Doctors fight ‘unfair, offensive’ proposals from Board of Registration

On a warm Friday afternoon in April, doctors, lawyers and health care administrators gathered in the bunker-like lobby of the Massachusetts Board of Registration in Medicine to offer their testimony about proposed changes to the Board’s regulations.

The atmosphere was tense: A sign on the door warned against “disruptive behavior,” and next to the sign-in desk stood a uniformed guard.

As the attendees waited their turn to pass through a locked door to enter the hearing room, a doctor quietly shared her opinion about the changes to a neighboring lawyer. “They don’t have the authority to do what they’re trying to do,” she whispered.

In the hearing room, the testimony directed at Martin Crane ­– who has since finished his term on the board – and Guy Fish, the only two members of the 7-person board who were present, was almost as blunt.

“We are objecting to the holding of this hearing,” said Bruce S. Auerbach, the president of the Massachusetts Medical Society and the most vocal critic of the new regulations. “Our concerns remain substantial and pervasive.”

Over the course of the hearing, that sentiment was echoed again and again.

William Scott Liebert, an attorney who frequently represents doctors before the Board, testified that “the new regulations constitute a list of ‘thou shalt nots’” which “go beyond the Board’s statutory authority” and “offend doctors and their advocates.”

Paul G. Gitlin, an attorney at Rubin & Rudman in Boston who served as Chairman of the Board in 1994 and 1995, told the Board that its relationship with doctors had reached its “nadir.”

Debra A. Grossbaum, an attorney at the Physician Health Services, an organization founded by the Massachusetts Medical Society that provides services to physicians facing health concerns related to substance abuse and mental health, said that the Board’s changes to the regulations seemed to be an attempt to “codify what happens in case law, which is a really dangerous regulation to enact.”

And Regina S. Rockefeller, an attorney at Nixon Peabody in Boston, told the Board that the new regulations would allow it “to discipline physicians in whatever way the Board’s zealous prosecutors may choose and without reasonable advance warning to physicians of the standards of conduct to be applied.”

Ongoing controversy

The controversy over the proposed regulations has been simmering since 2005, when the independent body of seven gubernatorial appointees decided to review its rules for licensing and overseeing doctors and medical professionals – rules that are tantamount to law and haven’t been substantially updated in 20 years.

In 2005 and 2006, the Board presented drafts of new regulations at public hearings and information sessions, and received a storm of criticism in response.

After a two-year delay, the latest incarnation of the proposed changes purportedly addressed those criticisms. But the outcry from the medical community suggests otherwise.

“My hope following [the most recent] meeting is that the Board will table these regulations and enter into some dialogue with the parties that the regulations pertain to,” Liebert told Massachusetts Medical Law Report.

Further complicating the conflict is the fact that the membership of the Board is in flux.

In April, the Board’s executive director, Nancy Achin Audesse, who is widely considered to be the force behind the new regulations, announced that she would be retiring.

Her departure could either stall the new regulations or hasten their passage, if Audesse decides to make them a part of her legacy.

At press time, a spokeswoman for Governor Deval L. Patrick confirmed that the governor had appointed three new members to the Board, and sources with knowledge of the Board’s internal workings said that several members who are serving expired terms had announced that they would be leaving, including Crane, who was present for the testimony.

Opponents of the regulations have long argued that because the Board is in flux, it should not be writing new regulations at all.

“We still feel that they shouldn’t be putting forth any new regulations until they are a complete Board,” Auerbach said in an interview in May.

More grounds for discipline

Critics of the proposed regulations cite numerous issues in the 117-page draft.

Rockefeller and Paul R. Cirel, a partner at Dwyer & Collora in Boston, lament the removal of language in the current regulations that guarantees “fundamental fairness” to physicians and patients.

“You had to make a conscious decision to eliminate that,” said Cirel. “And I find that troublesome.”

Many take issue with the placement of the chapter on disciplinary proceedings, which has been put in a position of prominence as the first in the regulations.

That chapter also adds 11 additional grounds for discipline to the current list of 18, and “we think that sets kind of an unfortunate tone,” says Karen S. Nelson, the senior Vice President for Clinical Affairs at the Massachusetts Hospital Association. “[The proposals would] double the grounds of events and behaviors [for discipline], and some of them are so broad as to be completely unrelated to the practice of medicine.”

In particular, according to Cirel, the addition of “engaging in conduct that demonstrates a lack of good moral character” to the list of grounds for discipline is concerning.

Under such a rule, he said, a physician could lose his license for having an extramarital affair, even if it had nothing to do his professional life, opening him up to receiving “letters from every divorce lawyer in town.”

Anuj K. Goel, a lawyer who represents the Massachusetts Hospital Association, said that such undefined terms will cause immense practical problems for hospital administrators and counsel.

“What is ‘good moral character’? They give us no information or guidance or understanding. It’s a vague term that shouldn’t be in there,” he said.

Hospital, physician concerns

Another issue of special concern to hospitals, Goel added, is the chapter on Patient Care Assessment Programs, which requires that health care facilities make regular reports to the Board despite the fact that other government agencies already require incident reports from hospitals.

“Our comment here is: Don’t create duplicative reporting,” he said. “We think that, as it is written now, it adds a lot of additional reporting requirements.”

In interviews, attorneys who represent physicians expressed concern that the proposed regulations restrict doctors’ – and their advocates’ – right to information.

“Physicians should be given the information against them so that they have the full opportunity to respond,” Grossbaum said. “The way these rules are written, there doesn’t seem to be recognition of the right on the part of physicians [to be made aware] of the complaint against them.”

Liebert agreed.

“It has become increasingly difficult to provide a doctor with meaningful representation where the Board will not release basic information,” Liebert said. “They will not even, in some cases, state what the allegations are against the doctor, the facts that they believe support discipline or even what disciplinary action they are recommending to the Board’s complaint division.”

Comments under review

Since the medical community aired its concerns at the public hearing in oral and written testimony, the Board has been reviewing the comments and considering whether to make changes to the regulations in response, said Russell D. Aims, a spokesman for the Board.

If the Board votes to adopt the regulations, he said, they must then be approved by the Department of Public Health (DPH) and the Executive Office of Health and Human Services (EOHHS).

There is no timeline for this process, but it’s unlikely that it would be halted in response to negative comments from the public, Aims said.

“I think it’s unlikely, just because so much effort has gone into drafting the draft, vetting it publically, going through the process of board consideration, and public hearing review by other agencies,” he said. “We’re pretty far down the road, so unless something really substantive would be raised, there wouldn’t be any need to table it.”

If the Board does not make certain changes, however, some critics might pursue other ways of preventing the passage of the regulations.

William J. Ryder, the State Legislative and Regulatory Affairs Counsel at the Massachusetts Medical Society, said that his organization would lobby DPH to reject the changes and would work “legislatively, in the courts and through new appointments” to prevent their passage.

Indeed, in late May, sources said, a group of opponents to the regulations met with representatives of DPH and EOHHS to urge the agencies to defer final consideration of the new regulations until after the new board members have a chance to consider the substantial feedback.

With change in the air at the Board, it’s possible that such tactics would succeed. At press time, several experts expressed cautious optimism that the newly-constituted Board would table the new regulations for further review at its next meeting, scheduled for June 18.

“They can do whatever they want,” Ryder added. “But one way or another there’s going to be different people on that Board in the very near future, and those people can be expected to listen to the legitimate concerns of the community.”

Questions or comments should be directed to the
writer at: julia.reischel@lawyersweekly.com