A performance audit of the Board of Osteopathic Examiners

              STATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
A PERFORMANCE AUDIT
OF THE
BOARD OF OSTEOPATHIC EXAM1 NERS
IN MEDICINE & SURGERY
DECEMBER 1981
A REPORT TO THE
ARIZONA STATE LEGISLATURE
REPORT 81 - 1 6
STATE OF ARIZONA
DOUGLAS R. NORTON. CPA
AUDITOR GENERAL
OFFICE OF THE
AUDITOR GENERAL
December 10, 1981
Members of the Arizona Legislature
The Honorable Bruce Babbitt, Governor
Richard 0. McGill, D. O., Secretary- Treasurer
Board of Osteopathic Examiners i n Medicine and Surgery
Transmitted herewith is a report of the Auditor General, A Performance
Audit of the Board of Osteopathic Examiners i n Medicine and Surgery. This
report is i n response to a January 30, 1980, resolution of the Joint
Legislative Oversight Committee. The performance audit was conducted as a
part of the Sunset review s e t f o r t h i n A. R. S. 5541- 2351 through 41- 2379.
The blue pages present a summary of the report; a response from the
President, Michael Mignella, J. D., and the Secretary- Treasurer of the
Board is found on the yellow pages preceding the appendices.
My s t a f f and I w i l l be pleased t o discuss or c l a r i f y items i n t h e r e p o r t .
S t a f f : Gerald A. Silva
Coni Rae Good
Peter N. Francis
Samuel L. Harris
Phyllis Faust
Enclosure
Respectfully submitted,
~ o u ~ l Ra. sN orton
Auditor General
LEGISLATIVE SERVICES WING SUITE 200 STATE CAPITOL PHOENIX. ARIZONA 85007 255- 4385
OFFICE OF THE AUDITOR GENERAL
A PERFORMANCE AUDIT OF THE
BOARD OF OSTEOFATHIC EXAMINERS IN MEDICINE AND SURGERY
A REPORT TO THE
ARIZONA STATE LEGISLATURE
REPORT 81- 16
TABLE OF CONTENTS
SUMMARY
INTRODUCTION AND BACKGROUND
SUNSET FACTORS
FINDINGS
FINDING I
Improvements are needed in the Board's investigation
and resolution of complaints in order for it to
comply with statutory requirements and protect the
public adequately.
CONCLUSION
RECOMMENDATIONS
FINDING I1
Combining the Board of Osteopathic Examiners in
Medicine and Surgery and the Board of Medical
Examiners would improve the Osteopathic Board's
effectiveness and accessibility to the public.
CONCLUSION
RECOMMENDATION
FINDING I11
Changes are needed in Board statutes pertaining
to continuing education requirements and Board
member compensation.
CONCLUSION
RECOMMENDATIONS
OTHER PERTINENT INFORMATION
Survey of Complainants and Physicians
Board Jurisdiction in Fee Matters
WRITTEN RESPONSE TO THE AUDITOR GENERAL REPORT
Page
i
1
3
APPENDICES
APPENDIX I - Legislative Council Opinion 0- 81- 66, July 22, 1981
APPENDIX I1 - Legislative Council Opinion 0- 81- 75, August 4, 1981
APPENDIX I11 - Legislative Council Opinion 0- 81- 74, July 31, 1981
APPENDIX IV - Legislative Council Opinion 0- 81- 77, August 12,
1981
APPENDIX V - Legislative Council Opinion 0- 81- 81, August 18,
1981
APPENDIX VI - Legislative Council Opinion, 0- 80- 44, July 10, 1981
LIST OF TABLES
TABLE 1
Board Expenditures and Revenues: Fiscal Years 1976- 77
through 1980- 81
TABLE 2
Level of Board Activity
TABLE 3
Nature of Complaints received by the Board in 1979 and 1980
TABLE 4
Comparison of Board of Osteopathic Examiners and Board of
Medical Examiners statutory functions
TABLE 5
Summary of regulatory board composition for osteopathic
physicians and medical doctors in the 50 states and the
District of Columbia
TABLE 6
Board composition and ratio of medical doctors to
osteopathic physicians in Arizona and ten states with
composite boards surveyed
TABLE 7
Summary of continuing education hour requirements for
osteopathic physicians in the 50 states
TABLE 8
Summary of surveyed complainant and osteopathic
physician opinions of the Board's complaint review
process
Page
2
SUMMARY
The Office of the Auditor General has conducted a performance audit of the
Board of Osteopathic Examiners i n Medicine and Surgery i n response to a
January 30, 1980, resolution of the Joint Legislative Oversight
Committee. This performance audit was conducted as part of the Sunset
review s e t forth i n Arizona Revised S t a t u t e s ( A. R. s. ) 5541- 2351 through
41- 2379
The Board of Osteopathic Examiners i n Medicine and Surgery was established
i n 1949 to examine and license osteopathic physicians and to protect the
public from incompetent and harmful p r a c t i t i o n e r s . Its membership
consists of four licensed osteopathic physicians and one public member.
A l l members are appointed by the Governor to five- year terms.
Our review found t h a t improvements are needed i n the Board's complaint
review process i n order f o r it to comply with s t a t u t o r y requirements and
adequately p r o t e c t t h e public. The Board has delegated excessive
complaint review authority to its s t a f f secretary- treasurer; has violated
t h e c o n f i d e n t i a l i t y provisions of A. R. S. 532- 1855, subsection A, by
sending complaints signed by the complainant to physicians involved i n the
complaint; and has exceeded i t s authority by requesting doctors involved
i n complaints to refund money or adjust fees. Furthermore, the Board's
secretary- treasurer appears to have a conflict of i n t e r e s t , which has not
been declared, i n cases involving p a t i e n t s treated a t Phoenix General
Hospital since he is Medical Director a t that hospital. ( page 7)
Although the Board took 11 d i s c i p l i n a r y a c t i o n s during the period January
1979 through March 1981, i n only one of these cases had a complaint f i l e
been established by the Board. The one case f o r which a complaint f i l e
was available related to a 1978 complaint. Of the 106 complaints received
by the Board i n 1979 and 1980, and for which f i l e s were a v a i l a b l e , t h e
Board did not impose any o f f i c i a l sanctions. We found that the Board
lacks adequate resources to thoroughly investigate complaints, and,
therefore, is unable to f u l l y protect the public. ( page 17)
I f the Board is continued as a separate entity, we recommend that:
1) every complaint be reviewed and resolved by the f u l l Board,
2) complainant names not be disclosed to doctors involved in the complaint
i n compliance with A. R. S. $ 32- 1855, subsection A, 3) the Board
discontinue requesting doctors who overcharge patients to adjust f e e s o r
refund money to patients, 4) reports from other agencies concerning
possible violation by physicians be documented i n a complaint f i l e ,
5) the secretary- treasurer declare his conflict of i n t e r e s t and refrain
from involvement i n complaints involving care a t Phoenix General
Hospital, 6) A. R. S. $ 32- 1825, subsection B, be amended to remove the
current $ 50 ceiling on license renewal fees, and 7) the Board be
appropriated funds to hire a part- time or full- time investigator.
( page 24)
A s an a l t e r n a t i v e , we recommend that the Board of Osteopathic Examiners
and the Board of Medical Examiners be combined into a single regulatory
unit. Combining Boards would improve the Osteopathic Board's
effectiveness and a c c e s s i b i l i t y to the public. Thirty s t a t e s and the
District of Columbia license and regulate osteopathic physicians and
medical doctors, both of whom have the same scope of practice, through a
composite board. A survey of ten s t a t e s with composite boards disclosed
no adverse consequences or professional f r i c t i o n resulting from regulation
of osteopathic physicians and medical doctors by the same board provided
osteopathic physicians are adequately represented on the Board. ( page 27)
Under Arizona law, osteopathic physicians are required to attend a two day
( 12 hour) educational program prior to renewing t h e i r license each year.
Our review indicated that changes are needed i n Board s t a t u t e s pertaining
to continuing education since: 1) the Board lacks sufficient authority to
waive the requirement or grant extensions, and 2) most s t a t e s which have
a continuing education law f o r osteopathic physicians require more hours
than Arizona. We recommend that A. R. S. $ 32- 1825 be amended to either:
1) allow the Board more f l e x i b i l i t y i n granting waivers and extensions on
an annual basis, or 2) require that continuing education be reported
every three years rather than annually. We also recommend that the Board
be allowed to set the minimum continuing education requirement through its
rule making authority. ( page 39)
F i n a l l y , Board members have been receiving $ 30 per day compensation
c o n s i s t e n t with most other s t a t e regulatory agencies. Board s t a t u t e s ,
however, s e t the compensation r a t e a t $ 50 per day. A s a r e s u l t , Board
members were underpaid a t o t a l of $ 1,060 i n f i s c a l year 1980- 81. We
recommend t h a t Board s t a t u t e s p e r t a i n i n g t o compensation of members be
brought i n t o conformity w i t h p r o v i s i o n s applicable t o other regulatory
boards. ( page 43)
INTRODUCTION AND BACKGROUND
The Office of the Auditor General has conducted a performance audit of the
Board of Osteopathic Examiners i n Medicine and Surgery, i n response to a
January 30, 1980, resolution of the Joint Legislative Oversight
Committee. This performance audit was conducted as part of the Sunset
review set forth i n Arizona Revised Statutes ( A. R. s. ) $$ 41- 2351 through
41- 2379
Osteopathic medicine is a branch of medical science founded i n the l a t e
19th century i n reaction to the widespread, unscientific use of drugs for
the treatment of disease. In its early days, osteopathic physicians
shunned the use of most drugs, stressing instead the benefits of treating
disease through manipulation of the musculo- skeletal system. Osteopathic
physicians today, however, use a l l current medical treatment methods,
including drugs, surgery and radiation.
From 1913 to 1948, osteopathic physicians i n Arizona were licensed by the
Board of Medical Examiners. In 1949, however, the Legislature passed SB
100, establishing a separate Osteopathic Board of Registration and
Examination. The purpose of the Board is to examine and license
osteopathic physicians and surgeons, to renew licenses annually, to review
complaints and hold hearings and to enforce the standards of practice of
the osteopathic profession. The Board is comprised of five members, of
whom four are licensed, practicing osteopaths and one is a representative
of the public.
Staffed by two full- time employees, the Board operates on an annual
General Fund appropriation. A s shown i n Table 1, Board expenditures have
increased from $ 35,140 i n f i s c a l year 1976- 77 to $ 53,602 i n 1980- 81.
Ninety percent of examination and licensing fees received by the Board are
deposited i n a special Board fund to support its operation.
TABLE 1
BOARD EXPENDITURES AND REVENUES:
FISCAL YEARS 1976- 77 THROUGH 1980- 81
Expenditures ' 76- 77 ' 77- 78 ' 78- 79 ' 79- 80 ' 80- 81
Personal services $ 23,906
Employee- related 3,356
Professional and outside
services 352
Travel:
In- State 1,168
Out- of- State 471
Other operating expenses 5,887
Total expenditures ' m
Revenues
Board a c t i v i t y has remained r e l a t i v e l y s t a b l e i n recent years, as shown in
Table 2.
TABLE 2
LEVEL OF BOARD ACTIVITY
Activity
Fiscal Years
1976- 77 1977- 78 1978- 79 1979- 80 1980- 81
New licenses issued 7 5 85 5 9 75 6 4
Licenses renewed 1,007 1,050 1,075 1,108 1,147
Board meeting and hearing days 8 15 13 9 11
Complaints received 5 6 5 6 22 68 61
rll
The Auditor General expresses appreciation to the members of the Board and
the Board s t a f f f o r t h e i r cooperation and assistance during the course of
our audit . a
SUNSET FACTORS
Nine f a c t o r s were considered to determine, i n p a r t , whether the Board of
Osteopathic Examiners i n Medicine and Surgery should be continued or
terminated, i n accordance with Arizona Revised Statutes ( A. R. s.) $$ 41- 2351
through 41- 2379.
SUNSET FACTOR: THE OBJECTIVE AND PURPOSE
I N ESTABLISHING THE BOARD
Statutes do not s t a t e e x p l i c i t l y the purpose of the Board. However,
A. R. S. $ 32- 1803 e s t a b l i s h e s d u t i e s of the Board:
" A. The Board s h a l l :
" 1. Conduct a l l examinations f o r applications f o r
a license under t h i s chapter, i s s u e l i c e n s e s , conduct
hearings, place physicians on probation, revoke or
suspend licenses, and administer and enforce a l l
provisions of t h i s chapter.
" 2. Be charged with and enforce within the
osteopathic profession i n t h i s s t a t e the standards of
practice prescribed by t h i s chapter and the rules and
regulations adopted by the board pursuant t o the
authority granted by t h i s chapter."
In addition, the following goals of the Board were s t a t e d i n the Board's
f i s c a l year 1980- 81 budget:
" The goal of the Board of Osteopathic Examiners i n
Medicine and Surgery is t o provide for the people of
Arizona the highest quality of osteopathic medical
care. To accomplish t h i s goal, the Board carefully
reviews the q u a l i f i c a t i o n s of applicants f o r licensure,
i n v e s t i g a t e s complaints, holds hearings when necessary
to determine i f an e x i s t i n g l i c e n s e should be suspended
or revoked and i n general exerts supervision over the
osteopathic profession t o ensure adherence to the
prescribed standards of practice."
SUNSET FACTOR: THE DEGREE TO WHICH
THE BOARD HAS BEEN ABLE TO RESPOND TO
THE NEEDS OF THE PUBLIC AND THE
EFFICIENCY WITH WHICH IT HAS OPERATED
The Board has not been fully responsive to the needs of the public due to
a lack of investigative resources and limited accessibility. See pages 17
and 32. The Board appears to have operated efficiently. The only change
in Board staffing in the past 30 years has been the addition of an
administrative assistant in spite of a four- fold increase in the number of
Board licensees.
SUNSET FACTOR: THE EXTENT TO WHICH THE
BOARD HAS OPERATED WITHIN THE PUBLIC INTEREST
The ~ oard's current complaint- review procedures are not in compliance with
law or in the public interest. The Board secretary- treasurer has resolved
most of the Board's complaints on his own, without full Board
involvement. In addition, a few of the complaints involved patients
treated at Phoenix General Hospital, where the secretary- treasurer is
employed as Medical Director. This apparent conflict of interest has not
been declared.
SUNSET FACTOR: THE EXTENT TO WHICH
RULES AND REGULATIONS OF THE BOARD ARE
CONSISTENT WITH LEGISLATIVE MANDATE
In 1980, a law clerk working for the Attorney General reviewed the Board's
rules and regulations in detail and recommended amending Rule ~ 4- 22- 05(~)
to establish specifically the Federation Licensing Exam ( FLEX) as the
Board's written examination. He also recommended that the Board repeal
Rule ~ 4- 22- 06(~), ( I), ( 2) and ( 3) pertaining to advertising, because it
is unconstitutional.
SUNSET FACTOR: THE EXTENT TO WHICH THE BOARD
HAS ENCOURAGED INPUT FROM THE PUBLIC BEFORE
PROMULGATING ITS RULES AND REGULATIONS AND
THE EXTENT TO WHICH IT HAS INFORMED THE PUBLIC
AS TO ITS ACTIONS AND THEIR IMPACT ON THE PUBLIC
A survey by the Office of the Auditor General indicates that the Board has
met the statutory requirement to post notice of meetings and rule changes,
and has publicized its activities in the State professional association
newsletter. However, the Board has not exceeded the minimal statutory
requirement with regard to informing the public, and public awareness of
the Board appears to be low when compared to public awareness of the Board
of Medical Examiners. ( page 33)
SUNSET FACTOR: THE EXTENT TO WHICH THE
BOARD HAS BEEN ABLE TO INVESTIGATE AND
RESOLVE COMPLAINTS THAT ARE WITHIN ITS JURISDICTION
Board complaint- review procedures are not in compliance with law, and the
Board lacks investigative resources to investigate and resolve complaints
and protect the public adequately. ( pages 10 and 17)
SUNSET FACTOR: THE EXTENT TO WHICH THE
ATTORNEY GENERAL OR ANY OTHER APPLICABLE
AGENCY OF STATE GOVERNMENT HAS THE AUTHORITY
TO PROSECUTE ACTIONS UNDER ENABLING LEGISLATION
According to the Board's assistant Attorney General, the Board lacks clear
authority to enforce its own orders, because violations of Board orders
are not established specifically in statute as a cause for disciplinary
action.
SUNSET FACTOR: THE EXTENT TO WHICH THE
BOARD HAS ADDRESSED DEFICIENCIES IN ITS
ENABLING STATUTES WHICH PREVENT IT FROM
FULFILLING ITS STATUTORY MANDATE
In 1979, the Board suggested legislation to: 1) require mandatory
reporting of incompetent physicians by the Arizona Osteopathic Medical
Association and health care institutions, 2) enable the Board to conduct
informal interviews with physicians and to censure or place physicians on
probation following such interviews, and 3) to establish advertising in a
" false, deceptive or misleading manner" as unprofessional conduct subject
to disciplinary action. The legislation was passed as part of House Bill
2067 and signed by the Governor on April 17, 1979.
SUNSET FACTOR: THE EXTENT TO WHICH
CHANGES ARE NECESSARY IN THE LAWS OF
THE BOARD TO ADEQUATELY COMPLY WITH
THE FACTORS LISTED IN THIS SUBSECTION
Our review determined that additional statutory changes are needed if the
Board is continued as a separate entity. ( pages 25 and 45)
FINDING I
IMPROVEMENTS ARE NEEDED I N THE BOARD'S INVESTIGATION AND RESOLUTION OF
COMPLAINTS I N ORDER FOR IT TO COMPLY WITH STATUTORY REQUIREMENTS AND
PROTECT THE PUBLIC ADEQUATELY.
The Board of 0s teopa thic Examiners i n Medicine and Surgery is responsible
for investigating complaints against osteopathic physicians. A. R. S.
$ 32- 1855 establishes procedures for reviewing complaints and authorizes
the Board to take disciplinary action. Our review of the Board's
performance i n resolving complaints revealed:
- Most of the complaints received by the Board during 1979 and 1980
pertained to physician's fees ( 42 percent), quality of care ( 17
percent) and the necessity of services provided ( 15 percent).
- From January 1979 to March 1981, the Board placed three
physicians on probation, ordered six summary supensions, revoked
one license and accepted one permanent resignation. However, the
Board did not establish complaint f i l e s f o r ten of these eleven
cases. The one case for which a complaint f i l e was available was
related to a 1978 complaint. Of the 106 complaints the Board
received during 1979 and 1980, and for which complaint f i l e s were
available, the Board did not impose any o f f i c i a l sanctions.
- The Board has delegated excessive complaint review authority and
responsibility to its secretary- treasurer.
- The Board violates the c r n f i d e n t i a l i t y provisions of A. R. S.
$ 32- 1855, subsection A, when it routinely sends complaints which
are signed by the complainant to the physician named i n the
complaint.
- The Board exceeds its authority when it requests doctors involved
i n complaints to refund money or adjust fees.
- The Board's secretary- treasurer appears to have a conflict of
i n t e r e s t when complaints involve patient care a t Phoenix General
Hospital, because he is the Medical Director a t that hospital.
The above deficiencies appear to: 1) be the result primarily of limited
Board resources, 2) increase the ~ oards' exposure to legal challenge,
and 3) impair the Board's ability to protect the public.
The Board Has Authority to Investigate
Complaints and Discipline Physicians
A. R. S. $ 32- 1855, subsection A, establishes the Board's authority to
investigate complaints against osteopathic physicians:
" A. The board on its own motion may investigate any
information which appears to show that an osteopathic
physician and surgeon is or may be guilty of
unprofessional conduct or is or may be mentally or
physically unable safely to engage in the practice of
medicine. Any osteopathic physician or surgeon or the
Arizona osteopathic medical association or any health
care institution as defined in $ 36- 401 shall, and any
other person may, report to the board any information
such physician or surgeon, association, health care
institution or such other person may have which appears
to show that an osteopathic physician and surgeon is or
may be guilty of unprofessional conduct or is or may be
mentally or physically unable safely to engage in the
practice of medicine. ..."
The Board has established general procedures for handling complaints:
1. When received, the complaint is assigned a complaint number and
documented in a log.
2. The complaint is reviewed by the Board's staff
secretary- treasurer, an osteopathic physician, who normally sends
a copy of the signed complaint to the cited doctor for a response.
3. The doctor's response and supporting medical information is
reviewed by the secretary- treasurer.
4. On occasion, the complaint is sent to a Board member or the
Attorney General for review.
5. The secretary- treasurer makes a determination a s t o how to
resolve the complaint, and a l e t t e r of decision is sent to the
complainant. The l e t t e r may include a copy of the doctor's
rebuttal.
6. The secretary- treasurer may bring the complaint to the f u l l Board
for review.
Following an informal interview with the physician or a hearing, the Board
may: 1) dismiss the complaint, 2) issue a decree of censure, 3) place
the doctor on probation, or 4) suspend, o r 5 ) revoke the doctor's
license. A license can be suspended or revoked only a f t e r a formal
hearing.
Nature of Complaints Received by the Board
We reviewed a l l 106 complaints received by the Board during 1979 and
1980. A s shown i n Table 3, 42 percent of the complaints pertained to
physician fees, 17 percent pertained to the quality of care provided to
patients, and 15 percent pertained to the necessity of services provided.
TABLE 3
NATURE OF COMPLAINTS RECEIVED BY THE
BOARD I N 1979 AND 1980
Nature of Complaint
Physician' s fee
Quality of care
Necessity of services provided
Overprescribing drugs
Failure to diagnose correctly
Unethical behavior
Advertising
Other
Not available for review
Total
Number Percentage
For d e t a i l s regarding the Board's unclear jurisdiction i n fee matters, see
page 48.
D i s ~ o s i t i o n of Com~ laints Received
By the Board During 1979 and 1980
From January 1979 to March 1981, the Board placed three physicians on
probation, ordered s i x summary suspensions, revoked one license and
accepted one permanent resignation. In only one case reported t o the
Board i n 1978, however, was the information documented i n a complaint
f i l e , despite the f a c t that violations were substantiated and d i s c i p l i n a r y
action was taken by the Board. A s a r e s u l t , it is not possible to
determine s p e c i f i c a l l y when and by whom such reports have been f i l e d , how
many other such reports have been received by the Board and whether or not
they were investigated.
Our review of the 106 complaints received during 1979 and 1980, and for
which complaint f i l e s were a v a i l a b l e , revealed that the Board did not
impose o f f i c i a l d i s c i p l i n a r y sanctions, t h a t is, revocation, suspension,
probation or censure, against any of the doctors involved i n the
complaints.
Excessive Authority and Responsibility are
Vested with the Board's Secretary- Treasurer
The Board has given t h e s e c r e t a r y - t r e a s u r e r , who has been employed by the
Board since 1967, excessive complaint- handling r e s p o n s i b i l i t y . For
example, Board minutes i n d i c a t e t h a t i n 1977 the Board delegated to the
secretary- treasurer authority to informally hear minor complaints received
by the Board. Such action appears to have been approved by the a s s i s t a n t
Attorney General then assigned to the Board.
However, according to t h e L e g i s l a t i v e Council i n an opinion dated July 22,
1981, the secretary- treasurer does not have authority to review and
resolve complaints:
" The secretary- treasurer has only those powers and
duties as prescribed by s t a t u t e . A. R. S.
sections 32- 1804 and 32- 1855.01 set forth the duties of
the secretary- treasurer. They are nondiscretionary and
ministerial i n nature. The secretary- treasurer does
not have the authority to review complaints against
osteopathic physicians and surgeons. It is the
responsibility of the board to investigate complaints
against osteopathic physicians and surgeons.""
Furthermore, the Board cannot delegate t h i s responsibility to the
secretary- treasurer:
".... An administrative board cannot legally confer
upon its employees authority that under law may be
exercised only by the board.... 2 Am. Jur. 2d
Administrative Law section 222 ( 1962).
" The Board cannot authorize the secretary- treasurer to
act i n its behalf by reviewing and resolving complaints
against osteopathic physicians and surgeons because the
l e g i s l a t u r e made the board responsible for enforcing
the standards of practice within the osteopathic
profession and investigating complaints. A. R. S.
sections 32- 1803, subsection A, paragraph 2 and 32- 1855.
" The Legislature apparently intended those
functions to be performed by the persons
designated as members of the Board.
"[ 1] f it is reasonable to believe the l e g i s l a t u r e
intended a particular function to be performed by
designated persons because of t h e i r special
qualifications, then a subdelegation is invalid;
but where no particular qualifications are
necessary for the exercise of a function its
exercise may be delegated to subordinate
o f f i c i a l s . Sutherland, Statutes and Statutory
Construction section 4.14 ( 4th ed., Sands, 1972).
" The board cannot delegate its enforcement
r e s p o n s i b i l i t i e s t o the secretary- treasurer."
Because the secretary- treasurer resolves most complaints on his own
without Board involvement, his decisions are not checked to determine i f
they are f a i r and appropriate.
* For opinion text, see Appendix I.
We surveyed every complainant and physician involved i n complaints i n 1979
and 1980. * Although most physician respondents ( more than 80 ~ e r c e n t )
were s a t i s f i e d with Board handling of t h e i r complaints, about one- third of
the complainant respondents s a i d t h e f a i r n e s s of the review and the
Board's decision were " poor" or " very poor". A few complainants
s p e c i f i c a l l y c r i t i c i z e d t h e s e c r e t a r y - t r e a s u r e r ' s handling of t h e i r
complaints. For example:
" The a t t i t u d e , and I believe it was t h e s e c r e t a r y of
the Board, was defensive and an apparent attempt to
cover up f o r the physician."
" The gentleman c a l l i n g to inquire about the case could
be more kind and sympathetic. In my case, he t r i e d to
get me to change my mind and ended up arguing f o r 30
minutes over the phone."
According to t h e L e g i s l a t i v e Council, it is the r e s p o n s i b i l i t y of the
Board to review and resolve complaints. Review of complaints by the f u l l
Board is more l i k e l y to be f a i r t o complainants, because Board membership
includes one lay member who is independent of the osteopathic profession.
Sending Signed Complaints to
Physicians Violates C o n f i d e n t i a l i t y
The practice of sending copies of signed complaints to the doctors
involved v i o l a t e s s t a t u t o r y c o n f i d e n t i a l i t y provisions. A. R. S. $ 32- 1855,
subsection A, s t a t e s t h a t :
"...... Any person who reports or provides information
to the board i n good f a i t h s h a l l not be subject to an
action f o r c i v i l damages as a r e s u l t thereof and such
person's name s h a l l not be disclosed unless such
person's testimony is e s s e n t i a l to the d i s c i p l i n a r y
proceedings conducted pursuant to t h i s section."
* Survey r e s u l t s are presented i n d e t a i l on page 47.
12
According to the Legislative Council in an opinion dated August 4, 1981:
" The meaning of the language in A. R. S. section 32- 1855,
subsection A prohibiting disclosure of names is clear.
The name of any person who reports or provides
information to the Board in good faith shall not be
disclosed unless such person's testimony is essential
to a disciplinary proceeding conducted pursuant to
A. R. S. section 32- 1855. Giving the language of this
statute its plain meaning does not result in impossible
or absurd consequences.
" The Board's practice of sending a copy of the signed
complaint to the osteopathic physician involved in the
complaint for the purpose of resolving the complaint
without any formal Board action does not comply with
A. R. S. section 32- 1855, subsection A. In cases where
the Board takes formal action under A. R. S.
section32- 1855 disclosure of the name of the
complainant may be necessary to advise the accused
physician of the charges against him. See 61 Am. Jur.
2d Physicians, Surgeons, etc. sections 105 and 114
( 1962). "*
According to the Board ' s assistant Attorney General, disclosing names of
complainants to doctors involved in the complaint could have the effect of
discouraging patients from filing complaints with the Board. Although
half the complainants surveyed ( 49 percent) rated confidentiality of the
Board's complaint investigation as " good" or " very good", some
complainants ( 13 percent) thought confidentiality was poorly maintained.
One complainant stated the following:
" There was no confidentiality because [ the] Board sent
copies of my letters to the doctor... to get both sides
of the story and our arguments."
" For opinion text, see Appendix 11.
Of complainants responding to the survey 38 percent said they would not
f i l e another complaint with the Board. Lack of c o n f i d e n t i a l i t y may be one
reason three complainants s t a t e d t h a t , as a r e s u l t of f i l i n g complaints,
t h e i r r e l a t i o n s h i p s with t h e i r physicians had been impaired. Although
f i l i n g a complaint i n i t s e l f may s t r a i n a p a t i e n t ' s r e l a t i o n s h i p with h i s
doctor, sending a copy of the complaint signed by t h e p a t i e n t to the
doctor is more l i k e l y to r e s u l t i n f r i c t i o n , i l l - f e e l i n g s and subsequent
problems f o r the p a t i e n t .
Board Lacks Authoritv to
Request Fee Adjustments
The Board on occasion has requested physicians to adjust t h e i r f e e s o r to
refund money. According t o the Legislative Council i n an opinion dated
July 31, 1981, the Board does not have authority to take such action:
" After an informal interview with the physician
concerned the Board may issue a decree of censure or
f i x a period and terms of probation, or both. After a
formal hearing the Board may s u b j e c t t h e physician to
any one or more of the following: censure, probation,
suspension of license or revocation of license. The
Board only has authority to d i s c i p l i n e osteopathic
physicians as provided i n A. R. S. section 32- 1855. The
Board does not have authority to notify the complainant
t h a t the fee is excessive and request an osteopathic
physician to adjust the fee or refund the overcharge.""
* For opinion t e x t , see Appendix 111.
14
Board's Secretarv- Treasurer ADDears To Have
a Conflict of Interest Which Has Not Been Declared
The Board's secretary- treasurer appears to have a conflict of interest
which has not been declared. The secretary- treasurer works for the Board
and, a t the same time, serves as Medical Director for Phoenix General
Hospital ( osteopathic). In the l a t t e r capacity he is responsible for the
quality of care provided by the h o s p i t a l ' s medical s t a f f and is involved
i n physician disciplinary matters a t the hospital. We identified one
Board complaint received i n 1979 and two in 1980 involving care and
treatment received by patients a t Phoenix General Hospital. A l l three
complaints were reviewed and resolved by the secretary- treasurer on his
own, without f u l l Board involvement.
According to the Legislative Council, i f the secretary- treasurer had
authority to review complaints, it appears he would have a conflict of
interest i n those cases involving patients treated a t Phoenix General
Hospital. In an opinion dated August 12, 1981, the Legislative Council
stated that the secretary- treasurer would be subject to potential criminal
prosecution for f a i l i n g to declare t h i s c o n f l i c t :
" I t appears ... that the secretary- treasurer, as medical
director a t Phoenix General Hospital, would have a
conflict of i n t e r e s t i n those cases involving treatment
of patients by osteopathic physicians and surgeons a t
Phoenix General Hospital. Failure to declare the
conflict of i n t e r e s t or f a i l u r e t o r e f r a i n from
participating i n a decision involving t h e c o n f l i c t
would subject the secretary- treasurer to potential
criminal prosecution and, i f found g u i l t y , l o s s of his
employment.""
* For the opinion text, see Appendix I V .
Exposure t o Legal Challenge
The Board's noncompliance with s t a t u t o r y requirements regarding
complaint- handling appears t o increase the Board's exposure t o l e g a l
challenge. I n April 1981 a p h y s i c i a n w i t h s e v e r a l complaints on f i l e a t
the Board f i l e d a $ 1.5 m i l l i o n claim a g a i n s t t h e S t a t e , a l l e g i n g t h a t
i l l e g a l and improper a c t i o n s had been taken by the s e c r e t a r y - t r e a s u r e r
without Board a u t h o r i t y . These a c t i o n s included the manner i n which a
complaint w a s handled involving the doctor and a n o t h e r p h y s i c i a n f o r whom
he was apparently serving as a preceptor ( s u p e r v i s o r ) . I n a l e t t e r t o the
Board dated March 30, 1981, the d o c t o r ' s a t t o r n e y c r i t i c i z e d the
s e c r e t a r y - t r e a s u r e r f o r f a i l i n g t o conduct a f a i r and i m p a r t i a l
i n v e s t i g a t i o n , and f o r absolving t h e o t h e r doctor of misconduct:
" Obviously, you exonerated [ t h e o t h e r doctor] of any
wrongdoing o r any breach of e t h i c s i n your p o s i t i o n as
a member of the ' Board' without consulting other
members of the Board and without bringing the matter t o
a hearing, which a c t i o n has jeopardized [ the d o c t o r ' s
medical groups'] f u t u r e a b i l i t y t o obtain preceptors.""
According t o t h e d o c t o r ' s a t t o r n e y , the s e c r e t a r y - t r e a s u r e r ' s
unauthorized, biased and p r e j u d i c i a l a c t i o n s against h i s c l i e n t l e f t him
few a l t e r n a t i v e s other than t o sue the Board.
* The s e c r e t a r y - t r e a s u r e r is an employee of the Board, not a Board
member.
Board Lacks Investigative Resources
The Board lacks adequate resources to investigate complaints thoroughly.
Current staff consists solely of the secretary- treasurer and an
administrative assistant. The only change in the staffing level in
30 years has been the addition of the administrative assistant, despite
more than a four- fold increase ( from about 250 in 1951 to 1,147 in 1980)
in numbers of licenses granted annually by the Board. The Board has never
had its own investigators and, due to the statutory $ 50 limitation on
renewal fees,* will not be able to generate sufficient revenue in the
future to pay for investigative services. Because of the lack of
investigative resources, the Board has been forced to rely on other
agencies to develop sufficient information for the Board to take
disciplinary action.
We reviewed every official disciplinary action taken by the Board from
January 1979 through March 1981. During this period, as noted earlier,
the Board placed three physicians on probation, ordered six summary
suspensions, revoked one license and accepted one permanent
resignation.** All cases involved drug violations which had been
investigated for the most part by the Department of Public Safety ( DPS),
the Board of Pharmacy or the Federal Drug Enforcement Administration ( DEA).
Because the Board lacks investigative resources, it is unable to protect
the public fully since: 1) disciplinary action cannot be taken or is
delayed when the Board is unable to investigate fully complaints from the
public and violations discovered by other agencies, 2) violations occur
which go undetected, and 3) the Board is unable to monitor adequately the
activities of licensees on probationary status. The following case
examples illustrate how lack of investigative r6sources impairs the
Board's performance.
* A. R. S. $ 32- 1825, subsection B, sets the Board's maximum renewal fee at
$ 50. To cover expenses, the Board plans to raise the fee from $ 40 to
the $ 50 maximum for the next renewal cycle. ** While the disciplinary actions were documented in Board minutes, the
Board had established a complaint file for only one of these actions,
which related to a 1978 complaint.
CASE I
I n approximately September 1980,* DPS reported an o s t e o p a t h i c p h y s i c i a n t o
the Board f o r overprescribing drugs. According t o a DPS i n v e s t i g a t o r , the
d o c t o r p r e s c r i b e d n a r c o t i c s t o known drug abusers and d e a l e r s . One of the
d o c t o r ' s p a t i e n t s was described by DPS as a " kingpin" i n the " i l l i c i t
Dilaudid"" market" i n the Phoenix a r e a , who earned $ 21,000 a week s e l l i n g
drugs on the s t r e e t . The doctor claimed the p a t i e n t was a l e g i t i m a t e
cancer p a t i e n t . Another p a t i e n t was a known drug " middleman," whom the
doctor claimed had intimidated and threatened him i n t o w r i t i n g n a r c o t i c
p r e s c r i p t i o n s . A DPS and Phoenix p o l i c e i n v e s t i g a t i o n revealed, however,
t h a t t h e doctor was f i n a n c i a l l y involved with the p a t i e n t i n t h a t : 1 ) the
doctor had provided the p a t i e n t a $ 3,000 down payment toward the purchase
of a c a r , 2) the d o c t o r o f f e r e d the p a t i e n t f r e e treatments and remitted
h o s p i t a l c o s t s i n exchange f o r sexual favors from women provided by the
p a t i e n t , and 3) the doctor and p a t i e n t had an informal business agreement
i n which the p a t i e n t was t o provide f i n a n c i a l backing f o r a cancer c l i n i c
i n exchange f o r n a r c o t i c p r e s c r i p t i o n s w r i t t e n f o r unseen p a t i e n t s .
Board Action
After a hearing by the Board i n February and March 1981, the doctor was
placed on probation and h i s prescription- writing p r i v i l e g e s were
r e s t r i c t e d . It should be noted t h a t during the two years before receiving
the DPS r e p o r t , the Board received ten other complaints against the same
doctor. These complaints pertained t o the d o c t o r ' s p r e s c r i p t i o n - w r i t i n g
p r a c t i c e s , diagnostic t e s t i n g procedures, treatment methods and f e e s . The
Board's i n v e s t i g a t i o n of these complaints appears t o have been l i m i t e d ,
and no o f f i c i a l Board d i s c i p l i n a r y a c t i o n was taken. I n a d d i t i o n , during
the course of our a u d i t , we were made aware of a d d i t i o n a l a c t i v i t i e s of
the doctor, unknown t o the Board, which a r e under criminal i n v e s t i g a t i o n
and within the Board's regulatory scope.
* Exact date is not known due t o lack of documentation.
** Dilaudid is a n a d d i c t i v e pain k i l l e r used i n the treatment of cancer
and other diseases.
Comment
Due t o its lack of i n v e s t i g a t i v e resources, the Board was unable t o
i n v e s t i g a t e f u l l y t h e d o c t o r ' s p r a c t i c e s , and Board a c t i o n may have been
unduly delayed. I n a d d i t i o n , the Board was not aware a t the time of our
a u d i t of other s i m i l a r alleged v i o l a t i o n s t h a t c u r r e n t l y a r e under
criminal i n v e s t i g a t i o n .
CASE I1
In July 1972, an o s t e o p a t h i c p h y s i c i a n was a r r e s t e d a f t e r attempting to
s e l l almost 1,000 v i a l s of amphetamines ( a t $ 10 a v i a l ) t o a DPS o f f i c e r .
The doctor was found g u i l t y of unlawful d i s t r i b u t i o n of dangerous drugs, a
felony, and placed on probation by a S t a t e Superior Court i n February
1973. I n a d d i t i o n , the doctor, who had been addicted t o amphetamines, was
convicted of r e l a t e d Federal drug v i o l a t i o n s i n the U. S. D i s t r i c t Court
i n Arizona.
Board Action
Following h i s criminal convictions, the Board censured the doctor and
placed him on probation f o r ten years. Terms of h i s probation included
reporting t o the Board twice yearly and not engaging i n a c t i v i t y which
would c o n s t i t u t e unprofessional conduct.
In 1976, a Board of Pharmacy i n s p e c t o r discovered t h a t the doctor, who
still was on Board- ordered probation, had been p r e s c r i b i n g and obtaining
l a r g e amounts of Demerol ( an a d d i c t i v e p a i n k i l l e r ) f o r personal use. The
doctor subsequently was admitted t o the h o s p i t a l f o r Demerol a d d i c t i o n ,
t r e a t e d and discharged i n 1977 with a " poor" prognosis f o r overcoming h i s
chemical dependence.
I n January 1978, the Board considered the d o c t o r ' s request t h a t h i s
Federal permit t o p r e s c r i b e c o n t r o l l e d drugs, which had expired, be
reissued. The Board denied the request u n t i l the d o c t o r ' s physical
condition could be f u l l y evaluated. I n April 1978, following a personal
interview with the doctor, the Board voted t o recommend reissuance of h i s
permit t o prescribe drugs, but t h a t the permit not include Schedule I1
( n a r c o t i c ) substances.*
In 1979, a Board of Pharmacy i n s p e c t o r found t h a t the d o c t o r a g a i n was
obtaining c o n t r o l l e d drugs f o r h i s own use. The Board learned t h a t the
doctor had applied f o r and received a permit t o p r e s c r i b e Schedule I1
substances contrary t o the Board's d i r e c t i v e of April 1978, and had
w r i t t e n Demerol p r e s c r i p t i o n s f o r h i s wife.
Following a hearing i n June 1980, the Board ordered a summary suspension ( I
of t h e d o c t o r ' s l i c e n s e u n t i l such time a s he surrendered h i s Schedule I1
permit t o Federal a u t h o r i t i e s . The doctor complied with the Board's order
four days a f t e r it was signed, and the suspension of h i s l i c e n s e was
withdrawn.
In September 1980, a Board of Medical Examiners i n v e s t i g a t o r found t h a t
seven p r e s c r i p t i o n s f o r Talwin, an addictive Schedule I V substance, had
been w r i t t e n by the doctor. Three of the p r e s c r i p t i o n s were f o r the
d o c t o r ' s o f f i c e use, and t h r e e were made out t o h i s wife.
After an interview with the doc t o r , who indicated t h e p r e s c r i p t i o n s were
w r i t t e n l e g i t i m a t e l y f o r p a t i e n t s and f o r h i s wife, the Board advised him
t h a t medication f o r h i s wife should be prescribed by a physician other
than himself .
it The Federal Drug Enforcement Administration has developed a
c l a s s i f i c a t i o n system f o r c o n t r o l l e d substances based on addiction
p o t e n t i a l and other drug c h a r a c t e r i s t i c s . Schedule I1 d r u g s i n c l u d e
the most a d d i c t i v e n a r c o t i c substances a v a i l a b l e f o r medical use.
Comment
The Board was unable t o monitor adequately the a c t i v i t i e s of a l i c e n s e e on
probationary s t a t u s . The Board r e l i e d on information provided by other
agencies, since it was unable t o i n v e s t i g a t e f u l l y the a c t i v i t i e s of the
doctor on its own. For example, no pharmacy surveys were made by the
Board t o determine the d o c t o r ' s compliance with Board orders.
I n a d d i t i o n , during t h e course of our a u d i t , we reviewed recent
information obtained by the Department of P u b l i c S a f e t y which i n d i c a t e s
t h e doctor again may be improperly dispensing drugs, and t h a t those
a c t i v i t i e s appear t o warrant i n v e s t i g a t i o n . The Board was unaware of
these a c t i v i t i e s a t the time of our a u d i t .
CASE I11
I n October 1973, i n v e s t i g a t o r s from the Board of Pharmacy and DEA found
t h a t an osteopathic physician had more than 100,000 dosage u n i t s of
s t r a i g h t amphetamine capsules stored a t h i s home i n v i o l a t i o n of Federal
regulations. The doctor claimed t h a t the drugs were used i n h i s weight
c o n t r o l program and were stored at h i s home because of numerous burglary
attempts a t h i s o f f i c e . I n the presence of t h e i n v e s t i g a t o r s the drugs
were t r a n s f e r r e d t o a s t o r a g e warehouse.
However, i n 1975 Federal a u t h o r i t i e s discovered t h a t the doctor, who
operated a weight c o n t r o l c l i n i c and had been p r e s c r i b i n g l a r g e amounts of
amphetamines t o h i s p a t i e n t s , had moved h i s o f f i c e without n o t i f y i n g DEA,
and was u s i n g a n expired DEA r e g i s t r a t i o n number.
Board Action
I n 1979, almost s i x years a f t e r the i n i t i a l i n v e s t i g a t i o n of the doctor,
the Board held a hearing and found t h a t since 1966 t h e doctor had
prescribed i n d i s c r i m i n a t e l y and dispensed amphetamines t o numerous
p a t i e n t s , d e s p i t e no appreciable medical b e n e f i t and a g a i n s t t h e p a t i e n t s '
best i n t e r e s t s . I n some cases, no physical examinations were conducted
p r i o r t o dispensing the drugs, medical records were lacking, and no
monitoring of p h y s i c a l p r o g r e s s and r e a c t i o n s was done. I n one case,
drugs were mailed r e g u l a r l y t o a p a t i e n t who had moved t o Tennessee. The
doctor was placed on probation by the Board and ordered t o discontinue
p r e s c r i b i n g drugs f o r weight control.
Comment
The d o c t o r ' s medical v i o l a t i o n s , dating back t o 1966, went undectected by
the Board u n t i l 1973 when i n v e s t i g a t o r s from o t h e r agencies informed the
Board. Subsequent Board a c t i o n may have been delayed because it lacked
its own i n v e s t i g a t i v e resources.
CASE I V
An insurance company wrote t o the Board i n November 1979, requesting t h a t
the Board review treatment provided and f e e s charged t o t h r e e p a t i e n t s by
an osteopathic physician.
Board Action
A t its January 1980 meeting, the Board reviewed the matter and determined
t h a t , i n a l l t h r e e cases, unnecessary treatment had been provided and fees
had been excessive. Diagnoses were made which were not s u b s t a n t i a t e d and
the reasons f o r many o f f i c e v i s i t s were not apparent.
In a d d i t i o n , t h e Board found a p o s s i b i l i t y of fraud i n the d o c t o r ' s
laboratory b i l l i n g s and d i r e c t e d its s e c r e t a r y - t r e a s u r e r t o i n v e s t i g a t e
f u r t h e r . The s e c r e t a r y - t r e a s u r e r , whose s t a t u t o r y r e s p o n s i b i l i t i e s do not
include i n v e s t i g a t i n g complaints, attempted t o i n v e s t i g a t e t h e p o s s i b i l i t y
of fraud by v i s i t i n g the d o c t o r ' s o f f i c e . The o f f i c e was closed a t the
time of h i s v i s i t and no determination could be made. The Board did not
pursue the question of fraud and the matter w a s dropped.
Comment
The Board did not investigate fully the possibility of fraud discovered
during review of the insurance company complaint.
Board Members Claim an
Investigator is Needed
During the course of our audit, we interviewed the five members of the
Board, its secretary- treasurer, the assistant Attorney General assigned to
the Board and officials of other agencies. All agreed the Board needs
investigative resources. Board members stated that either an investigator
is needed or that having one would be helpful. The assistant Attorney
General assigned to the Board described the Board's lack of an
investigator as its " one big deficiency." By contrast, the Board of
Medical Examiners, which also licenses physicians and surgeons, has four
full- time investigators and three half- time medical consultants available
to investigate complaints.
A Health Council is an
Alternative To Individual
Regulatory Agencies
In two 1979 performance audit reports (~ e~ or7t9- 10 and Report 79- 11) it
was recommended that the Legislature consider establishing a Health
Occupation's Council, based on a model regulatory structure developed by
the Council of State Governments. One of the benefits of such a council,
made up of representatives of each regulated profession and the public, is
to coordinate and centralize certain staff functions, including
investigations of complaints. Under such an arrangement, investigative
services are available to smaller boards, such as the Board of Osteopathic
Examiners in Medicine and Surgery, which lack investigative resources of
their own.
CONCLUSION
Board complaint- review procedures are not in compliance with law in that:
1) the Board's secretary- treasurer does not have authority to review and
resolve complaints, 2) the practice of sending copies of signed
complaints to doctors involved violates confidentiality requirements, and
3) the Board does not have authority to request doctors to adjust fees or
provide refunds to patients. It was noted during our audit that some
agency reports on physician violations had not been documented in a
complaint file, and the secretary- treasurer appears to have a conflict of
interest which has not been declared. In addition, the Board does not
have its own investigative resources. As a result, it is unable to
protect the public fully in that: 1) disciplinary action cannot be taken,
or is delayed when the Board is unable to investigate fully complaints and
violations discovered by other agencies, 2) violations occur which go
undetected by the Board, and 3) the Board is unable to monitor adequately
the activities of licensees on probationary status.
RECOMMENDATIONS
If the recommendation in Finding 11* is not adopted, then consideration
should be given to the following recommendations:
1. Every complaint be reviewed and resolved by the full Board.
2. Complainant names not be routinely disclosed to doctors involved
in the complaint in compliance with A. R. S. $ 32- 1855, subsection A.
3. The Board discontinue requesting doctors who overcharge patients
to adjust fees or make refunds to patients.
4. Reports from other agencies concerning possible violations by
physicians be documented in a complaint file.
* Finding I1 explores the advisability of merging the Board with the
Board of Medical Examiners.
5. The s e c r e t a r y - t r e a s u r e r d e c l a r e h i s c o n f l i c t of i n t e r e s t and
r e f r a i n from involvement i n complaints involving care a t Phoenix
General Hospital.
6. A. R. S. 532- 1825, subsection B, be amended to remove t h e c u r r e n t
c e i l i n g of $ 50 on license renewal fees.
7. The Board be appropriated funds to h i r e an i n v e s t i g a t o r part- time
or full- time.
It is also recommended, as an a l t e r n a t i v e , t h a t the Legislature consider
establishing a Health Occupation's Council with centralized s t a f f
resources.
FINDING I1
COMBINING THE BOARD OF OSTEOPATHIC EXAMINERS I N MEDICINE AND SURGERY AND
THE BOARD OF MEDICAL EXAMINERS WOULD IMPROVE THE OSTEOPATHIC BOARD'S
EFFECTIVENESS AND ACCESSIBILITY TO THE PUBLIC.
Unlike s t a t u t e s i n most o t h e r s t a t e s , Arizona s t a t u t e s provide f o r both a
Board of Osteopathic Examiners i n Medicine and Surgery and a Board of
Medical Examiners ( BOMEX), d e s p i t e the f a c t t h a t : 1) both regulate
physicians and surgeons i n the same scope of p r a c t i c e , and 2) the
s t a t u t o r y r e s p o n s i b i l i t i e s and functions of the two boards a r e e s s e n t i a l l y
the same. Thirty other s t a t e s l i c e n s e and r e g u l a t e d o c t o r s of osteopathy
and doctors of medicine through a s i n g l e composite board. Our review
indicated t h a t combining the Osteopathic Board with BOMEX would:
1) improve the Osteopathic Board's e f f e c t i v e n e s s , 2 ) i n c r e a s e its public
a c c e s s i b i l i t y and awareness, and 3) promote e f f i c i e n c y i n the use of
c l e r i c a l s e r v i c e s and physical f a c i l i t i e s .
Members of the Osteopathic Board oppose merging with BOMEX primarily
because of d i f f e r e n c e s i n medical philosophy and concerns regarding
adequate r e p r e s e n t a t i o n . S t a f f interviews with o f f i c i a l s i n ten of the 30
s t a t e s with combined boards, however, revealed no adverse consequences or
p r o f e s s i o n a l f r i c t i o n r e s u l t i n g from one board r e g u l a t i n g the two
professions, provided t h a t the osteopathic profession is adequately
represented on the board.
Current S t a t u t e s Provide f o r
Separate Boards
Arizona law provides f o r a Board of Osteopathic Examiners i n Medicine and
Surgery pursuant t o A. R. S. 572- 1801, e t seq., and a Board of Medical
Examiners ( BOMEX) i n accordance with A. R. S. 532- 1401, e t seq. The
Osteopathic Board l i c e n s e s physicians who earn a doctor of osteopathy ( DO)
degree. BOMEX l i c e n s e s physicians who earn a d o c t o r o f medicine ( MD)
degree. The scope of medical p r a c t i c e of DOs and MDs, however, is the
same, and includes the use of drugs, r a d i a t i o n and surgery i n the
treatment of disease.
A comparison of the s t a t u t o r y functions of both boards revealed t h a t t h e i r
r e s p o n s i b i l i t i e s are e s s e n t i a l l y the same. A s shown i n Table 4, both
boards issue licenses by examination and by endorsement, grant temporary
l i c e n s e s , have authority t o i s s u e a r e a permits, renew licenses annually,
r e i n s t a t e l i c e n s e s , i n v e s t i g a t e complaints and reports f i l e d against
licensees, hold informal interviews and formal hearings, d i s c i p l i n e
physicians and review malpractice reports f i l e d by insurance c a r r i e r s .
TABLE 4
Function
Issue l i c e n s e s by examination
Issue l i c e n s e s by endorsement
Issue limited l i c e n s e s
Issue temporary l i c e n s e s
Issue area p e r n i t s
Renew l i c e n s e s , r e i n s t a t e licenses,
r e g i s t e r i n t e r n s and residents
Register Locum Tenens*"
~ n v e s t i g a t e complaints and reports
COMPARISON OF BOARD OF OSTEOPATHIC EXAMINERS
AND BOARD OF MEDICAL EXAMINERS STATUTORY FUNCTIONS
Hold infornal interviews and formal
hearings, d i s c i p l i n e physicians
Review malpractice reports f i l e d by
i n s u r e r s ; report malpractice actions t o
Department of Insurance
Publish a d i r e c t o r y
Meet as Joint Board of Medical Examiners
and Osteopathic Examiners i n Medicine
and Surgery
Osteopathic Board
National Board or FLEX* exam; personal
interview required
Personal interview required
Not granted
Issued f o r s i x months f o r l o c a l
or national emergency or i n areas lacking
medical care
Issued to nonresidents of Arizona
Renewed annually; does not
r e g i s t e r i n t e r n s or residents; continuing
education requirement must be met
( 12 hours annually)
Not done
Conducts investigations of licensed
physicians as a r e s u l t of complaints
and reports
May censure or place physician on
probation a f t e r informal interview; may
suspend or revoke l i c e n s e a f t e r a hearing
Malpractice actions must be reviewed and
report must be f i l e d annually with '
Department of Insurance
Not done
Regulate physician a s s i s t a n t s
Medical Board
FLEX exam; personal interview not
required
Oral exam required i f license was
granted more than 15 years from t i n e
of application
Issued up to f i v e years f o r
areas i n medical need
Issued f o r six months i n
areas lacking medical care
Same as Osteopathic Board
Renewed annually; r e g i s t e r s
i n t e r n s arid residents; continuing
education requirement ( 60 hours)
must be met every three years
Registers such physicians i n medical
f a c i l i t i e s with recognized need
Same a s Osteopathic Board;
n o t i f i c a t i o n of physicians within
120 days i s required
Same as Osteopathic Board
Same as Osteopathic Board
Directory of licensees published
annually
Same a s Osteopathic Board
* The Osteopathic National Board examination is uniquely osteopathic and
given i n t h r e e p a r t s . The Federation Licensing Exam ( FLEX) is offered
to both MDs and DOs and i s administered twice annually over a
three- day session.
** A temporary physician.
Some of t h e d i f f e r e n c e s shown i n Table 4 include: 1) the Osteopathic
Board does not issue limited l i c e n s e s , r e g i s t e r physicians or i n t e r n s , or
publish an annual directory - as does BOMEX, and 2) BOMEX does not
require each license applicant to meet with the Board f o r a personal
interivew - a s does the Osteopathic Board. Further, the Osteopathic Board
requires of its licensees 12 hours of continuing education a year; BOMEX
requires of its licensees 60 hours of continuing education every three
years. Both boards meet as the Joint Board of Medical Examiners and
Osteopathic Examiners i n Medicine and Surgery to regulate physician
a s s i s t a n t s only."
Most States Regulate DOs
and MDs through Composite Board
A s shown i n Table 5, 30 s t a t e s and the D i s t r i c t of Columbia license and
regulate osteopathic physicians and medical doctors through a single
composite board.
* Medical personnel supervised by doctors.
30
TABLE 5
SUMMARY OF REGULATORY BOARD COMPOSITION FOR OSTEOPATHIC
PHYSICIANS AND MEDICAL DOCTORS I N THE 50 STATES AND THE DISTRICT OF COLUMBIA
S t a t e s w i t h S e p a r a t e S t a t e s with
S t a t e s with Composite Boards Osteopathic Boards Special Circumstances
Alabama
Alaska
Arkansas
Colorado
Deleware
D D i s t r i c t of Columbia
Georgia
Idaho
I l l i n o i s
Indiana
Iowa
B Kansas
Kentucky
Massachusetts
Minnesota
Mississippi
Missouri
B Nebraska
New Hampshire
New Jersey
New York
North Dakota
Ohio
@ Oregon
Rhode Island
South Carolina
South Dakota
Texas
Virginia
B Wisconsin
Wyoming
Arizona
C a l i f o r n i a
Connecticut
F l o r i d a
Hawaii
Maine
Michigan
Nevada
New Mexico
Oklahoma
Pennsylvania
Tennessee
Utah
Vermont
Washington
West Virginia
Louisiana
Maryland
Montana
North Carolina
Only 16 s t a t e s , including Arizona, maintain separate osteopathic and
medical boards. I n four s t a t e s ( ~ o u i s i a n a , Maryland, Montana and
North ~ a r o l i n a ) osteopathic physicians may be licensed by an
osteopathic board a medical board, but the scopes of p r a c t i c e
d i f f e r within those s t a t e s .
Improvements Would Result
from Combining Boards
Our review indicates that combining the Osteopathic Board with BOMEX
would : 1) improve the Osteopathic Board's effectiveness, 2) increase its
public accessibility and awareness, and 3) promote efficiency in the use
of clerical services and physical facilities.
Improved Effectiveness
As noted in Finding I, the Osteopathic Board lacks investigative resources
to investigate adequately complaints from the public and matters reported
by other agencies. BOMEX, on the other hand, has four full- time staff
investigators and three half- time medical consultants. BOMEX
investigators conduct pharmacy surveys ( audits of physician prescriptions
on file in ~ harmacies), assist in the investigation of complaints,
undertake undercover activities and work cooperatively with investigators
from other agencies. If the Osteopathic Board had access to such
capability, its effectiveness could be increased. ( see case examples
beginning on page 18)
Increased Public
Accessibility and Awareness
The Osteopathic Board's office normally is staffed solely by its
administrative assistant. The Board secretary- treasurer spends about 75
percent of his time at Phoenix General Hospital, where he serves as
Medical Director. During the course of our audit, it was noted that the
Board sometimes is inaccessible to the public since the Board office is
closed when the administrative assistant is absent from the premises. At
such times the Board uses an answering service to take messages; however,
the answering service cannot respond to questions about Board- related
activities and matters. In addition, the Board has only one telephone
line into the office, which often is busy. By contrast, BOMEX is
accessible to the public from 8 a. m. to 5 p. m., Monday through Friday, and
has multiple telephone lines into the office. Thus, combining the boards
would increase public accessibility to the Osteopathic Board.
A public opinion survey commissioned by the Auditor General and conducted
by Arizona State University ( ASU) found that public awareness of BOMEX was
s i g n i f i c a n t l y g r e a t e r than awareness of the Osteopathic Board. More than
700 randomly selected citizens throughout Arizona were interviewed by ASU
researchers. Of those persons who responded to the survey, 70 percent
were aware of the Board of Medical Examiners, whereas only 22 percent were
aware of the Board of Osteopathic Examiners i n Medicine and Surgery. Of
those who had received medical care i n the past two years, 79 percent were
aware of BOMEX, compared to 23 percent who were aware of the Osteopathic
Board.
A separate survey of State agencies conducted by the Office of the Auditor
General revealed that the BOMEX level of e f f o r t to inform the public of
Board a c t i v i t i e s appears to be greater than the Osteopathic Board's
e f f o r t . For example, notice of BOMEX meetings and minutes of meetings are
distributed routinely to news media and to consumer groups on request.
Thus, combining the boards also would appear t o increase public awareness
of the Osteopathic Board.
Improved Efficiency
Both the Osteopathic Board and BOMEX perform similar c l e r i c a l functions
such as: 1) processing license applications, 2) renewing licenses
annually, 3) preparing meeting materials, 4) processing correspondence,
5) preparing legal documents, and 6) maintaining records and f i l e s .
Combining the boards would promote efficiency and f l e x i b i l i t y i n use of
c l e r i c a l s t a f f . Clerical resources could be pooled and assigned tasks
based on workload requirements. During peak periods, such as annual
license renewal times, extra help would be available to the Osteopathic
Board to meet the growing demand. Currently, the Board's administrative
assistant must do t h i s work by herself, and, a t the same time, f u l f i l l
other administrative r e s p o n s i b i l i t i e s and handle telephone c a l l s .
Further, combining the boards would r e s u l t i n more e f f i c i e n t use of
physical f a c i l i t i e s . The Osteopathic Board does not have a meeting room
o r f a c i l i t y of its own t o examine l i c e n s e a p p l i c a n t s although, on
occasion, it has used BOMEX conference space. Combining boards would
increase t h e Osteopathic Board's a c c e s s i b i l i t y t o and use of BOMEX
f a c i l i t i e s .
Cost of Combining Boards
The cost of combining the Osteopathic Board with BOMEX does not appear t o
outweigh t h e b e n e f i t s discussed above. A t our request, the Executive
Director of BOMEX estimated the a d d i t i o n a l a d m i n i s t r a t i v e c o s t of
combining BOMEX, the Osteopathic Board, and t h e J o i n t Board of Medical and
Osteopathic Examiners* i n t o a s i n g l e regulatory u n i t t o be $ 80,000 i n
f i s c a l year 1982- 83. Kost of t h i s $ 80,000 would be used f o r an
osteopathic medical c o n s u l t a n t , a n a d d i t i o n a l i n v e s t i g a t o r , c l e r i c a l
support f o r t h e J o i n t Board and expanded o f f i c e space.
It should be noted t h a t the c o s t of combining the boards, however, could
be s i g n i f i c a n t l y o f f s e t by converting the Osteopathic Board
s e c r e t a r y - t r e a s u r e r p o s i t i o n i n t o a medical c o n s u l t a n t p o s i t i o n . The
Board's c u r r e n t s e c r e t a r y - t r e a s u r e r is a n o s t e o p a t h i c p h y s i c i a n who
performs the functions of an osteopathic medical consultant. Thus the
a c t u a l c o s t of combining the boards could be considerably l e s s than the
$ 80,000 estimate.
* A separate J o i n t Board of Medical Examiners and Osteopathic Examiners
i n Medicine and Surgery, responsible f o r r e g u l a t i n g physician
a s s i s t a n t s , may not be necessary i f the Osteopathic Board and BOMEX
were combined. The J o i n t Board is scheduled f o r " sunset" review p r i o r
t o its termination on July 1, 1988, i n accordance with A. R. S. 541- 2365.
Board Members Oppose
Combining Boards
In Arizona, osteopathic physicians have had t h e i r own l i c e n s i n g board
since 1949. Current members of the Osteopathic Board oppose combining the
Osteopathic Board with BOMEX because they: 1) claim t h e i r medical
philosophy d i f f e r s from t h a t of medical doctors, 2) foresee
r e p r e s e n t a t i o n problems on the l a r g e r medical board because t h e r e a r e nine
medical doctors f o r e v e r y o s t e o p a t h i c p h y s i c i a n i n Arizona, and 3) p r e f e r
t o maintain t h e i r own Board i d e n t i t y . However, our review of the
experience i n other s t a t e s with composite boards appears t o i n d i c a t e t h a t
these concerns can be overcome successfully.
S t a t e s Surveyed Reported Few
D i f f i c u l t i e s Licensing Both DOs and MDs
We interviewed medical board o f f i c i a l s i n ten of the 30 s t a t e s which
l i c e n s e and regulate o s t e o p a t h i c p h y s i c i a n s and medical doctors through
composite boards.
I n f i v e s t a t e s , we a l s o contacted the s t a t e osteopathic a s s o c i a t i o n f o r
t h e i r view of the composite board.* Medical board o f f i c i a l s reported no
adverse consequences o r p r o f e s s i o n a l f r i c t i o n r e s u l t i n g from one board
r e g u l a t i n g the two professions and four of the f i v e p r o f e s s i o n a l
a s s o c i a t i o n s expressed a favorable opinion of the combined board. It
appears t h a t the key t o the success of a combined board is adequate
r e p r e s e n t a t i o n of the osteopathic physicians.
* The American Osteopathic Association was a l s o contacted. Although it
has no o f f i c i a l p o s i t i o n on s t a t e regulatory s t r u c t u r e , a s e p a r a t e
board is preferred because it is b e t t e r equipped t o adequately examine
the unique t r a i n i n g of osteopathic l i c e n s e applicants.
Medical Board O f f i c i a l s
We selected ten s t a t e s with composite boards which represented a
d i v e r s i t y in: 1) geographic l o c a t i o n , and 2) numbers of licensed
osteopathic physicians. A s shown i n Table 6 , two s t a t e s , New York
and Texas, have more o s t e o p a t h i c p h y s i c i a n s t h a n Arizona, and eight
have l e s s . In a l l ten s t a t e s , o s t e o p a t h i c p h y s i c i a n s a r e
outnumbered by medical doctors by r a t i o s g r e a t e r than the nine to
one margin i n Arizona. Ratios of medical doctors t o osteopathic
physicians range from 14 t o 1 i n Kansas t o 196 t o 1 i n South
Carolina.
TABLE 6
BOARD COMPOSITION AND RATIO OF MEDICAL DOCTORS TO
OSTEOPATHIC PHYSICIANS I N ARIZONA AND TEN STATES WITH COMPOSITE BOARDS SURVEYED
S t a t e
Arizona
North Dakota
Montana
South Carolina
Kansas
Delaware
Texas
New York
Colorado
Wyoming
Oregon
Board Composition*
MDs DOs DCs DPMs Public Total
N/ A
10
9
10
13
12
15
2 4
11
5
8
Number of
MDs**
4,569
835
1,027
3,914
3,548
951
20,570
45,570
5,671
474
4,327
Number of
DOs***
482
10
2 4
20
249
59
1,101
638
305
16
212
A telephone survey of medical board o f f i c i a l s was conducted t o
determine how well the composite boards were working i n t h e ten
s t a t e s . A l l o f f i c i a l s contacted s t a t e d t h a t the boards were
functioning e f f e c t i v e l y with no major problems.
* MD - Medical Doctor, DO - Osteopathic Physician, DC - Chiropractor,
DPM - P o d i a t r i s t .
** A s of January 1, 1979 - Source: 1980 S t a t i s t i c a l Abstract of the
U. S.
*** Source: 1979- 80 Annual Yearbook of the American Osteopathic
Association.
**** Board membership includes another DO who serves a s an a l t e r n a t e and
votes i n c a s e o f a t i e .
Ratio
9: l
84 : 1
43: l
196 : 1
14: l
16: l
19: l
71 : 1
I n Kansas, osteopaths and medical doctors a r e regulated by a Board of
Healing A r t s which a l s o r e g u l a t e s c h i r o p r a c t o r s and p o d i a t r i s t s .
According t o the Board's Executive S e c r e t a r y , the MDs and DOs work well
together. The Board is comprised of f i v e MDs, t h r e e DOs, three
c h i r o p r a c t o r s , one p o d i a t r i s t and one public member, and cannot make
o f f i c i a l decisions i f one of the t h r e e major medical professions is not
represented.
According t o the Secretary of the Delaware Medical Board, philosophical
d i f f e r e n c e s between DOs and MDs make l i t t l e d i f f e r e n c e and cause no
problems on the Board. The s t a n d a r d s r e q u i r e d of both professions a r e the
same. The Delaware Board, c o n s i s t i n g of 12 members, includes one
osteopathic physician.
Also reporting l i t t l e d i f f i c u l t y i n r e g u l a t i n g both professions through a
s i n g l e board were medical o f f i c i a l s i n the s t a t e s of North Dakota,
Montana, South Carolina, Texas, Wyoming, New York, Colorado and Oregon.
Most S t a t e Osteopathic Associations
Also Reported Favorable Experience
We a l s o contacted s t a t e osteopathic a s s o c i a t i o n s i n f i v e of the s t a t e s .
Associations i n four s t a t e s , New York, Delaware, Colorado and Kansas,
reported no d i f f i c u l t i e s with the board and no complaints from t h e i r
membership. Most expressed a p e r s o n a l p r e f e r e n c e f o r a separate board,
however, and s t i p u l a t e d t h a t adequate osteopathic r e p r e s e n t a t i o n is
e s s e n t i a l f o r the board t o work successfully. It should be noted t h a t i n
a l l s t a t e s c o n t a c t e d , o s t e o p a t h i c p h y s i c i a n s a r e represented on the board
i n g r e a t e r p r o p o r t i o n t h a n t h e i r numbers i n the medical community. ( see
Table 6)
I n Texas, the experience of the osteopathic profession with the composite
board h a s n o t been favorable. According t o the Executive Director of the
Texas Osteopathic Medical Association, the medical board i n Texas has made
d e c i s i o n s d i s r e g a r d i n g the i n t e r e s t s and opinions of the osteopathic
profession i n the S t a t e . However, the unfavorable experience with a
composite medical board i n Texas appears t o have r e s u l t e d from inadequate
r e p r e s e n t a t i o n of o s t e o p a t h i c p h y s i c i a n s on the Texas Medical Board. A t
the time of our survey, the Texas Medical Board had one osteopathic
physician on the 15- member board. Texas law was r e c e n t l y amended, i n l i n e
with a " sunset" review recommendation t o require more osteopathic
physicians on the board. A s shown i n Table 6, t h r e e osteopathic
physicians w i l l now serve on the Texas Medical Board.
A l t e r n a t i v e l e g i s l a t i o n e s t a b l i s h i n g a separate osteopathic board was not
recommended by the Sunset Advisory Commission and was defeated by the
Texas L e g i s l a t u r e .
CONCLUSION
Thirty s t a t e s and the D i s t r i c t of Columbia l i c e n s e and regulate
o s t e o p a t h i c p h y s i c i a n s and medical doctors through a composite board. Our
review i n d i c a t e s t h a t combining the Osteopathic Board and the Board of
Medical Examiners would: 1 ) improve the Osteopathic Board's
e f f e c t i v e n e s s ; 2) i n c r e a s e public a c c e s s i b i l i t y and awareness; and
3) promote e f f i c i e n c y i n the use of c l e r i c a l s e r v i c e s and physical
f a c i l i t i e s . A survey of ten s t a t e s with composite boards disclosed no
adverse consequences or p r o f e s s i o n a l f r i c t i o n r e s u l t i n g from r e g u l a t i o n of
the two professions by the same board provided o s t e o p a t h i c p h y s i c i a n s a r e
adequately represented on the board.
Consideration should be given t o the following recommendation:
- That the Board of Osteopathic Examiners i n Medicine and Surgery
and the Board of Medical Examiners be combined and t h a t both
o s t e o p a t h i c p h y s i c i a n s and medical doctors be licensed and
regulated by a s i n g l e , composite board.
FINDING I11
CHANGES ARE NEEDED I N BOARD STATUTES PERTAINING TO CONTINUING EDUCATION
REQUIREMENTS AND BOARD MEMBER COMPENSATION.
Under the Board's 1949 law, osteopathic physicians are required t o attend
a two- day educational program prior to renewing t h e i r license each year.
Under c e r t a i n circumstances the requirement, the equivalent of 12 hours of
continuing education, may be waived by the Board. Our review indicated
t h a t the Board's law pertaining to continuing education needs to be
revised since: 1) the Board does not have authority to waive the
requirement or grant an extension i f a physician has no valid reason f o r
f a i l i n g to meet the requirement, and 2) most s t a t e s which have a
continuing education law f o r osteopathic physicians require more hours
than Arizona.
In addition, Board s t a t u t e s pertaining t o Board member compensation need
t o be revised to bring the Board i n t o conformity with other State
regulatory bodies. Although Board members have been receiving $ 30 per day
compensation consistent with other boards, Osteopathic Board s t a t u t e s
require Board members t o receive $ 50 per day.
Continuing Education Required By Law
A. R. S. $ 32- 1825, passed i n 1949 when the Board of Osteopathic Examiners
was established, requires physicians to meet a continuing education
requirement annually prior to renewing t h e i r license. Subsection B of the
law s t a t e s the following:
" The licensee s h a l l furnish to t h e s e c r e t a r y - t r e a s u r e r
evidence of having attended, within the calendar year
prior to the renewal date, an educational program,
approved by the American osteopathic association, of a t
l e a s t two days duration ...."
Subsection C allows the Board to waive the continuing education
requirement, the equivalent of 12 consecutive hours, under c e r t a i n
circumstances:
" [ ~ ] f upon application f o r waiver, the board finds that
the f a i l u r e of the licensee to a t t e n d an approved
educational program was due t o t h e l i c e n s e e ' s
d i s a b i l i t y , m i l i t a r y service o r absence from the
continental United States of America, or was due to
other circumstances beyond the control of t h e l i c e n s e e
which are deemed good and s u f f i c i e n t by the board, then
upon notation of such finding i n the record of the
proceedings, the requirement s h a l l be deemed waived for
that year only and the license s h a l l be renewed upon
the payment of the fees as herein provided."
Our review revealed that the Board waived the continuing education
requirement f o r s e v e r a l l i c e n s e e s f o r special reasons not noted i n the
minutes, including eleven such waivers i n January 1981. According t o the
Board secretary- treasurer, one waiver was granted due to the physician's
age ( over go), another f o r serious family i l l n e s s , and a t h i r d because the
p h y s i c i a n ' s c o n t r a c t u a l o b l i g a t i o n to his employer did not permit him time
off needed to attend educational courses. In e i g h t o t h e r cases, however,
the physicians simply forgot to meet the requirement, and the Board
directed the physicians to make up the requirement i n the ensuing year.
According to Legislative Council, i n an opinion dated August 18, 1981,"
the Board is not i n compliance with law unless it makes a finding, noted
i n the minutes, that the reasons f o r the waiver were j u s t i f i e d by
circumstances beyond the l i c e n s e e ' s control:
* For f u l l t e x t of t h i s memorandum, see Appendix V.
40
" The Board must make a finding that t h e l i c e n s e e ' s
f a i l u r e to attend an approved educational program was
due to circumstances beyond the control of the licensee
which are deemed to be good and s u f f i c i e n t by the Board
and then make a notation of that finding i n the records
of the proceeding i n order f o r the continuing education
requirement to be deemed waived. Since the Board did
not note a finding i n its minutes that c e r t a i n
licensees l i s t e d i n the minutes were prevented from
attending a continuing education program by
circumstances beyond t h e i r control which were deemed
good and s u f f i c i e n t by the Board, the waivers were not
granted to those licensees i n compliance with A. R. S.
section 32- 1825, subsection C."
According to Legislative Council, licenses granted i n t h i s manner may not
be valid, depending upon how a court might rule:
" The a c t s of the Board i n violation of the s t a t u t e
r a i s e questions about the v a l i d i t y of such licenses.
We cannot predict how a court would act i f t h e l i c e n s e
renewed under the f a c t s as presented to us was subject
to question because of the improper manner i n which it
was renewed."
In addition, according to Legislative Council, the Board does not have
authority to require additional hours over and above the statutory
requirement :
" Administrative agencies have no common law or inherent
powers. Instead t h e i r powers are to be measured by the
s t a t u t e s under which they operate. Kendall v. Malcolm,
98 Ariz. 329, 404 P. 2d 414 ( 1965). The s t a t u t e s under
which the Board operates do not grant it the authority
to require a licensee to attend more than the two day
program required under A. R. S. section 32- 1825,
subsection B. I'
" Additionally, A. R. S. section 32- 1825, subsection C
provides that the requirement of attendance of an
approved educational program ' s h a l l be deemed waived
f o r that year only.' ' waiver' means ' t h e act of
waiving o r i n t e n t i o n a l l y relinquishing or abandoning a
known r i g h t , claim, or privilege.' Webster's Third New
International Dictionary 2570 ( 1976). I f the Board
grants a waiver of the educational requirement to a
licensee it has abandoned any claim it had against the
licensee f o r the attendance of an approved educational
program and cannot require the licensee to make it up
the next year."
Loss of a license appears t o be an unreasonably harsh penalty f o r f a i l i n g
to f u l f i l l 12 hours of continuing education. The continuing education
requirement f o r physicians licensed by the Board of Medical Examiners, and
by osteopathic boards i n some other s t a t e s , a r e more f l e x i b l e i n that
physicians must f u l f i l l the continuing education requirement every three
years r a t h e r than annually and i n some cases licensees are allowed a grace
period t o make up the continuing education hours they need.
Continuing Education Requirements
Are Minimal Compared To Other States
A review of s t a t u t e s of other s t a t e s revealed t h a t Arizona's 12- hour
continuing education requirement appears minimal compared to other s t a t e s
which have continuing education requirements. Table 7 summarizes the
continuing education hour requirements i n the 50 s t a t e s .
TABLE 7
SUMMARY OF CONTINUING EDUCATION HOUR REQUIREMENTS FOR
OSTEOPATHIC PHYSICIANS I N THE 50 STATES
Number Of Hours Per Year
No requirement
Less than 25 hours
25- 49 hours
50 hours or more
Total
Number Of States Percent
A s shown above, 23 s t a t e s require osteopathic physicians t o meet a
continuing education requirement. Of these, 16 mandate an average of 25
hours or more per year and only seven s t a t e s , including Arizona, require
l e s s than 25 hours. In addition, physicians licensed by the Board of
Medical Examiners are required to f u l f i l l 60 hours of continuing education
every three years; an average of 20 hours annually.
Most osteopathic physicians in Arizona obtain substantially more than 12
hours of continuing education per year. We randomly sampled continuing
education reports f i l e d by 44 physicians who applied for license renewal
i n 1980 and found the average continuing education reported was over 45
hours per physician; nearly four times the statutory requirement.
Changes Are Needed In
Board Compensation Statutes
Members of the Board of Osteopathic Examiners have been receiving
compensation at the rate of $ 30 per day pursuant to the provisions of
A. R. S. $ 38- 611, subsection D:
" Except as otherwise provided by s t a t u t e or specific
l e g i s l a t i v e appropriation members of boards,
commissions, councils or advisory committees who are
authorized by law to receive compensation may receive
compensation a t the r a t e of not to exceed t h i r t y
dollars for each day engaged i n the service of such
board, commission, council or advisory committee."
( ~ m ~ h a saidsd ed)
The section of law is a general provision which applies to most s t a t e
regulatory agencies similar to the Osteopathic Board. However, Board
statutes contain a separate provision on Board compensation which appears
to conflict with the general provisions in T i t l e 38. A. R. S. $ 32- 1802,
subsection C , s t a t e s :
" Each board member s h a l l receive f i f t y dollars for each
day actually engaged i n carrying out his duties as an
officer or member of the board, together with a l l
expenses necessarily and properly incurred i n attending
meetings or i n performing his duties. Compensation and
expenses shall be paid from the board fund." (~ mphasis
added)
According to Legislative Council, i n a memorandum dated July 10, 1981,"
the specific provisions of A. R. S. $ 32- 1802, providing f o r $ 50 per day
compensation, are applicable:
" A. R. S. section 32- 1802 was the subject of two
conflicting amendments passed by the 1970 Legislature.
Prior to these amendments, t h i s section authorized
compensation a t a r a t e of twenty dollars a day. Laws
1970, chapter 138 increased the compensation to f i f t y
dollars a day while Laws 1970, chapter 204 provided
that compensation would be paid under the provisions of
A. R. S. section 38- 611 which prescribed t h i r t y dollars
per day as compensation. These conflicting versions of
A. R. S. section 32- 1802 remained i n effect u n t i l 1973
when the chapter 204 version was repealed by the
Legislature i n Laws 1973, chapter 157. From that point
on it is clear that the f i f t y dollar per day
compensation rate controlled over the provisions of
A. R. S. section 38- 611. A specific exemption i s created
i n A. R. S. section 38- 611, subsection D by the phrase
' except as otherwise provided by s t a t u t e . ' A. R. S.
section 32- 1802 is a s t a t u t e which ' otherwise provides'
and is controlling. See also 70 Op. Att'y Gen. 13- L
( 1970) which is d i r e c t l y on point." ( ~ m ~ h a saidsd ed)
According to the Board's secretary- treasurer, the Board has been paying
$ 30 per day compensation since 1973 following the advice of a former
assistant Attorney General assigned to the Board.
In its opinion on the matter, Legislative Council noted that Arizona law
prescribes a 90- day s t a t u t e of limitations within which State o f f i c i a l s
must bring an action f o r salary owed. Board members could use the annual
omnibus claims b i l l to apply to the Legislature for payment of the correct
compensation. We estimated, based on number of Board meeting days in
f i s c a l year 1980- 81, that Board members were underpaid a t o t a l of $ 1,060.
The amount each board member was underpaid is dependent on individual
participation i n Board business.
* For f u l l text of t h i s memorandum, see Appendix V I .
44
CONCLUSION
Board s t a t u t e s require osteopathic physicians to f u l f i l l the equivalent of
12 hours of continuing education each year prior to renewing t h e i r
license. Our review found that the Board lacks authority to waive the
requirement or grant an extension i f the physician forgets t o meet the
requirement. Arizona's continuing education requirement is also minimal
compared to those s t a t e s that have continuing education requirements. In
addition, Board members have been receiving $ 30 per day compensation
consistent with most other State regulatory agencies. Board s t a t u t e s ,
however, r e q u i r e t h e Board to pay $ 50 per day compensation. A s a r e s u l t ,
Board members were underpaid a t o t a l of $ 1,060 i n f i s c a l year 1980- 81.
RECOMMENDATIONS
Consideration should be given to the following recommendations:
1. A. R. S. $ 32- 1825 be revised to e i t h e r : a) allow the Board more
f l e x i b i l i t y i n granting waivers and extensions on an annual
basis, or b) require t h a t continuing education be reported every
three years, r a t h e r than annually.
2. A. R. S. $ 32- 1825 be revised to allow the Board to e s t a b l i s h the
minimum continuing education requirement through its r u l e making
authority.
3. A. R. S. $ 32- 1802, subsection C, be repealed and that Board members
be compensated i n accordance with the provisions of A. R. S.
$ 38- 611.
OTHER PERTINENT INFORMATION
During the course of our audit of the Board of Osteopathic Examiners, the
following additional information was reviewed.
Survey of Complainants and Physicians
All complainants and physicians involved in complaints in 1979 and 1980
were surveyed to obtain their opinion of the ~ oard's complaint review
process. Responses were received from 39 ( 49 percent) of the complainants
and 28 ( 47 percent) of the physicians surveyed.
As shown in Table 8, doctors involved in complaints viewed the Board's
handling of their complaint more favorably than complainants. Eighty- two
percent of the physicians rated the quality of the Board's investigation
as or " very good" compared to 44 percent of the complainants.
About one third of the complainants ( 34 percent) believed the Board's
investigation was of poor quality.
TABLE 8
SUMMARY OF SURVEYED COMPLAINANT AND OSTEOPATHIC PHYSICIAN
OPINIONS OF THE BOARD'S COMPLAINT REVIEW PROCESS
Ve Ve I== No
Good Good - Poor - Poor 0 pinion
Quality of Investigation
Complainants
Physicians
Fairness of Review,
Impartiality
Complainants
Physicians
Opinion of
Final Decision
Complainants
Physicians
Most of the physicians ( over 80 percent) were a l s o s a t i s f i e d with the
i m p a r t i a l i t y of the Board's review and the Board' s f i n a l decision, whereas
complainants were more varied i n t h e i r opinion. Thirty- six percent of
complainants rated the i m p a r t i a l i t y of the Board's review as " good" or
" very good", 33 percent rated it as " poor" or " very poor", and 31 percent
expressed no opinion. Complainants were similarly divided i n t h e i r
assessment of the Board's f i n a l decision.
Most complainants ( 54 percent) said they would consider f i l i n g another
complaint with the Board, however only 31 percent believed the Board
protects the public from harmful or incompetent physicians. By c o n t r a s t ,
82 percent of the physicians surveyed believed the Board adequately
protects the public.
Board J u r i s d i c t i o n i n Fee Matters
A s noted on page 9, 42 percent of complaints received by the Board i n 1979
and 1980 involved physicians fees. Many of these complaints were, i n
f a c t , requests from insurance companies t o review the reasonableness of
charges f o r insurance purposes.
In August 1979, t h e s e c r e t a r y - t r e a s u r e r of the Board requested an opinion
from the a s s i s t a n t Attorney General assigned to the Board regarding the
Board's role and j u r i s d i c t i o n i n such matters. In response, the a s s i s t a n t
Attorney General rendered an opinion which stated t h a t each case must be
judged on its own merits:
" A complaint involving a ' f e e dispute' may or may not
c o n s t i t u t e unprofessional conduct as t h a t term is
defined under the Osteopathic Practice Act. Such a
determination can only be made based on the f a c t s of
the p a r t i c u l a r complaint."
According to the opinion, fee matters which may f a l l within the Board's
j u r i s d i c t i o n would include complaints involving rebates, unnecessary
testing on surgery, or f a l s e advertising.
In an opinion dated July 31, 1981, t h e L e g i s l a t i v e Council stated t h a t the
Board may also have j u r i s d i c t i o n over complaints pertaining to excessive
fees:
" - . . t h e Board may investigate any information which
appears t o show t h a t an osteopathic physician and
surgeon is or may be g u i l t y of unprofessional conduct.
Unprofessional conduct includes making f a l s e or
fradulent statements and any conduct contrary to the
e t h i c a l standards of the osteopathic medical
wrofession." The American Osteo~ athic Association Code
of Ethics reauires ~ h v s i c i a n fees to be reasonable and
t o compensate the physician f o r services a c t u a l l y
rendered.... If the information investigated is found to
be true, the Board may d i s c i p l i n e the physician as
provided i n A. R. S. $ 32- 1855 l ~ . " ( ~ m p h a s iasd ded)""
According to the Board's current a s s i s t a n t Attorney General, assigned t o
both the Osteopathic Board and the Board of Medical Examiners, f e e s a r e
the most d i f f i c u l t area f o r the two Boards to address. To c l a r i f y t h e i r
j u r i s d i c t i o n , he suggests t h a t t h e Boards could adopt a r u l e modeled a f t e r
the State Bar Rule which defines excessive fees for legal services.
Rule 29( a), DR 2- 106, subsections ( A) and ( B) of the Rules of the Supreme
Court s t a t e s the following:
"( A) A lawyer s h a l l not enter i n t o an agreement f o r ,
charge, or c o l l e c t an i l l e g a l o r c l e a r l y
excessive fee.
"( B) A fee is c l e a r l y excessive when, a f t e r a review
of the f a c t s , a lawyer of ordinary prudence would
be l e f t with a d e f i n i t e and firm conviction t h a t
the fee is i n excess of a reasonable fee.
Factors to be considered as guides i n determining
the reasonableness of a fee include the following:
* " Unprofessional conduct" is defined i n A. R. S. 32- 1854 and includes:
" Knowingly making any f a l s e or fradulent statement, written or o r a l ,
i n connection with the practice of medicine except as the same may be
necessary f o r accepted therapeutic purpose," and " any conduct or
practice contrary to recognized standards of e t h i c s of the osteopathic
medical profession ...." ** For the f u l l t e x t of t h i s opinion, see Appendix 111.
"( 1) The time and labor required, the novelty
and d i f f i c u l t y of the questions involved,
and the s k i l l requisite to perform the
legal service properly.
"( 2) The likelihood, i f apparent to the c l i e n t ,
that the acceptance of the particular
employment w i l l preclude other employment
by the lawyer.
"( 3) The fee customarily charged i n the
l o c a l i t y for s i m i l a r l e g a l services-
"( 4) The amount involved and the r e s u l t s
obtained.
"( 5) The time limitations imposed by the c l i e n t
or by the circumstances.
"( 6) The nature and length of the professional
relationship with the c l i e n t .
" ( 7 ) The experience, reputation, and a b i l i t y of
the lawyer or lawyers performing the
services.
" ( 8 ) Whether the fee is fixed or contingent."
According to the Board's assistant Attorney General, a s i m i l a r r u l e could
be developed and tailored to apply to the medical profession.
e PRESIDENT:
MICHAEL MIGNELLA, J. D.
101 NORTH FIRST AVENUE a515
PHOENIX, ARIZONA 8M03
VICE PRESIDENT:
RICHARD L. REILLY, D. O.
1719 EAST PRINCE ROAD
TUCSON. ARIZONA 85719
Q SECRETARY- TREASURER
RICHARD 0 . McGILL, D. O.
2020 WEST INDIAN SCHOOL ROAD # 46
PHOENIX. ARIZONA 85015
ARIZONA BOARD OF
OSTEOPATHIC EXAMINERS
IN MEDlClNE AND SURGERY
2020 West Indian School Road
Phoenix, Arizona 85015
( 602) 265- 5073
November 30, 1981
MEMBERS:
DANA S. DEVINE, D. O.
6501 NORTH 19TH AVENUE
PHOENIX, ARIZONA 85015
JACK I. VARON, D. O.
1638 NORTH COUNTRY CLUB ROAD
TUCSON. ARIZONA 85716
L. GEORGE HERSHEY, D. O.
2314 NORTH FOURTH STREET
FLAGSTAFF. ARIZONA 86001
Douglas R. Norton
Auditor General
L e g i s l a t i v e Services Wing, S u i t e 300
S t a t e Capitol
Phoenix, Arizona 85007
Dear M r . Norton:
This is the response o f t h e Arizona Roard of Osteopathic
Examiners i n Medicine and Surgery submitted following r e c e i p t
and review of t h e preliminary r e p o r t d r a f t of t h e performance
a u d i t conducted as p a r t of t h e Sunset review as set f o r t h i n
A. R. S. Sec. 41- 2351 through 41- 2379.
FINDING I
The Auditor General f i n d s t h a t improvements a r e needed i n t h e
Board's i n v e s t i g a t i o n and r e s o l u t i o n of complaints. The Roard
agrees and, i n f a c t , has been working toward t h i s very end.
A t t h e suggestion of the A s s i s t a n t Attorney General now
r e p r e s e n t i n g the Board, a l l complaints a r e being brought
before the Board f o r its review and, u l t i m a t e l y , a decision.
Likewise, t h e p r a c t i c e of sending a copy of t h e complaint t o
t h e physician complained about has been discontinued. Currently,
the physician is provided w i t h a n e x p l a n a t i o n o f the complaint
without d i s c l o s i n g t h e complainant ' s name.
5 1
Douglas R. Norton - Page 2
November 30, 1981
Regarding fee complaints, t h i s is a troublesome subject. I f
the Roard completely divests i t s e l f of j u r i s d i c t i o n in such
matters, t h i s leaves the consumer without any recourse. On
the other hand, the ~ o a r d ' sj u r i s d i c t i o n to address complaints
of t h i s s o r t i s unclear a t best. Accordingly, the Board
s o l i c i t s t h e a s s i s t a n c e of t h e L e g i s l a t u r e in defining
whether and t o what extent it should exercise a u t h o r i t y over
fee complaints. It would suggest t h a t there should possibly
be an addition t o the l i s t of a c t s comprising unprofessional
conduct such as " Charging or c o l l e c t i n g a c l e a r l y excessive
fee".
As f o r the ~ o a r d ' s Secretary- Treasurer reviewing complaints
involving p a t i e n t cases at Phoenix General Hospital ( t h e o t h e r
place of h i s employment), the Board does not believe t h a t t h i a
c o n s t i t u t e s a c o n f l i c t of i n t e r e s t . Nevertheless, it does
a p p r e c i a t e t h e Auditor's concern and therefore has directed
t h a t i t s Secretary- Treasurer recuse himself from investigations
and proceedings involving such matters . ( Addit i o n a l l y , h i s
contract with t h e h o s p i t a l w i l l terminate in May of 1982 and
w i l l not be renewed.) In t h i s vein, it should a l s o be noted
t h a t the claim described under " Exposure t o Legal Challenge"
misinterprets the operative f a c t s and was denied. As of t h i s
date, it has not otherwise been pursued.
F i n a l l y , the Auditor General finds t h a t the Roard lacks
i n v e s t i g a t i v e resources. The Roard f u l l y agrees. Investigative
Douglas R. Norton - Page 3
November 30, 1981
and physician/ consultant services would g r e a t l y strengthen the
c a p a b i l i t i e s of the Roard.
Concerning the recommendation t h a t the Osteopathic Board be
combined with the Board of Medical Examiners, the members of
the Osteopathic Board believe, very strongly, t h a t separate
licensure w i l l help preserve t h e d i s t i n c t i v e n e s s of the
osteopathic profession and f a c i l i t a t e i t s growth. An a l l o p a t h i c
or combined examination cannot as f u l l y or appropriately
measure and assure the competency of osteopathic physicians.
This is e s p e c i a l l y important in the f i e l d of osteopathic
manipulative therapy. The existence of s e p a r a t e l i c e n s i n g
a u t h o r i t y w i l l promote continued growth of the osteopathic
profession i n the s t a t e . Additionally, since 75% of a11
D. 0. s a r e general p r a c t i t i o n e r s , the profession can be expected
t o continue t o provide the kind of growth Arizonans need most.
The h i s t o r y and experience of the Arizona Board of Osteopathic
Examiners in Medicine and Surgery demonstrates i t s effectiveness
in most c a p a c i t i e s and j u s t i f i e s i t s continued existence.
FINDING 111
Concerning t h i s finding, s u f f i c e i s t o say t h a t the Board wholly
supports the Auditor General ' s recommendat ions concerning
continuing education requirements and Board Member compensation
and w i l l suggest proposed l e g i s l a t i o n t o correct t h e s e m a t t e r s .
Douglas R. Norton - Page 4
November 30, 1981
The Board d i s p u t e s t h e L e g i s l a t i v e Council's Opinion ( 0- 81- 81)
as contained i n Appendix V which states i n p a r t : " If t h e Board
g r a n t s a waiver of t h e educational requirement t o a l i c e n s e e
it has abandoned any claim it had a g a i n s t the l i c e n s e e f o r
t h e attendance of an approved educational program and cannot
r e q u i r e t h e l i c e n s e e t o make it up the next year."
The last s e n t e n c e o f Sec. 32- 1825, A. R. S. states, " A c e r t i f i c a t e
may be r e i n s t a t e d by complying with t h e conditions necessary
t o renew a l i c e n s e and the payment of an a d d i t i o n a l f e e of not
more than one hundred d o l l a r s . I '
I f a l i c e n s e c e r t i f i c a t e has been a u t o m a t i c a l l y suspended
because of f a i l u r e t o m e e t t h e educational requirement during
the previous year p r i o r t o January 1, a s i t u a t i o n e x i s t s
which is impossible t o m e e t without an extension of t i m e . To
meet " the conditions necessary t o renew a license" t h e l i c e n s e e
must a t t e n d an educational course which would have m e t t h e
requirement had it been attended i n the p r i o r year. Submission
of t h i s evidence t o g e t h e r with t h e a d d i t i o n a l f e e is the only
way a l i c e n s e can c u r r e n t l y be r e i n s t a t e d . The a l t e r n a t i v e t o
t h i s is permanent suspension of the l i c e n s e .
F i n a l l y , t h e Board questions the v a l i d i t y of t h e s t a t i s t i c s
contained i n Table 8, Page 47. It stands t o reason t h a t both
physicians and complainants w i l l rate t h e q u a l i t y of i n v e s t -
i g a t i o n , f a i r n e s s of review, i m p a r t i a l i t y and opinion of t h e
Douglas R. Norton - Page 5
November 30, 1981
f i n a l decision according t o the outcome, whether against them
or i n t h e i r favor.
Also included in t h i s response are proposed l e g i s l a t i v e
changes which w i l l correct most s i t u a t i o n s .
Respectfully submitted,
THE ARIZONA BOARD OF OSTEOPATHIC
EXAMINERS I N MEDICINE AND SURGERY
Michael Mignella, J . D . "
President of the Board
RON: kw
cc: A l l Board Members
C. E. Buri, Assistant Attorney General
PROPOSED CHANGES I N THE ARIZONA OSTEOPATHIC PRACTICE ACT
1. Sec, 32- 1802. C
Each board member s h a l l receive G& i€ ey ONE HUNDRED d o l l a r s
f o r each day a c t u a l l y engaged in carrying out h i s duties
as an o f f i c e r o r member of the board, together with a l l
expenses necessarily and properly incurred in attending
meetings or in performing h i s duties. Compensation and
expenses s h a l l be paid from the board fund.
Sec. 32- 1802. D New Subsection
MEMRERS OF THE BOARD SHALL BE PERSONALLY IMMUNE FROM SUIT
WITH RESPECT TO ALL ACTS DONE AND ACTIONS TAKEN I N GOOD
FAITH AND I N FURTHERANCE OF THE PURPOSES OF THIS CHAPTER.
2. Sec. 32- 1804. B New Item 8:
THERE SHALL BE NO MONETARY LIABILITY ON THE PART OF AND
NO CAUSE OF ACTION SHALL ARISE AGAINST THE SECRETARY-TREASURER
OR SUCH OTHER PERMANENT OR TEMPORARY PERSONNEL
OR PROFESSIONAL OSTEOPATHIC MEDICAL INVESTIGATORS FOR
ANY ACT DONE OR PROCEEDING UNDERTAKEN OR PERFORMED I N
GOOD FAITH AND I N FURTHERANCE OF THE PURPOSES OF THIS
CHAPTER.
3. Sec. 32- 1822.4
Sucessfully pass an examination as provided in t h i s chapter,
but the board may waive any such examination i f the
applicant possesses a c e r t i f i c a t e from t h e n a t i o n a l board
of examiners f o r osteopathic phys ic ians and surgeons
indicating he has been examined by questions approved by
Page 2
the board OR PRODUCES EVIDENCE THAT HE HAS PASSED THE
FEDERAL LICENS ING EXAMINAT ION ( FLEX) w ITH A WE IGHTED
GRADE AVERAGE AS ESTABLISHED BY THE OSTEOPATHIC ROARP,
or possesses a c u r r e n t l y a c t i v e l i c e n s e t o p r a c t i c e as
an osteopathic physician and surgeon issued under the
a u t h o r i t y of any other state, t e r r i t o r y or the D i s t r i c t
of Columbia, whose standards are comparable t o those
provided i n t h i s chapter, as determined by the board.
4. Sec. 32- 1835. E
The l i c e n s e e s h a l l f u r n i s h t o the s e c r e t a r y - t r e a s u r e r
evidence of having attended within the c a l e n d a r y e a r p r i o r
t o the renewal date, a R educational programs, approved
by the Amer& ea~- es~ eepaekie- asseeiaePeB~ O ARD, ef TOTALLING
a t l e a s t ewe- days- duraeie~ TWENTY CLOCK HOURS and s h a l l pay
t o the board the annual renewal fee of not more than figey
ONE HUNDRED d o l l a r s as prescribed by the Board. The
s e c r e t a r y - t r e a s u r e r s h a l l thereupon i s s u e a proper renewal
r e c e i p t t o the l i c e n s e e .
Sec. 32- 1835. C
F a i l u r e on t h e p a r t of the l i c e n s e e t o f u r n i s h evidence
of having attended a~- Americas- eseeepathie- asseeiae& e~
appreved- edueaeien- pregram THE REQUIRED NUMBER OF CLOCK
HOURS, during the preceding calendar year, s h a l l preclude
renewal of h i s l i c e n s e unless waived by the board upon
a p p l i c a t i o n t h e r e f o r . I f upon a p p l i c a t i o n f o r waiver the
Page 3
board finds t h a t the f a i l u r e of t h e l i c e n s e e t o a t t e n d
0
RR- appreved- ed~ ea~ ie~ a&- p~ egTHraE rRnE QUIRED NUMEER OF
CLOCK HOURS was due to the l i c e n s e e ' s d i s a b i l i t y , m i l i t a r y
service or absence from the ee~ Eiaeaga4 United S t a t e s of
America, or was due t o other circumstances beyond the
control of t h e l i c e n s e e which a r e deemed good and s u f f i -
c i e n t by the board, then upon notation of such finding
i n the record of the proceedings, the requirement s h a l l
be deemed waived f o r t h a t year only and the license s h a l l
be renewed upon the payment of the fees as herein provided. a
Failure t o renew a c e r t i f i c a t e s h a l l automatically
suspend the r i g h t s and p r i v i l e g e s granted under t h i s
chapter. IN THE EVENT THAT THE LICENSEE FAILS TO ATTEND
THE REQUIRED NUMBER OF CLOCK HOURS FOR REASONS OTHER
THAN THOSE SPECIFIED, THE FOARD MAY GRANT AN EXTENSION
OF TIME NOT TO EXCEED NINETY DAYS FOR THE LICENSEE TO
ATTEND THE REQUIRED NUMBER OF CLOCK HOURS IN WHICH HE I S
DEFICIENT. A eerkifieaEe SUSPENDED LICENSE may be r e i n s t a t e d
by complying with the conditions necessary t o renew a
license and the payment of an a d d i t i o n a l fee of not more
than one hundred d o l l a r s .
Sec. 32- 1835. D New Subsection @
THE BOARD MAY WAIVE THE ANNUAL REGISTRATION FEE AND EDUCATIONAL
REQUIREMENT WHEN A LICENTIATE PRESENTS SAT ISFACTORY EVIDENCE
THAT HE HAS PERMANENTLY RETIRED FROM THE PRACTICE OF a
OSTEOPATHIC MEDICINE AND HAS PAID ALL FEES REQUIRED BY THIS
CHAPTER PRIOR TO WAIVER.
Page 4
S e c . 32- 1835. E New S u b s e c t i o n
DURING SUCH PERIOD OF WAIVER HE SHALL NOT ENGAGE IN THE
PRACTICE OF OSTEOPATHIC MEDICINE AND A VIOLATION OF THIS
PROVISION SHALL SUBJECT HIM TO THE SAME PENALTIES AS ARE
IMPOSED IN THIS CHAPTER UPON A PERSON WHO PRACTICES
OSTEOPATHIC MEDICINE WITHOUT A LICENSE AND WITHOUT BEING
EXEMPT FROM LICENSURE UNDER THIS CHAPTER.
S e c . 32- 1835 . F New S u b s e c t i o n
THE BOARD MAY REINSTATE SUCH A RETIRED LICENTIATE TO ACTIVE
PRACTICE UPON PAYMENT OF THE ANNUAL REGISTRATION FEE AND
PRESENTATION OF EVIDENCE SATISFACTORY TO THE BOARD THAT HE
I S PHYSICALLY AND MENTALLY ABLE SAFELY TO ENGAGE IN
PRACTICE AND STILL POSSESSES THE MEDICAL KNOWLEDGE REQUIRED
THEREFOR. THE BOARD MAY REQUIRE SUCH PHYSICAL AND MENTAL
EXAMINAT ION AND SUCH EXAMINATION OF MEDICAL KNOWLEDGE AS
IT MAY DEEM NECESSARY TO DETERMINE THESE QUALIFICATIONS.
5. S e c . 32- 1854 D e f i n i t i o n - of u n p r o f e s s i o n a l c o n d u c t
( The b o a r d suggests that the f o l l o w i n g b e a d d e d t o the l i s t
o f d e f i n i t i o n s of u n p r o f e s s i o n a l c o n d u c t . They may s i m p l y
b e a d d e d or else i n s e r t e d w h e r e v e r it would be more a p p l i c a b l e
c h r o n o l o g i c a l l y . )
a. FAILING OR REFUS ING TO MAINTAIN RECORDS ON A PATIENT OR
FAILING OR REFUSING TO MAKE SUCH RECORDS PROMPTLY AVAIL-ABLE
TO ANOTHER PHYSICIAN UPON REQUEST AND RECEIPT OF
PROPER AUTHORIZATION.
Page 5
b. USE OF CONTROLLED SUBSTANCES OR PRESCRIPTION ONLY DRUGS
EXCEPT WHEN PROVIDED BY ANOTHER PHYSICIAN DURING A
COURSE OF TREATMENT.
c . PRESCRIBING CONTROLLED SUESTb; SCES TO MEMBERS OF ONE ' S
IMMED UTE FAMILY.
d. PRESCRIBING CONTROLLED SUBSTANCES INCLUDING EUT NOT
LIMITED TO AMPHETAMINES AND S IMILAR S YMPATHOMIMET IC
DRUGS I N THE TREATMENT OF OBESITY IN EXCESS OF THIRTY
DAYS IN ANY ONE CALENDAR YEAR OR THE NON- THERAPEUTIC
USE OF INJECTABLE AMPHETAMINES.
e . VIOLATION OF A FORMAL ORDER, PROBATION OR STIPULATION
ISSUED BY THE BOARD UNDER THE PROVISIONS OF THIS CHAPTER
f . CHARGING OR COLLECTING A CLEARLY EXCESSIVE FEE.
g . USE OF EXPERIMENTAL FORMS OF THERAPY WITHOUT PROPER
INFORMED PATIENT CONSENT AND WITHOUT CONFORMING TO
GENERALLY ACCEPTED CRITERIA, WHICH SHALL INCLUDE
PROTOCOLS, DETAILED LEGIBLE RECORDS, PERIODIC ANALYS IS
OF RESULTS AND PERIODIC REVIEW BY A COMMITTEE OF PEERS.
APPENDIX I
LEGISLATIVE COUNCIL OPINION ( 0- 81- 66 )
JULY 22, 1981
M E M O
TO: Douglas R. Norton
Auditor General
FROM: Arizona Legislative Council
July 22, 1981
R E: Request for Research and Statutory Interpretation ( 0- 8146)
This is in response t o a request submitted on your behalf by Gerald A. Silva in a
memo dated July 10, 1981. No input was received from the attorney general concerning
this request.
FACT SITUATION:
The secretary- treasurer of the board of osteopathic examiners in medicine and
surgery ( board) serves as administrative assistant to the board and performs such other
functions as are authorized by Arizona Revised Statutes ( A. R. S.) section 32- 1804,
subsection B. The secretary- treasurer has reviewed and resolved numerous complaints
against osteopathic physicians on his own initiative without any formal board action or
involvement.
QUESTIONS PRESENTED:
1. Does the secretary- treasurer of the board have the authority to review
complaints against osteopathic physicians and surgeons on his own initiative without board
authorization or involvement?
2. Can the board authorize the secretary- treasurer t o act in its behalf in
reviewing and resolving complaints against osteopathic physicians and surgeons?
3. If so, what formal board action would be required to empower the
secretary- treasurer to act on the board's behalf?
4. If the secretary- treasurer has improperly acted on the board's behalf in
reviewing and resolving complaints against osteopathic physicians, what are the
ramifications t o t h e board, the secretary- treasurer, the licensee?
ANSWERS:
1. Administrative officers and agencies have no common law or inherent powers.
Their powers and duties a r e to be measured by the s t a t u t e creating them. Kendall
v. Malcolm, 98 Ariz. 329, 404 P. 2d 414 ( 1965).
A. R. S. section 32- 1803 provides that:
A. The board qhall:
1. Conduct all examinations for applicants for a license under this
@ chapter, issue licenses, conduct hearings, place physicians on probation,
revoke or suspend licenses, and administer and enforce all provisions of this
chapter.
2. Be charged with and enforce within the osteopathic profession in
this s t a t e the standards of practice prescribed by this chapter and the rules
and regulations adopted by the board pursuant to the authority granted by
this chapter.
5. Maintain a record of its acts and proceedings, including, but not
limited to, the issuance, refusal, renewal, suspension or revocation of
licenses to practice according to the terms of this chapter.
D. The board may make and adopt rules and regulations necessary or
proper for the administration of this chapter.
This section confers broad discretionary licensing and enforcement powers on the board.
A. R. S. section 32- 1804 provides that:
A. The board shall appoint a secretary- treasurer, not a member of
the board, who shall serve at the pleasure of the board and who shall receive
compensation as determined pursuant to section 38- 61 1 to be paid from the
board fund, payable in monthly installments.
B. The secretary- treasurer shall:
I. Serve as administrative assistant to the board.
2. Collect all monies due and payable to the board.
3. Pay to the state treasurer any monies received by the board.
4. Prepare bills for authorized expenditures of the board and obtain
warrants from the department of administration division of finance for ,
payment of bills certified by the president or vice- president and
secretary- treasurer of the board. ,
5. Administer oaths.
6. Act as custodian of the seal, books, records, minutes and
proceedings.
7. Do and perform any other duty prescribed for him elsewhere in
this chapter.
This section is a delineation of nondiscretionary ministerial or administrative acts
required of the secretary- treasurer. The authority to review and resolve complaints is
not included.
With regard to the complaint process only the board has authority to review and
resolve complaints against osteopathic physicians and surgeons. A. R. S. section 32- 1855
provides that: 1
A. The board on its own motion may investigate any information
which appears to shgw that an osteopathic physician and surgeon is or may
be guilty of unprofessional conduct or is or may be mentally or physically
unable safely to engage in the practice of medicine. Any osteopathic
physician or surgeon or the Arizona osteopathic medical association or any
health care institution as defined in section 36- 401 shall, and any other
person may, report to the board any information such physician or surgeon,
association, health care institution or such other person may have which
appears to show t h a t a n osteopathic physician and surgeon is or may be
guilty of unprofessional conduct or is or may be mentally or physically
unable safely to engage in the practice of medicine. Any person who reports
or provides information to the board in good faith shall not be subject to an
action for civil damages as a result thereof and such person's name shall not
be disclosed unless such person's testimony is essential to the disciplinary
proceedings conducted pursuant to this section. It shall be an act of
unprofessional conduct for any osteopathic physician or surgeon to fail to
report as required by this section. Any health care institution which fails to
report as required by this section shall be reported by the board to such
institution's licensing agency.
B. If, in the opinion of the board, it appears such information i s or
may be true, the board may request an informal interview with the physician
concerned. . . m a s i s. a dded.)
D The only statutory provision regarding the secretary- treasurer and the complaint process
is A. R. S. section 32- 1855.01, which states that:
A. In connection with the investigation by the board on its own
motion or as the result of information received pursuant to section 32- 1855,
subsection A, the board or its duly authorized agents or employees shall at
all reasonable times have access to, for the purpose of examination, and the
right to copy any documents,- reports, records or any other physical evidence
of any person being investigated, or the reports, records and any other
documents maintained by and in possession of any hospital, clinic,
physician's office, laboratory, pharmacy or any other public or private
agency, and any health care institution as defined in section 36- 401, if such
documents, reports, records or evidence relate to medical competence,
unprofessional conduct, or the mental or physical ability of an osteopathic
physician or surgeon safely to practice medicine.
B. For the purpose of all investigations and proceedings conducted by
the board:
I. The board on its own initiative, or upon application of any person
involved in the investigation, may issue subpoenas compellin~ the
attendance and test imony of witnesses, or demanding the production for
examination or copying of documents or any other physical evidence if such
evidence relates to medical competence, unprofessional conduct, or the
mental or physical ability of an osteopathic physician or surgeon safely to
practice medicine. Within five days after the service of a subpoena on any
person requiring the production of any evidence in his possession or under his
control, such person may petition the board to revoke, limit or modify the
subpoena. The board shall revoke, limit or modify such subpoena if in its
opinion the evidence required d& s not relate to unlawful practices covered
by this chapter, is not releCant to the charge which is the subject matter of
the hearing or investigation, or does not describe with sufficient
C particularity the physical evidence whose production is required. Any
member of the board, or any agent designated by the board may administer
oaths or affirmations, examine witnesses and receive such evidence.
( Emphasis added.)
- The secretary- treasurer has only those powers and duties as prescribed by statute.
A. R. S. section 32- 1804 and 32- 1855.01 set forth the duties of the secretary- treasurer.
They are nondiscretionary and ministerial in mture. The secretary- treasurer does not
have the authority to review complaints against osteopathic physicians and surgeons. It is
the responsibility of the board to investigate complaints against osteopathic physicians
and surgeons.
2. An administrative board cannot legally confer upon its employees
authority that under law may be exercised only by the board. . . . 2
Am. Jur. 2d Administrative Law section 222 ( 1962).
The board cannot authorize the secretary- treasurer to act in its behalf by reviewing and
resolving complaints against osteopathic physicians and surgeons because the legislature
made the board responsible for enforcing the standards of practice within the osteopathic
profession and investigating complaints. A. R. S. sections 32- 1803, subsection A, paragraph
2 and 32- 1855.
The legislature apparently intended those functions to be performed by the persons
designated as members of the board.
-/ v f i t is reasonable to believe the legislature intended a particular function
to be performed by designated persons because of their special
qualifications, then a subdelegation is invalid; but where no particular
qualifications are necessary for the exercise of a function its exercise may
be delegated to subordinate officials. Sutherland, Statutes and Statutory
Construction section 4.14 ( 4th ed., Sands, 1972).
The board cannot delegate its enforcement responsibilities to the secretary- treasurer.
3. See answer 2.
4. The function of this office in connection with performance audits by the auditor
general is to provide legal research and statutory interpretation. It would be
inappropriate for this office to apply legal principles to a question which asks what the
impact of a particular administrative action would be if the result would imply the same
conclusion in all cases. A subjective application of the law can only be done on a
case- by- case basis and is properly left to the administrative authority in the first
instance and to the courts in the second.
CONCLUSIONS:
1. The secretary- treasurer of the board does not have authority to review
complaints against osteopathic physicians and surgeons.
2. The board cannot delegate its enforcement responsibilities to the secretary-treasurer
.
3. See answer 2.
. - 4. It would be inappropriite f w this office to answer this question for the reasons
set forth above. , ,
cc: ~ e r a i d A . ~ i l ; a
Performance Audit Manager
APPENDIX I1
LEGISLATIVE COUNCIL OPINION ( 0- 81- 75 )
AUGUST 4, 1981
August 4, 1981
TO: Douglas R. Norton
Auditor General
FROM: Arizona Legislative Council
RE: Request for Research and Statutory Interpretation ( 0- 81- 75)
This is in response to a request submitted on your behalf by Gerald A. Silva in a
memo dated July 27, 1981. No input was received from t h e Attorney General concerning
this request.
FACT SITUATION:
Arizona - ~ e v i s e dS tatutes ( A. R. s.) section 32- 1855, subsection A provides that any
person may report to the ?\ rizona Board of Osteopathic Examiners in Medicine and
Surgery ( Board) an osteopathic physician who may be guilty of unprofessional conduct or
unable to safely practice medicine. In addition, the law states that:
Any person who reports or provides information to the board in good faith
shall not be subject to an action for civil damages as a result thereof and
such person's name shall not be disclosed unless such person's testimony is
essential to the disciplinary proceedings conducted pursuant to this section.
As a matter of procedure, the Board normally sends copies of signed complaints to
the respondent osteopathic physician f o r t h e purpose of obtaining the doctor's rebuttal.
D Many of these complaints are resolved without formal Board action.
QUESTIONS PRESENTED:
1. Does the practice of sending signed complaints to the doctor involved in the
complaint comply with the provisions of A. R. S. section 32- 1855, subsection A?
m
2. What are the ramifications if the Board has not acted properly in this regard?
ANSWERS:
It is an elementary rule of statutory construction that each word in a statute will
be given effect. Sutherland, Statutes and Statutory Construction section 46.06 ( 4th ed.,
Sands, 1972); State v. Superior Court for Maricopa County, 113 Ariz. 248, 550 P. 2d 626
( 1976). The words of a statute are to be given their common meaning unless it appears
from the context or otherwise that a different meaning is intended. Ross v. Industrial
- Commission, 112 Ariz. 160, 54aP. 2d 1234 ( 1975). A. R. S. section 32- 1855, subsection A
provides in relevant part as follows: .
b '. r l
Any person who reports or provides information to the board in good faith
shall not be subject to an action for civil damages as a result thereof and
such person's name shall not be disclosed unless such person's testirnony is
essential to the disciplinary proceedin~ sc onducted pursuant to this section.
l ~ m ~ h a saidsde d.)
It is a fundamental rule of statutory construction t h a t plain, clear and
unambiguous language of a statute is to be given that meaning unless
impossible or absurd consequences may result. Balestrieri v. Hartford
Accident and Indemnity Insurance Co., 112 Ariz. 160, 163, 540 P. 2d 126, 129
'( 1975).
The meaning of the language in A. R. S. section 32- 1855, subsection A prohibiting
disclosure of names is clear. The name of any person who reports or provides information
to the Board in good faith shall not be disclosed unless such person's testimony is essential
to a disciplinary proceeding conducted pursuant to A. R. S. section 32- 1855. Giving the
language of this statute its plain meaning does not result in impossible or absurd
consequences.
The Board's practice of sending a copy of the signed complaint to the osteopathic
physician involved in the complaint for the purpose of resolving the complaint without any
formal Board action does not comply with A. R. S. section 32- 1855, subsection A. In cases
where the Board takes formal action under A. R. S. section 32- 1855 disclosure of t h e name
of the cornplainant may be necessary to advise the accused physician of the charges
against him. See 61 Am. Jur. 2d Physicians, Surgeons, etc. sections 105 and 114 ( 1962).
2. The function of this office in connection with performance audits by the
Auditor General is to provide legal research and statutory interpretation. It would be
inappropriate for this office to apply legal principles to a question which asks what the
impact of a particular administrative action would be if the result would imply the same
conclusion in all cases. A subjective application of the law can only be done on a
case- by- case basis and is properly left to the administrative authority in the first
instance and to the courts in the second.
cc: Gerald A. Silva
Perfor nance Audit Manager
APPENDIX 1x1
LEGISLATIVE COUNCIL OPINION ( 0- 81- 74)
JULY 31, 1981
July 31, 1981
TO: Douglas R. Norton
8 Auditor General
FROM: Arizona Legislative Council
RE: Request for Research and Statutory Interpretation ( 0- 81- 74)
Q
This is in response to a request subinitted on your behalf by Gerald A. Silva in a
memo dated July 27, 1981. No input was received from the attorney general concerning
this request.
FACT SITUATION:
0
The Board of Osteopathic Examiners ( Board) has received many complaints frorn
the public pertaining to fees charged by osteopathic physicians. On occasion, insurance
carriers have also contacted or have becn referred to the Roard for a review of physician
charges. In some cases, the Roard has taken the position that disputes over fees are not
within its jl~ risdiction and no action has been taken. However, in cases involving very
@ excessive fees and possible fraud the Board has reviewed the matter and made a
determination as to the appropriateness of the fees. Where the Board has determined fees
to be excessive, the complainant or insurance carrier has been so notified and the doctor,
on occasim, asked to adjust the fee or refund the overcharges.
QUESTIONS PRESENTED:
1. Does the Board have jurisdiction to review matters pertaining to physician fees?
2. If the Board determines that a fee is excessive, does the Roard have authority
to so notify the cornplainant and request the doctor to adjust the fee or refund the
overcharge?
3. Is the Board required to hold an informal interview or formal hearing with the
doctor if i t determines fees to be excessive or to involve possible fraud?
4. What are the ramifications if the Roard has not taken proper action on matters
pertaining to fees?
ANSWERS:
1. Administrative officers and agencies have no common law or inherent powers.
Their powers a r e t o be measured by the statute creating them. - K-- e ndall v-. Malcolm, 98
D Ariz. 329, 404 P. 2d 414 ( 1965).
t
The Board rnay investig3te any information which appears to show that an
osteopathic physician and surgeon is or rnay be g ~ ~ i l ot fy unprofessional corlduct or is or
may be mentally or physically cli~ able safely to