ISSUES and ANSWERS
Vol 9 No 2
June 1998
Puzzling Paradoxes
by Gerald C. Zumwalt, M.D.
Board Secretary/Medical Advisor
A paradox is not just two MD's but involves two trends or ideas which seemingly contradict. Attending two recent annual meetings (one state and one national), I was struck by a pair of paradoxes presented at both levels.
First was the elevated level of professional accountability being imposed on physicians and the almost simultaneous granting of new privileges to other groups (R.N.s, P.A.s, Optometrists, etc.). We have seen the recently indefinite postponement of the E & M rules which could have made office medical records a standard for fraud. Both Oklahoma and California, among other states, have had criminal trials based on clinical acts by physicians. Malpractice trials increasingly emphasize punitive rather than actual damages.
At the same time we have had legalization in Oklahoma of laser surgery by optometrists, granting of prescriptive privileges to Advanced Practice Nurses and Physician Assistants, and establishment of remote practice sites where APNs and P.A.s work most of the time as near independent providers. Home health employees daily make life changing medical decisions with vastly varying degrees of physician input.
Not all of these changes are deleterious. Certainly adding immediate access to trained professionals is an improvement over inability to be examined due to geography or physical immobility and being forced to rely on family or media input to make health decisions. Change is neither inherently good or bad. Change is change. But as the King of Siam sang in The King and I, "Is a Puzzlement!"
The other wonderment occurred at the Oklahoma State Medical Association House of Delegates gathering when Nancy Dickey, President-Elect of the AMA, attacked the aforementioned and much maligned proposed E & M requirements since no doctors had been proven to have committed fraud in coding. Later, a resolution was proposed (not adopted) which called for permanently barring any physician from practicing after a conviction of felony fraud.
It brings to mind the paucity of volunteers the Board has had to serve as expert witnesses at hearings. The right of a profession to self-police depends on the public's trust and respect. If we don't clean up our own act, are we asking Congress to do it?
Medicine continues to be held at the apex of the public's opinion and adulation.
If we are to maintain this position, both professional and personal standards
must be upheld. Our staff would enthusiastically recruit all who would volunteer
to evaluate records and cases with an eye to dismissal or prosecution of complaint.
If we don't clean up our own act, are we asking Congress to do it?
Death Certificates and Declarations
by Susan Moebius Henderson,
Assistant Attorney General for the Board
Public complaints about physicians who fail to complete death certificates timely are on the rise as overdue death certificates increasingly become a sore point with bereaved family members. Many physicians seem unaware of the law in this area.
The Oklahoma Public Health Code requires the attending physician to complete and sign the medical certification portion of the death certificate WITHIN 48 HOURS of death unless the death is subject to investigation by the appropriate office of medical examiners. See 63 Okla. Stat. §1-317.
The funeral director is responsible for completing the personal data on the certificate and delivering it to the attending physician within 24 hours of death. Once the medical certification is complete, the funeral director is required by law to file the completed death certificate within three (3) days of death and prior to burial. In cases where compliance with these deadlines would result in undue hardship, the State Commissioner of Health may extend the times for completion and filing of the death certificate.
The patient's attending physician, defined by statute as the physician in charge of the patient's care for the illness or condition which resulted in death, has the obligation to complete the medical portion of the certificate unless he or she was not in attendance at the time of death. In that case, the physician in attendance at the time of death must complete the certificate, noting the name of the patient's attending physician on the form and that the information shown is only as reported.
While physicians have the exclusive obligation to complete the medical portion of a death certificate, they are not solely charged with making a declaration or pronouncement of death. See Oklahoma's Uniform Determination of Death Act, 63 Okla. Stat. §3121 et seq. The law requires only that the determination of death be made in accordance with accepted medical standards, presumably by someone capable of determining whether the person has sustained irreversible cessation of circulatory and respiratory functions or irreversible cessation of all brain functions.
The timely completion of a death certificate may seem an insignificant part of practice — one more piece of bothersome paperwork to be added to a continuously growing stack. However, the deadlines established by law are so clear that the habitual failure to complete medical certifications of death in a timely manner may be grounds for disciplinary action for unprofessional conduct involving the repeated negligence in the practice of medicine and surgery in violation of OAC 435-10-7-4(15) or the improper management of medical records in violation of OAC 435-10-7-4(36).
Board Meeting
May 28, 29, 1998
In a meeting devoted primarily to disciplinary matters, the Board addressed sundry concerns with the following results.
Two licenses, one M.D. and one Respiratory Care Practitioner, were surrendered in lieu of prosecution. The R.C.P. was charged with illegally obtaining a controlled drug; the physician with improperly prescribing controlled drugs.
Three licenses, M.D. and Physical Therapy, have been suspended while more specific information is being gathered. Personal chemical abuse, improper dispensing and/or prescribing of controlled drugs, and sexual misconduct have been alleged in these cases.
One Physician Assistant submitted to a Voluntary Submittal to Jurisdiction with standard post-treatment terms for addiction to controlled substances.
Like lemmings marching to the sea, three physicians were reprimanded for laxity in supervision of a Physician Assistant. Whether due to gullibility or laziness, all had left pre-signed blank prescriptions with available DEA numbers for the P.A. and failed to adequately review charts on patients seen by the P.A. Board members vocally admonished the doctors for taking lightly the effects that actions of any supervised allied professional can have on the supervisor's license. [See related article in this issue.]
Age Quod Agis
by Lyle Kelsey, CAE
Executive Director
Age quod agis is a Latin phrase for all supervising physicians of Physician Assistants to heed. Loosely translated, it means, "Pay attention to what you are doing." While the Physician Assistant laws have changed over the years to allow more expansion of duties including prescriptive authority and practice in remote clinical settings, the ultimate liability and responsibility still rests on the supervising physician (M.D. or D.O.). The P.A. law and rules require the supervising physician to sign the Physician Assistant's application and spell out the types of services they will provide, standing orders, protocols and appropriate drug formularies. The physician must also provide to the Medical Board the method(s) of supervision of the P.A. and the name of any alternate supervision physicians.
All supervising physicians need to read the P.A. law periodically to make sure they are in compliance and review the Pharmacy and OBNDD rules as well. Three physicians recently have been disciplined for leaving signed prescription blanks for their P.A. and for inadequate chart review of patients seen by the P.A.
Many managed care arrangements today place the physician in a situation where the P.A. is hired and paid by someone other than the supervising physician. The P.A. is then assigned to a physician for supervision. Keep in mind, it makes no difference to the Medical Board who pays the P.A.; all incidents of violation directly impact the physician supervising the P.A.
So in other words, when you think P.A., think Pay Attention!
Copies of the Physician Assistant law and rules are available by contacting
the Board of Medical Licensure and Supervision, 5104 North Francis, Suite C,
Oklahoma City, Oklahoma, 74154. Phone: 405-848-6841. FAX: 405-848-8240. E-mail:
osbmls@osbmls.state.ok.us.
Abused Adults
by Gerald C. Zumwalt, M.D.
Board Secretary/Medical Advisor
As a companion piece to the previously reviewed report on child abuse, the Department of Human Services has issued the Fiscal Year 1997 annual report on adult protective services.
Referrals to the department totaled 10,895 for 1997 and of these 56% concerned self-neglect, 19% caretaker neglect, 13% caretaker abuse and 12% exploitation. After investigation, 68% of complaints were substantiated.
As expected most (66%) were over 65 years of age. Race and gender reflected the population breakdown of Oklahoma. Abuse occurring in nursing homes is investigated by a different unit. This report does not reflect what groups initiated the complaints.
From the reports, "Oklahoma is a mandatory reporting state. The law requires anyone with knowledge of abuse, neglect or exploitation to report to the Department of Human Services or the office of the district attorney. . . . Good faith reporters are exempt from civil and criminal liability for their reporting efforts."
The full report is available in the Oklahoma City office.
Patient Records - Copies
This is a recent opinion from the Attorney General of Oklahoma. It should be noted that it only addresses a request for records from a patient. It also should be noted that failure to follow the law is a misdemeanor.
February 9, 1998 97-100
1. A doctor, hospital or medical institution may not charge a fee in excess of twenty-five cents ($0.25) per page for providing copies of a patient's medical records. 76 O.S. Supp. 1997, § 19(A).
2. A doctor, hospital or medical institution may charge a patient postage and handling to cover the actual costs of mailing medical records to the patient. Id.
3. A doctor, hospital or medical provider may not charge a handling fee for searching, retrieving, reviewing or preparing medical records in order to determine what medical records are to be copied. 76 O.S. Supp.1997, § 19(A). (JAMES ROBERT JOHNSON)
Oklahoma Pharmacy Act
Title 59 O.S. Chapt. 8
§ 355.1(B) A licensed practitioner desiring to dispense dangerous drugs pursuant to this section shall register annually with the appropriate licensing board as a dispenser. . . .
§ 355.1(C) A licensed practitioner who dispenses professional samples to patients shall be exempt from the requirement of subsection B of this section if:
1. The licensed practitioner furnishes the professional samples to the patient in the package provided by the manufacturer;
2. No charge is made to the patient; and
3. An appropriate record is entered in the patient's chart.
NOTICE
At this time of year most of the medical doctors in Oklahoma are filing their annual application for renewal of license. On the backside of the form is the statement, "I do/do not wish to be registered to dispense Dangerous Drugs."
Be aware under Oklahoma law there is a difference between Controlled (schedule I through V) drugs, which require DEA and OBNDD certificates to prescribe, and Dangerous Drugs. In Oklahoma Statutes, Title 59, Chapter 8_Drugs and Pharmacy, Oklahoma Pharmacy Act, section 353.1 (16) the definitions of "Dangerous Drug", "legend drug", and "prescription Drug" are the same. That is, any drug which requires a prescription to be dispensed is a dangerous drug. This definition is repeated and enforced in section 355 (1).
Section 355.1 lists the requirements for labeling all dispensed drugs, registering as a dispenser and exempting professional samples issued without charge. Therefore, any medical doctor dispensing any legend drug must be registered with this Board and must follow the laws of the Oklahoma Pharmacy Board as they address dispensing. We would strongly recommend obtaining and reading the Oklahoma Pharmacy Law book - 1997, compiled and published by the Oklahoma State Board of Pharmacy, if you intend to dispense any drugs other than over-the-counter medications.
In the interest of clarification, administering and prescribing are not the same as dispensing and, indeed, both of these are also defined in section 353.1 (7) and (13).
