Archives for January 2011

Florida Federal Court Declares Health Care Reform Act Unconsitutional

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Today a federal judge in Florida has ruled that the Patient Protection and Affordable Care Act (“Act”) is unconstitutional. It now appears that the constitutionality of the Act will ultimately be decided by the United States Supreme Court.

The Florida Court held that the federal government under the Commerce Clause may not compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. The Commerce Clause, found in Article I of the U.S. Constitution, gives Congress broad powers to regulate interstate commerce.

It appears that many are interpreting these decisions as an affirmation of the views of those who oppose the Act; however, it appears these decisions are based more on constitutional interpretation instead of whether the ideology of universal health care is with or without merit.  Regardless of one’s political view on universal health care, it is safe to say that this will be one of the most anticipated U.S. Supreme Court decisions in decades (it is likely to be heard in 2012 or 2013).

If you have a question about health care reform contact Arizona Attorney Robert Chelle.

Arizona Board of Osteopathic Examiners Complaint – Disposition

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The Arizona Board of Osteopathic Examiners in Medicine and Surgery (“Board”) oversee all investigations and complaints regarding Doctors of Osteopathic Medicine (“DO”) licensed to practice in Arizona. The Board has issued guidelines into the investigative process. An investigation by the Board is initiated through; 1) a complaint is filed against a physician, 2) voluntary reporting, 3) or when other organizations are required by law to report a possible violation to the Board. The Board has published Investigative Procedure Guidelines that list seven distinct stages of the complaint process. The stages are as follows:

1. Notification of an Investigation
2. Processing of Information
3. Board Review
4. Case Review
5. Investigative Hearing
6. Formal Administrative Hearing
7. Disposition of Cases

This post will examine the last stage of the complaint process; Disposition of Cases. A general time-line for the Disposition of Cases stage is as follows:

1. Once the case is decided by the Board, the final disposition is made public record.
2. Each party involved in the investigation receives written notice of the disposition of the matter.
3. Cases that are dismissed will remain in the public record for three years.
4. Cases that result in a Letter of Concern will be placed in the public record for five years.
5. All cases that result in disciplinary action are finalized as an Order and are placed permanently in the public record.

Any physician under investigation must stay proactive. Contact an attorney as soon as possible, respond to the investigation respectfully and address the Board deferentially. Being under investigation can be an intimidating process, but it is important that every physician stays calm. Posting messages on internet forums (which happens more than you would think) is a bad idea. Beyond appealing a Board decision to the Superior Court, the Board ultimately determines your fate and showing respect, is in my opinion, one of the most important things a physician can do during an investigation.

If you have any questions about an Arizona Board of Osteopathic Examiners in Medicine and Surgery complaint contact Attorney Robert Chelle.

Arizona Board of Osteopathic Examiners Complaint – Formal Administrative Hearing

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The Arizona Board of Osteopathic Examiners in Medicine and Surgery (“Board”) oversee all investigations and complaints regarding Doctors of Osteopathic Medicine (“DO”) licensed to practice in Arizona. The Board has issued guidelines into the investigative process. An investigation by the Board is initiated through; 1) a complaint is filed against a physician, 2) voluntary reporting, 3) or when other organizations are required by law to report a possible violation to the Board. The Board has published Investigative Procedure Guidelines that list seven distinct stages of the complaint process. The stages are as follows:

1. Notification of an Investigation
2. Processing of Information
3. Board Review
4. Case Review
5. Investigative Hearing
6. Formal Administrative Hearing
7. Disposition of Cases

This post will examine the sixth stage of the complaint process; Formal Administrative Hearing. A general time-line for the Formal Administrative Hearing stage is as follows:

1. The Formal Administrative Hearing is generally held when the Board is considering suspending or revoking the physician’s license.

2. Attendance by the physician is voluntary, but the Board can proceed to a final determination without the physician.

3. The Formal Administrative Hearing is transcribed by a court report and parties who testify are sworn under oath.

4. Once all parties have testified, if they choose, the Board makes a final determination and the case is disposed of.

The Board, during an Investigative Hearing, cannot proceed to a final determination if the physician does not appear. However, a Formal Administrative Hearing does not require attendance by the physician for the Board to take action. The final stage of the complaint process, Disposition of Cases, will be discussed next.

If you have any questions about an Arizona Board of Osteopathic Examiners in Medicine and Surgery complaint contact Attorney Robert Chelle.

Arizona Board of Osteopathic Examiners Complaint – Investigative Hearing

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The Arizona Board of Osteopathic Examiners in Medicine and Surgery (“Board”) oversee all investigations and complaints regarding Doctors of Osteopathic Medicine (“DO”) licensed to practice in Arizona.  The Board has issued guidelines into the investigative process.  An investigation by the Board is initiated through; 1) a complaint is filed against a physician, 2) voluntary reporting, 3) or when other organizations are required by law to report a possible violation to the Board.  The Board has published Investigative Procedure Guidelines that list seven distinct stages of the complaint process.  The stages are as follows:

1.       Notification of an Investigation
2.       Processing of Information
3.       Board Review
4.       Case Review
5.      Investigative Hearing
6.       Formal Administrative Hearing
7.       Disposition of Cases

This post will examine the fifth stage of the complaint process; investigative hearing.  A general time-line for the investigative hearing stage is as follows:

1.       If the Board determines disciplinary action is necessary they will schedule an Investigative Hearing or Formal Administrative  Hearing
2.       Appearance by the physician is voluntary at an Investigative Hearing.
3.       Investigative Hearings are semi-formal in nature and transcribed by a court reporter
4.       If the physician does not appear at the Investigative Hearing the Board must remand the case back to Case Review or forward to a Formal Administrative Hearing

Investigative Hearing outcomes include:

  • Dismissal
  • Letter of concern
  • Additional continuing medical education
  • Decree of censure
  • Probation
  • Practice limitations or restrictions
  • Suspension of license
  • Fine of up to $500 for each violation found

Failure to address the Board at the Investigative Hearing can only increase the chances of a negative outcome.  Every physician with a complaint pending against them should take every available measure to defend their license.  Contact an attorney as soon as possible in the complaint process.   The Formal Administrative Hearing stage of the complaint process will be discussed next.

If you have any questions about an Arizona Board of Osteopathic Examiners in Medicine and Surgery complaint contact Attorney Robert Chelle.

Arizona Board of Osteopathic Examiners Complaint – Case Review

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The Arizona Board of Osteopathic Examiners in Medicine and Surgery (“Board”) oversee all investigations and complaints regarding Doctors of Osteopathic Medicine (“DO”) licensed to practice in Arizona.  The Board has issued guidelines into the investigative process.  An investigation by the Board is initiated through; 1) a complaint is filed against a physician, 2) voluntary reporting, 3) or when other organizations are required by law to report a possible violation to the Board.  The Board has published Investigative Procedure Guidelines that list seven distinct stages of the complaint process.  The stages are as follows:

1.       Notification of an Investigation
2.       Processing of Information
3.       Board Review
4.       Case Review
5.       Investigative Hearing
6.       Formal Administrative Hearing
7.       Disposition of Cases

This post will examine the case review stage of the complaint process. A general time-line for the case review stage is as follows:

1.      This is the initial Board Review

2.       Attendance is voluntary by all parties

3.       The Board discusses the allegations behind the complaint and makes a determination.

The Board can either:

4.       Dismiss the complaint

5.       Issue a letter of concern without disciplinary action

6.       Require additional Continuing Medical Education (“CME”)

7.       Move the case to an investigative or formal administrative hearing

Although attendance is voluntary at the initial Board Review  it is important that the physician takes every opportunity to address the Board.  Addressing the Board in a deferential way can show that the physician takes the allegations seriously and respects the process.

If you have any questions about an Arizona Board of Osteopathic Examiners in Medicine and Surgery complaint contact Attorney Robert Chelle.

Arizona Seeks Waiver to Suspend Medicaid (AHCCCS) Coverage

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Today Arizona legislators will consider whether to authorize a request for a federal waiver allowing the state to temporarily suspend coverage of nearly 280,000 people enrolled in Arizona’s version of Medicaid (Arizona Health Care Cost Containment System).

Regardless of whether the federal government will actually grant the waiver, it interesting to see the effect this will have on our state’s emergency departments.  Numerous studies over the past ten years have shown that the uninsured use  emergency departments at a lesser frequency than those on Medicaid.  This is so because those eligible for Medicaid are generally the poor, the disabled and the elderly (three segments of the population that have a much higher rate of chronic disease than other population segments).  Logically, the chronically sick use the ED more frequently because they tend to need immediate medical attention more so than other segments of the population.

If Arizona becomes the first state to be granted a waiver that allows them to suspend Medicaid coverage below 2010 levels it seems likely that the majority of those individuals will continue to be uninsured until the coverage is reinstated.  Thus, Arizona may be the first state to suspend Medicaid coverage on a huge scale and dump a chronically ill population directly into an uninsured health care population.  Rest assured it will impact Arizona hospital bottom lines negatively because of the increase in self-pay (uninsured) patients.  It is impossible to anticipate where health care coverage is headed, but it certainly will be interesting to watch and it seems we may be on the front lines here in Arizona.

If you have a question about changes to the AHCCCS contact Arizona Attorney Robert Chelle

Arizona Board of Osteopathic Examiners Complaint – Board Review

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The Arizona Board of Osteopathic Examiners in Medicine and Surgery (“Board”) oversee all investigations and complaints regarding Doctors of Osteopathic Medicine (“DO”) licensed to practice in Arizona.  The Board has issued guidelines into the investigative process.  An investigation by the Board is initiated through; 1) a complaint is filed against a physician, 2) voluntary reporting, 3) or when other organizations are required by law to report a possible violation to the Board.  The Board has published Investigative Procedure Guidelines that list seven distinct stages of the complaint process.  The stages are as follows:

1.       Notification of an Investigation
2.       Processing of Information
3.       Board Review
4.       Case Review
5.       Investigative Hearing
6.       Formal Administrative Hearing
7.       Disposition of Cases

This post will examine the third stage of the complaint process; board review.  A general time-line for the board review stage is as follows:

1.       After the physician has submitted a written response, the complainant has been interviewed and all medical records and testimony have been gathered, the Board does a final check to ensure all pertinent information is collected.

2.       Once the Board is satisfied that all relevant information is assembled the Deputy Director or a medical consultant will summarize the case in a report that includes; allegations, responses, medical records and testimony recorded.

3.       The report is evaluated by three Board members who then make independent recommendations to the full Board.

4.       Once the recommendations are finalized the case is placed on the agenda of the Board’s next public meeting.

5.       The physician and complainant are informed of the date, time and location of the meeting where the case will be considered by the Board.

6.       This initial review is formally described as: Review, Discussion, and Action on Case Reviews of Allegations of Unprofessional Conduct

7.       Attendance is voluntary for this stage in the hearing, but the physician and complainant are provided an opportunity to address the Board at the meeting.

Do not miss the opportunity to address the Board.  Every physician with a complaint pending against them should take every available measure to defend their license.  Contact an attorney and make certain you are fully prepared to contest the allegations levied against you.  The next entry will discuss the Case Review and Investigative Hearing stages of the complaint process.

If you have any questions about an Arizona Board of Osteopathic Examiners in Medicine and Surgerycomplaint contact Attorney Robert Chelle.

Arizona Board of Ostepathic Examiners Complaint – Processing

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The Arizona Board of Osteopathic Examiners in Medicine and Surgery (“Board”) oversee all investigations and complaints regarding Doctors of Osteopathic Medicine (“DO”) licensed to practice in Arizona.  The Board has issued guidelines into the investigative process.  An investigation by the Board is initiated through; 1) a complaint is filed against a physician, 2) voluntary reporting, 3) or when other organizations are required by law to report a possible violation to the Board.  The Board has published Investigative Procedure Guidelines that list seven distinct stages of the complaint process.  The stages are as follows:

1.       Notification of an Investigation
2.       Processing of Information
3.       Board Review
4.       Case Review
5.       Investigative Hearing
6.       Formal Administrative Hearing
7.       Disposition of Cases

This post will examine the second stage of the complaint process; processing of information.  A general time-line for the processing of information stage is as follows:

1.       After receipt of notification of an investigation, the physician must submit a written response to the Board within 20 days.

2.       Within 30 days of filing a complaint the Board will contact and interview the complainant to confirm the allegations contained within the complaint.

3.       The investigator will subpoena any and all information necessary to complete the investigation including records held by other physician’s or health care organizations.

4.       The Board staff may compel the testimony of relevant witnesses if necessary.

The physician only has 20 days to respond to the notification of an investigation, thus, it is crucial to contact legal counsel as soon as the notification is received.  An attorney can draft an appropriate response to the Board, but time is needed to gather relevant and necessary information.  With a professional license on the line it is important that the physician is as proactive as possible to defend their interests.

If you have any questions about responding to an Arizona Board of Osteopathic Examiners in Medicine and Surgery complaint contact Attorney Robert Chelle.

Arizona Board of Osteopathic Examiners Complaint – Notification

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The Arizona Board of Osteopathic Examiners in Medicine and Surgery (“Board”) oversee all investigations and complaints regarding Doctors of Osteopathic Medicine (“DO”) licensed to practice in Arizona.  The Board has issued guidelines into the investigative process.  An investigation by the Board is initiated when; 1) a complaint is filed against a physician, 2) voluntary reporting, 3) or when other organizations are required by law to report a possible violation to the Board.  The Board has published Investigative Procedure Guidelines that list seven distinct stages of the complaint process.  The stages are as follows:

1.       Notification of an Investigation
2.       Processing of Information
3.       Board Review
4.       Case Review
5.       Investigative Hearing
6.       Formal Administrative Hearing
7.       Disposition of Cases

This post will examine the first stage of the complaint process.  A general time-line for the notification of an investigation stage is as follows:

1.       A complaint is received by the Board

2.       The complainant and physician are notified of the pending complaint by the Board through a letter

3.       The physician is asked to respond to the allegations within the complaint, including all pertinent information and medical records.

Prior to responding to the complaint it is imperative that the physician seek legal counsel.  Submitting a well-reasoned, persuasive response can sometimes be the difference between having the complaint dismissed versus being found to have committed an act of unprofessional conduct.

If you have any questions regarding a complaint with the Arizona Board of Osteopathic Examiners in Medicine and Surgery contact Attorney Robert Chelle.

Terminated for Accessing Confidential Electronic Health Records

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Three employees at the University Medical Center in Tucson were terminated for accessing the electronic health records (“EHR”) of a number of victims of last weekend’s shooting.  Nearly all hospitals employ electronic surveillance software that tracks which employees are accessing specific patient information.  This software is designed to make certain that only those giving direct care to the patient have access to the record.

All hospitals employ privacy policies that prohibit this behavior, however, it is inevitable that high profile patients will have their EHR viewed by hospital employees that are not directly giving them care.  Not only are these employees in violation of hospital policy, but they are also likely violating federal privacy laws that establish regulations for the use and disclosure of protected health information.

It is important that all health professionals in Arizona understand that viewing prohibited EHR will likely lead to termination and possibly discipline from their licensing board.  So, be careful and make certain you are only accessing records that you are authorized to view.

If you have a question about being terminated from a health care organization contact Arizona Attorney Robert Chelle.