SPECIAL REPORT ON THE

WEST VIRGINIA BOARD OF MEDICINE

Updated Review of the

West Virginia Board of Medicine's

Compliance with the

Federation of State Medical Board's

Report Recommendations

OFFICE OF LEGISLATIVE AUDITOR

Performance Evaluation & Research Division

Building 1, Room 314-W

State Capitol Complex

CHARLESTON, WEST VIRGINIA 25305

(304) 347-4890

February 1999

SPECIAL REPORT ON THE WV BOARD OF MEDICINE

INTRODUCTION

The West Virginia Board of Medicine requested that the Federation of State Medical Boards of the United States, Inc. conduct an independent and impartial review of the procedures used by the Board. The Federation completed its report on March 25, 1998 and the Board released it to the public on May 15, 1998. The Board created the Federation's Focused Review Ad Hoc Committee to review the Federation's report and its recommendations. The Ad Hoc Committee's five members, all are Board members, met a total of five times to discuss the report. The Ad Hoc Committee made its report to the full Board on the Federation's report on November 8, 1998. It should be noted that this was the first time that the Federation completed review of this nature.

FOLLOW UP ON REPORT RECOMMENDATIONS

Federation Recommendation 1

The Board should ensure the unbiased selection of impartial hearing examiners.

Status: The Ad Hoc Committee recommended that the Board employ a part-time attorney to take over the duties relating to the Complaint and Licensure Committees so as to eliminate the perception of a bias for the prosecution of complaints against doctors. This position was posted by the Division of Personnel on January 26, 1999 and has a deadline of February 8, 1999. Five applications were received for this position. Selected interviews will be held on March 6, 1999 and the position may be filled as early as March 8, 1999 which is the next time the board meets. The salary will be half, since it is part-time, of a Pay Grade 16 which is $27,768 to $45,168 based on experience.

Also, the Board adopted a motion that the Executive and Management Committees explore various methods to strengthen the hearing examiner process. According to Board staff, the Board approves annual contracts of hearing examiners. The contracts are for $80 an hour not to exceed $9,500. These hearing examiners, according to the Board, are assigned to hear cases in rotation by the Board's Executive Director, subject to available funds left in an examiner's contract, availability of the examiner for the case, and lack of conflict of the examiner for the specific case. Board staff provided documentation that supports the procedures mentioned above. This is contrary to the Federation's report that the Board delegated responsibility to its legal counsel for appointing hearing examiners to conduct disciplinary cases. The Performance Evaluation and Research Division contacted the Federation in an effort to determine what information they used to base their conclusions with regards to this issue. The Federation responded that all of the information that they used to arrive to their conclusions pertaining to this issue is in the report and that there is no other information available.

Federation Recommendation 2

The Board should adopt policies to minimize the confrontational nature of the initial encounter with physicians against whom a complaint has been received.

Status: The Federation's report identified that the Board's encounters with physicians have improved with recent changes in procedures that took place prior to the report. An example of this is the "toning down" of language used in correspondence sent from the Board to physicians by adding the statement, "This information is provided to you in an effort to be honest and helpful" to the end of such correspondence. The Board already has available a practitioner's complaint file for review by the physician or the physician's attorney. The Ad Hoc Committee adopted a motion to make the Board responsible for forwarding a copy of any expert opinion obtained at the Board's request to practitioners against whom a complaint has been filed.

Federation Recommendation 3

The Board should communicate to all respondents its willingness to mediate the development of mutually acceptable consent orders.

Status: The Ad Hoc Committee disagrees with this recommendation because there currently is nothing in statute or rules that requires mediation of consent orders. The Ad Hoc Committee concluded that no further action on this issue was necessary. The Performance Evaluation and Research Division determined that there is nothing in statute or rules pertaining to the mediation of consent orders.

However, in an effort to look for ways of improvement in this area, the Board's Management and Executive Committees with the assistance of one of the other Board members, who is an attorney, have begun to study the mediation and dispute resolution process. The committee had its first meeting on this subject this past January 1999. Its next meeting is scheduled for March 1999. The Performance Evaluation and Research Division was unable to substantiate this meeting because minutes from the January 1999 meeting are not yet available and have not yet been approved by the Board. However, Board staff stated that once the minutes for the January 1999 meeting are approved by the Board at its March 1999 meeting, they will reflect that the Committee is working on this issue.

Federation Recommendation 4

Utilize medical expertise in the process of reviewing and evaluating complaints.

Status: The Ad Hoc Committee reported that no action was required on this recommendation since, in the Board's opinion, the Federation's facts of the issue are inaccurate. According to the Ad Hoc Committee, the Board has always used medical expertise in reviewing every complaint in the form of the Board's Complaint Committee, and that the Board's Executive Director contacts the Chair of the Complaint Committee on emergency matters. The Board provided examples of medical reviewer agreements made with outside physicians prior to the Federation's report to support their claim.

Federation Recommendation 5

The Board should adopt a policy allowing complaints to remain confidential as part of the investigative file until such time as the complaint forms the basis of a formal hearing.

Status: The Ad Hoc Committee did not accept this recommendation and concluded that no action be taken on this recommendation since the Federation's facts of this issue are inaccurate. The Board's counsel stated that in 1986, the Supreme Court ruled in The Daily Gazette Co., Inc. v. The West Virginia Board of Medicine that complaints made against practitioners shall remain in a practitioner's historical file for two years from the date the complaint was filed and shall be a matter of public record during that two year period if the Board closed the complaint. The closure decision remains a part of the file indefinitely. The Performance Evaluation and Research Division was able to substantiate that the previously mentioned case ruled that such information is a matter of public record and the two year time requirement is mandated by WVC '30-3-9.

Federation Recommendation 6

The Board should consider dissolving the Complaint Committee by revising its procedural rules.

Status: The Ad Hoc Committee disagrees with this recommendation because it believes that the Federation's perception of the complaint process is inaccurate. The Complaint Committee is established as a permanent committee of the Board by CSR '11-3-9. Complaints are reviewed by members of the Complaint Committee, consisting of two medical doctors, one podiatrist and one lay member. The Complaint Committee does negotiate the terms of the consent orders. The Complaint Committee routinely utilizes outside medical consultants for review of complaints. Members of the Complaint Committee, as a matter of policy, don't take part in the final vote of the full Board on cases that have gone before them. The Board adopted a motion to affirm its current approach of using the Complaint Committee and that no significant revisions be implemented. According to the Board's counsel, of the states bordering West Virginia, Ohio, Kentucky and Pennsylvania use a similar organizational structure in reviewing complaints. The Performance Evaluation and Research Division contacted the medical boards from all three states and could substantiate that there are similarities with all three.

Federation Recommendation 7

The Board should develop policies which encourage the investigation of all complaints.

Status: The Ad Hoc Committee's main concern about investigating all anonymous complaints was that the process might be abused. Board staff stated that they receive very few anonymous calls. According to Board staff, they estimated only two to three anonymous complaints have been received in the last ten years. The Board's current procedure is that any person making an anonymous complaint is strongly encouraged to file a formal complaint. If the anonymous complaint involves a serious, life-threatening situation, an investigation does take place. The Board adopted a motion that the current anonymous complaint practice be affirmed and that the Executive and Management Committees be requested to query other state boards similar to the West Virginia Board of Medicine on this issue. So far, the Board has contacted only four states on how they handle anonymous complaints. The Board stated that they are still in the process of contacting states on this issue.

Federation Recommendation 8

The Board should activate the Management Committee to improve oversight operations of internal communications.

Status: The Ad Hoc Committee recommended that the Management Committee should discuss the budget and develop review processes. Also, the Management Committee should define clear roles for staff and develop administrative management procedures. It should be noted that according to Board staff, the Management Committee was in operation at the time of the Federation's report. However, it did not meet often. As a result of the report, the Management Committee has become more active in its role and has met every time the Board has met since July 1998. This is a total of four times. According to Code of State Rules '11-3-9, the Management Committee consists of three Board members appointed by the Board President. The Committee oversees the day-to-day operation of the Board and is responsible for all financial matters with the exception of the setting of fees which is the responsibility of the entire Board.

Federation Recommendation 9

The executive director should receive an annual performance evaluation and the Board should review and update staff job descriptions on a regular basis.

Status: According to Board staff, the Executive Director began conducting staff reviews three years ago on an annual basis. Reviews were last conducted during January 1998. The Executive Director received his first and, to this point, only annual performance evaluation on March 11, 1998 which was conducted by the Secretary of the Board who is the Commissioner of the Bureau for Public Health. Reviews of staff and the Executive Director have not yet been done for 1999. The Performance Evaluation and Research Division verified that staff reviews had previously been done.

Federation Recommendation 10

The Board should consider developing a Board member orientation program.

Status: The Board has begun an orientation program for new members. An orientation was conducted on November 7, 1998 at the Marriott in Charleston. It was attended by twelve members. This orientation included presentations from the President, Complaint Committee Chairperson, Legal Counsel, and the Executive Director. The Board produced documentation announcing a luncheon but it did not specify that it was for orientation purposes.

Federation Recommendation 11

The Board should develop and implement a public education and outreach program.

Status: The Ad Hoc Committee recommended that the Board implement the following: (1) consider hiring a media consultant; (2) create a standard presentation to "take on the road" to consumer groups, medical societies, etc.; and (3) expand on the use of the licensure process (i.e. develop a brochure to distribute at license interviews). The Board adopted these recommendations.

The Board does not feel that it is appropriate to hire a media consultant as mentioned in item (1) and has not done so. The Board has developed the written content for a slide show to be used as the standard presentation referred to in item (2). This material was sent to Charleston Area Medical Center (CAMC) for preparation of a slide show based on the information developed by the Board. Dr. Joe Skaggs of CAMC is helping to coordinate this project with the Board. The Board has developed a handout sheet on the licensure process as mentioned in item (3). Other materials that the Board puts out as part of its public education and outreach program include a quarterly newsletter and a brochure describing the Board and how it works. The Performance Evaluation and Research Division were provided copies of these materials.