.collislaw.com.