A performance audit of the Board of Osteopathic Examiners Compliant Review Process

              STATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
A PERFORMANCE AUDIT
OF THE
BOARD OF OSTEOPATHIC EXAMINERS
COMPLAINT REVIEW PROCESS
DECEMBER 1983
A REPORT TO THE
ARIZONA STATE LEGISLATURE
REPORT 83- 22
DOUGLAS R. NOR? ON. CPA
AUDITOR GENERAL
STATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
December 21, 1983
Members of the Arizona Legislature
The Honorable Bruce Babbitt, Governor
Dr. Dana S. Devine, President
Board of Osteopathic Examiners
Transmitted herewith is a report of the Auditor General, A Performance
Audit of the Board of Osteopathic Examiners' complaint review process.
This report is in accordance with Senate Bill 1379 enacted in 1982.
The blue pages present a summary of the report; a response from the Board
of Osteopathic Examiners is found on the yellow pages.
My staff and I will be pleased to discuss or clarify items in the report.
Respectfully submitted,
Douglas R. Norton
Auditor General
William Thomson, Manager
Performance Audit Division
Staff: Peter N. Francis
Deborah A. Baldwin
Kimberly S. Hildebrand
Enclosure
1 11 WEST MONROE SUITE 600 PHOENIX. ARIZONA 85003 ( 602) 255- 4385
OFFICE OF THE AUDITOR GENERAL
A PERFORMANCE AUDIT OF THE
BOARD OF OSTEOPATHIC EXAMINERS
COMPLAINT REVIEW PROCESS
A REPORT TO THE
ARIZONA STATE LEGISLATURE
REPORT 83- 22
SUMMARY
INTRODUCTION AND BACKGROUND
FINDING
TABLE OF CONTENTS
Page
Despite recent improvements, the Board of
Osteopathic Examiners' complaint review process
continues to be deficient.
CONCLUSION
RECOMMENDATION
OTHER PERTINENT INFORMATION
SUMMARY
The Office of the Auditor General has conducted a follow- up review of the
Board of Osteopathic Examiners in Medicine and Surgery's complaint review
process as required by Senate Bill 1379 enacted by the Legislature in 1982.
The Board of Osteopathic Examiners in Medicine and Surgery is responsible
for examining and licensing osteopathic physicians and surgeons, renewing
licenses annually, reviewing complaints, holding hearings and enforcing
the standards of practice of the osteopathic profession.
The Board of Osteopathic Examiners has made some improvements in its
complaint handling procedures since the previous audit. The Executive
Director no longer has excessive complaint review authority. The current
Executive Director, hired in May 1983, implemented changes modeled after
the Board of Medical Examiners' ( BOMEX's) complaint handling procedures.
All complaints are sent to an outside reviewer and ultimately to the full
Board for review. The Board no longer requests physicians to refund money
or adjust their fees. In addition, due to a statutory amendment, the
Board is no longer in violation of A. R. S. $ 32- 1855 regarding patient
confidentiality. The Board has also employed a part- time investigator to
assist in complaint processing.
Despite these improvements, the Board's complaint handling process
continues to be deficient. Complaints are not being processed in a
timely, thorough manner. Of the 122 complaints received by the Board from
January 1982 through August 1983, 34 or 28 percent were not resolved at
the time of our review. As of October 1983, 18 of the 34 pending
complaints were over 6 months old. Further, the investigation of several
complaints appeared incomplete. In some of these cases the doctors
involved had multiple complaints filed with the Board. The complaint
problems are partially attributable to ( 1) turnover of the Board's
administrative director and ( 2) the lack of a full- time investigator and
medical consultant for adequate investigation and review. The Board
should either be provided with resources or combined with BOMEX. Combining
the Boards would provide the types of resources needed by the Board and
e l i m i n a t e p o s s i b l e d u p l i c a t i o n . The Boards have similar scopes of
p r a c t i c e , and 30 s t a t e s have combined Boards. ( In a t l e a s t eighteen of
these s t a t e s , osteopathic physicians a r e one of several health occupations
regulated by a centralized " umbrella" agency.)
INTRODUCTION AND BACKGROUND
The Office of the Auditor General has conducted a follow- up review of the
Board of Osteopathic Examiners i n Medicine and Surgery's complaint review
process a s required by Senate B i l l 1379 enacted by the L e g i s l a t u r e i n
1982. This review is based on findings contained i n report number 81- 16,
A Performance Audit of The Board of Osteopathic Examiners i n Medicine and
Surgery, dated December 1981.
The Osteopathic Board of R e g i s t r a t i o n and Examination was o r i g i n a l l y
e s t a b l i s h e d by the L e g i s l a t u r e i n 1949. The Board l a t e r became the
current Board of Osteopathic Examiners i n Medicine and Surgery ( Board).
The Board is responsible f o r examining and l i c e n s i n g osteopathic
physicians and surgeons, renewing l i c e n s e s annually, reviewing complaints,
holding hearings and enforcing the standards of p r a c t i c e of the
osteopathic profession. The Board is comprised of f i v e members of whom
four a r e licensed, p r a c t i c i n g osteopaths and one is a r e p r e s e n t a t i v e of
the public.
Osteopathic medicine i s a branch of medical science. Doctors of
Osteopathy ( DOs) l i k e Doctors of Medicine ( MDs), have premedical
education, four years of t r a i n i n g i n a medical c o l l e g e , and a one- year
h o s p i t a l i n t e r n s h i p . However, DOs have a d d i t i o n a l t r a i n i n g i n recognizing
and c o r r e c t i n g musculoskeletal problems. The scopes of medical p r a c t i c e
of DOs and MDs are e s s e n t i a l l y the same.
Audit Scope
The scope of t h i s a u d i t is l i m i t e d t o a review of the Board's complaint
review process. Auditor General r e p o r t number 81- 16 s t a t e d t h a t
improvements were needed i n the Board's complaint review process and t h a t
the Board lacked adequate resources t o thoroughly i n v e s t i g a t e complaints.
Our follow- up complaint study consisted of reviewing a l l complaints
received by the S t a t e Osteopathic Board f o r the period January 1982
through August 1983. Of t h e 122 cases reviewed, 88 or 72 percent had
f i n a l a c t i o n taken at the time of our review.
The Auditor General and s t a f f express a p p r e c i a t i o n t o the employees and
members of the Board of Osteopathic Examiners i n Medicine and Surgery f o r
t h e i r cooperation and a s s i s t a n c e during the course of t h i s a u d i t .
DESPITE RECENT IMPROVEMENTS, THE BOARD OF OSTEOPATHIC EXAMINERS' COMPLAINT
REVIEW PROCESS CONTINUES TO BE DEFICIENT.
Despite some improvements, the Board of Osteopathic Examiners' complaint
handling process continues to be deficient. Complaints are not being
processed in a timely, thorough manner. These problems are partially
attributable to turnover in the Board's Executive Director position and a
lack of resources for adequate investigation and review. The Board should
either be provided with resources or combined with the Board of Medical
Examiners ( BOMEX).
Improvements Made Since Prior Audit
The Board of Osteopathic Examiners in Medicine and Surgery has made some
improvements in its complaint review process since Auditor General report
number 81- 16 was completed:
e The Board previously had given the Secretary- Treasurer, now
referred to as the Executive Director,* excessive
complaint- handling responsibility. The Board delegated the
authority to informally hear minor complaints, thus most
complaints were resolved without Board involvement. The Board's
current Executive Director, appointed in May 1983, has developed
complaint review procedures modeled after BOMEX. Currently, the
Executive Director sends complaints to an outside reviewer and
ultimately to the full Board for review.
e The previous audit found that the Board, on occasion, requested
doctors to adjust their fees or refund money. The Statutes did
not provide the Board with such authority. The Board no longer
requests physicians to refund money or adjust their fees.
* With the hiring of the Board's latest administrator, this position's
title was changed from Secretary- Treasurer to Secretary-~ reasurerl
Executive Director and will hereafter be referred to as Executive
Director.
e In our i n i t i a l a u d i t r e p o r t , we recommended t h a t the Board no
longer send signed complaints t o t h e physicians involved. This
p r a c t i c e was not permitted by s t a t u t e unless the person's
testimony would be e s s e n t i a l t o d i s c i p l i n a r y proceedings. Due t o
a s t a t u t o r y amendment, the Board is no longer i n v i o l a t i o n of the
c o n f i d e n t i a l i t y p r o v i s i o n s o f A. R. S. $ 32- 1855, subsection A. The
s t a t u t e was amended i n J u l y 1983 t o allow the Board, unless
s p e c i f i c a l l y requested not t o , t o d i s c l o s e t h e name of a
complainant t o a physician.
". . . Any person who r e p o r t s or provides information
t o the board i n good f a i t h s h a l l n o t b e subject t o an
a c t i o n f o r c i v i l damages and as a r e s u l t thereof and,
i f requested, such person's name s h a l l not be
d i s c l o s e d u n l e s s such person's testimony is e s s e n t i a l
t o the d i s c i p l i n a r y proceedings conducted pursuant t o
t h i s section." ( emphasis added)
Further Im~ rovements Needed i n
Complaint Handling Process
I n s p i t e of improvements made since our i n i t i a l r e p o r t , the Board s t i l l
does not adequately i n v e s t i g a t e and resolve complaints. Complaints a r e
not being processed i n a timely and thorough manner.
Complaints Are Backlogged - Complaints a r e backlogged* and the Board has
been unable t o resolve complaints i n a timely manner. Of the 122
complaints received by the Board from January 1982 through August 1983, 34
or 28 percent were not resolved a t t h e time of our review. A s of October
1, 1983, approximately h a l f of the 34 had been pending f o r s i x months or
more, while f i v e were over a year old. The breakdown of these pending
complaints is presented i n the following t a b l e .
* The backlog is p a r t i a l l y a t t r i b u t a b l e t o t h e Board's ceasing t o
process complaints from February through June 1983 due t o lack of
funds ( s e e page 12).
0 - 3 months*
3 - 6 months
6 - 9 months
9 - 12 months
Over one year
A s the Board meets q u a r t e r l y and the last meeting was on October 1, 1983,
complaints w i l l not be brought before the Board u n t i l January 1984.
Therefore, i n January the Board w i l l have 34 pending complaints plus those
received between September 1983 and January 1984.
Lack of Thoroughness - I n a d d i t i o n , a l l complaints a r e not thoroughly
investigated. During our review of complaints, we noted s e v e r a l cases
where i n v e s t i g a t i o n appeared incomplete. In some cases the doctors
involved have had a h i s t o r y of v i o l a t i o n s and complaints. The following
case examples i l l u s t r a t e lack of timely, thorough i n v e s t i g a t i o n s :
Case I**
The physician involved i n t h i s c a s e h a s a long h i s t o r y of drug- related
problems. In July 1972, he was a r r e s t e d a f t e r attempting t o 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. In 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 t h e
U. S. D i s t r i c t Court i n Arizona.
Following h i s criminal convictions, the Board censured the doctor and
placed him on probation f o r 10 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.
* These complaints had been recently received a t t h e time of our a u d i t .
Although not p a r t of the Board's backlog, they c o n t r i b u t e t o the
Board's f u t u r e work load. ** This case was a l s o addressed i n our previous a u d i t .
In 1976, a Board of Pharmacy inspector discovered t h a t t h e doctor, who
still was on Board- ordered probation, had been prescribing and
obtaining l a r g e amounts of Demerol ( an a d d i c t i v e pain 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 addiction, 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, t h e 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 t h e d o c t o r ' s physical
condition could be f u l l y evaluated. In 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 11* ( n a r c o t i c ) substances.
In 1979, a Board of Pharmacy inspector found t h a t t h e 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 prescribe Schedule
I1 substances, contrary t o t h e 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 doctor surrendered h i s Schedule
I1 permit t o Federal a u t h o r i t i e s . During t h e hearing, the Board
discussed a notarized statement from the d o c t o r ' s wife i n d i c a t i n g t h a t
she had used p r e s c r i p t i o n blanks presigned by her husband t o obtain
Demerol supposedly f o r p a t i e n t s but i n r e a l i t y f o r her own personal
* The Drug Enforcement Administration c l a s s i f i e s c o n t r o l l e d substances
i n t o f i v e c a t e g o r i e s 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 I substances a r e i l l e g a l drugs f o r which no
p r e s c r i p t i o n s can be w r i t t e n , e. g., marijuana and LSD. Schedule I1
and I11 drugs may be both physically and psychologically addicting,
e. g., codeine and cocaine. Schedule I V drugs may lead t o limited
psychological o r physical addiction. Schedule V drugs have a use
p o t e n t i a l and dependency l e s s than a I V .
use. The doctor was subsequently sent a l e t t e r informing him t h a t it
is dangerous and unlawful f o r a physician t o give presigned
p r e s c r i p t i o n blanks t o anyone. He was a l s o advised t h a t no r e l a t i v e
should be working i n h i s o f f i c e .
I n 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 a d d i c t i v e Schedule I V
substance, had been w r i t t e n by the doctor. Three of t h e 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 doctor, who indicated the
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.
I n May 1982, the Board terminated the d o c t o r ' s probation, which was
o r i g i n a l l y scheduled t o end January 1984, and recommended
reinstatement of the d o c t o r ' s Schedule I1 DEA c e r t i f i c a t e . As of
October 1983, the DEA had not r e i n s t a t e d the d o c t o r ' s Schedule I1
permit, and DEA is requesting d e n i a l of the permit reinstatement.
In June 1983, a BOMEX i n v e s t i g a t o r was informed by two pharmacists
t h a t t h e doctor was prescribing Talwin t o two p a t i e n t s and it was
being picked up by the d o c t o r ' s wife. Although the d o c t o r ' s o f f i c e
was located i n S c o t t s d a l e , the p a t i e n t s l i v e d on t h e west s i d e of
Phoenix. A f t e r a n i n v e s t i g a t i o n , the p o l i c e obtained a search warrant
f o r the d o c t o r ' s o f f i c e . In the search, t h e p o l i c e discovered two
empty v i a l s of Talwin and an empty b o t t l e of Demerol i n the d o c t o r ' s
desk. The doctor s t a t e d t h a t he obtained Talwin by writing
p r e s c r i p t i o n s " for o f f i c e use only." The p o l i c e a l s o found a r e c e i p t
i n excess of $ 500 f o r 10 c a r t o n s of Talwin a l l e g e d l y shipped t o t h e
d o c t o r ' s o f f i c e . The doctor informed the p o l i c e t h a t he had no idea
where the Talwin was, and t h a t he kept no records of drugs brought
i n t o or leaving h i s o f f i c e . The i n v e s t i g a t i o n a l s o revealed t h a t the
d o c t o r ' s wife had been phoning i n p r e s c r i p t i o n s f o r Talwin under
p a t i e n t s ' names. Office s t a f f indicated that h i s wife was i n j e c t i n g
p a t i e n t s with Talwin. She was subsequently arrested and booked on two
counts of obtaining a narcotic drug by fraud.
In September 1983, the Board held an informal interview with the
doctor. Although the Board expressed concern over the empty b o t t l e of
Demerol found i n the doctor's desk, the Board dismissed the case. The
doctor assured the Board he was not using Demerol personally, and h i s
wife did not work i n h i s o f f i c e .
Comments
Although both the doctor and h i s wife had a history of drug- related
problems, no follow- up was undertaken i n t h i s case. The Board did not
request physical and psychological exams of the doctor t o determine i f
he had resumed using drugs. This is p a r t i c u l a r l y disturbing since ( 1)
the doctor was previously addicted t o Demerol, the empty drug
container found i n h i s desk drawer, and ( 2) Demerol is a Schedule I1
drug which he should not have had i n h i s possession. The Board has
the authority t o request exams f o r doctors suspected of drug use, and
could have exercised t h i s authority.
The Board accepted the doctor's testimony without adequately pursuing
questions raised i n a police report obtained by the Board. In
addition t o not determining how the Demerol found i n h i s desk had been
used, the Board also did not determine ( 1) whether h i s wife was
i n j e c t i n g patients with Talwin and ( 2) whether the Talwin purchased
for o f f i c e use had been used f o r accepted therapeutic purposes.
Case 2
In February 1982, the Board was notified by an insurance company of a
malpractice claim indicating that a Summons and Complaint had been
f i l e d i n the Superior Court against an osteopathic physician. The
patient was suing the doctor f o r negligence.
The physician had t r e a t e d the p a t i e n t since August 1979 f o r a
recurring muscle spasm i n the upper r i g h t back region. I n a January
1980 o f f i c e v i s i t , the doctor i n s e r t e d approximately four needles i n t o
her upper back i n t h e a r e a i n which the spasm was located. During the
treatment the doctor allegedly perforated t h e p a t i e n t ' s lung causing
it t o collapse.
Comment
I n February 1982, a letter was sent t o the d o c t o r r e q u e s t i n g a l l
records on the case. The complaint came before t h e Board i n an
October 1982 meeting eight months l a t e r . The s t a t u s of the case is
l i s t e d i n the Board minutes as " open - needs f u r t h e r review." As of
October 1983, t h i s case was over 19 months old and has not been
reviewed by e i t h e r a medical examiner or a Board member. I f
interviews a r e deemed necessary, a delay i n a c t i o n may hinder
i n v e s t i g a t i o n of the complaint as the concerned p a r t i e s may not be
able t o remember s p e c i f i c d e t a i l s concerning t h e case.
Case 3
I n June 1982, the Board was n o t i f i e d by a n i n s u r a n c e company of a
claim a l l e g i n g , i n j u r y r e s u l t i n g i n a p a t i e n t ' s death. The p a t i e n t
a l l e g e d l y r e c e i v e d a n i n j e c t i o n from an osteopathic physician, and
subsequently developed a t o x i c i n f e c t i o n r e s u l t i n g i n h i s death. An
autopsy performed on t h e p a t i e n t confirmed the cause of death was
r e l a t e d t o the i n j e c t i o n . As the case involved a p a t i e n t ' s death, a
complaint f i l e was e s t a b l i s h e d f o r the claim.
C onmen t
The Board obtained medical records on t h e p a t i e n t . According t o a
Board member's review contained i n the complaint f i l e , the doctor may
have used a contaminated v i a l or needle, or the contaminants may have
already been on t h e p a t i e n t ' s skin. In January 1983, s i x months a f t e r
r e c e i p t , the Board heard the complaint and moved t o have the complaint
reviewed by a dermatologist t o determine i f the p a t i e n t should have
been prescribed s t e r o i d s . The f i l e , a s of November 1983, has not had
the dermatologist review. The f i l e i s s t i l l pending and should be on
the January 1984 agenda. As of September 1983, t h e Board had received
11 complaints and 4 malpractice claims against t h i s doctor. A t l e a s t
one p r i o r complaint a l s o involved possible improper s t e r i l i z a t i o n . In
a d d i t i o n , i n 1979 t h i s doctor had h i s I l l i n o i s l i c e n s e suspended f o r
four years f o r maintaining records of p r e s c r i p t i o n s f o r Schedule I1
Controlled Substances i n an unprofessional manner.
Case 4
I n March of 1982, t h e Board received a complaint from a doctor
questioning the weight reduction program a n o t h e r d o c t o r had prescribed
f o r a p a t i e n t . The p a t i e n t allegedly told the doctor t h a t she was on
a weight l o s s program but t h a t she could not l o s e weight beyond 20
pounds. The doctor f e l t the treatment had long since been d i s c r e d i t e d
and t h a t the Board should be aware of t h e treatment the doctor
prescribed f o r the p a t i e n t .
Comment s
Although t h i s complaint o r i g i n a t e d from another medical p r a c t i t i o n e r ,
l i t t l e evidence can be found i n d i c a t i n g t h a t t h i s case was
i n v e s t i g a t e d . The Board d i d n o t n o t i f y the complainant t h a t t h e
complaint was received, nor did they obtain the d o c t o r ' s p a t i e n t
records. There is no evidence t h a t the f i l e had been reviewed or
brought before the Board. The f i l e has been closed, but t h e r e is no
documentation of when it was closed.
Complaint Handling Problems Caused by
Administrative Turnover and Lack of Resources
Administrative turnover and lack of resources have caused problems with
complaint t i m e l i n e s s and i n v e s t i g a t i o n . The Board has experienced unusual
turnover i n the Executive Director p o s i t i o n . I n a d d i t i o n , the Board lacks
resources f o r adequate i n v e s t i g a t i o n and medical review. I n v e s t i g a t i v e
resources a r e needed not only t o aid complaint processing but a l s o t o
improve the monitoring of probationers.
Administrative Turnover - Turnover of the Board's executive d i r e c t o r s has
contributed t o the complaint backlog. The Secretary- Treasurer of the
Board a t the time of our l a s t report r e t i r e d i n September 1982. The
position was held by another osteopathic physician between October 1982
and April 1983. According to the Board's s t a f f , t h i s administrator worked
on a part- time basis and did not devote adequate time t o h i s
administrative duties. From April 15, 1983, t o May 15, 1983, the position
was vacant. On May 15, 1983, the f i r s t lay administrator was appointed t o
serve as Executive Director. As each new administrator must learn the
complaint process, complaints tended t o backlog.
The Board Lacks Investigative Resources - The Board lacks i n v e s t i g a t i v e
resources t o f u l f i l l its s t a t u t o r y requirement t o protect the public. The
Board needs a full- time i n v e s t i g a t o r and an adequate budget t o support
complaint processing.
The Board needs a full- time investigator. The Board currently has a
part- time i n v e s t i g a t o r supported by a t o t a l fund of $ 4,000. This equates
t o about 500 hours of i n v e s t i g a t o r time. According t o the Executive
Director i n the 1984- 1985 budget request, the Board is unable t o meet its
s t a t u t o r y requirements t o protect the public health and welfare with only
a part- time i n v e s t i g a t o r .
" Of paramount concern is the a b i l i t y t o i n v e s t i g a t e
complaints received from the public, pharmacy board,
law enforcement agencies and r e l a t e d regulatory
boards. I n t h e p a s t , we have been unable t o follow
through on many leads because we have lacked adequate
investigatory personnel. . . .
" The lack of a full- time i n v e s t i g a t o r is an unnecessary
and possibly dangerous s i t u a t i o n t h a t should not be
tolerated. Further, the Board is placed i n a position
of being unable t o f u l f i l l our s t a t u t o r y requirements.
A full- time Investigator I1 is imperative i f t h i s Board
is t o adequately protect the public health and welfare
as mandated by s t a t u t e . "
Budgetary r e s t r i c t i o n s have a l s o hindered complaint processing.
Complaints were not processed from February through June 1983 due t o lack
of funds. During t h i s period, complainants were sent form l e t t e r s
indicating t h a t complaints would not be processed u n t i l July. I n
addition, the Board's i n v e s t i g a t o r indicated t h a t , due t o budgetary
problems, she does not charge the Board f o r a l l her i n v e s t i g a t i v e and
administrative t i m e . She a l s o s t a t e d t h a t there is a vast amount of
important i n v e s t i g a t i v e work which could be performed by an investigator.
The Executive Director has requested funding f o r a full- time i n v e s t i g a t o r
t o be paid $ 18,300 annually. Funds appear t o be available t o support a
temporary budget increase. Renewal fees were increased t h i s year from $ 50
t o $ 100, and the Board had an estimated carry- forward fund balance of
$ 4 7,787 f o r 1983- 84. However, t o support a full- time investigator, the
Board w i l l need t o use its carry- forward funds, and eventually the Board
w i l l need t o f u r t h e r increase renewal fees. This does not take i n t o
account funds needed f o r a medical consultant, as discussed i n the next
section.
The Board Does Not Employ Medical Consultants - The Board also needs
adequate medical review c a p a b i l i t y . Volunteers have been used recently by
the Board i n an attempt t o meet t h i s need, however, volunteer reviewers
may not be e f f e c t i v e .
The Board does not have funds appropriated f o r a part- time s t a f f medical
consultant. Instead, complaints a r e sent t o osteopathic physicians who
" volunteer"* t o review complaint records and recommend a disposition of
the complaint. The reviews a r e then sent t o a Board member and ultimately
t o the e n t i r e Board.
* " Volunteer" reviewers are paid up to $ 25 an hour f o r reviews. The
t o t a l appropriation f o r outside reviews is $ 2,700.
Reviews received from volunteer physicians appear i n s u f f i c i e n t . The
reviews a r e not i n a standard format and do not always contain
s u f f i c i e n t d e t a i l . For example, one reviewer's report was only f i v e
sentences long. Reviewers r e l y on information and medical records
contained i n the f i l e and do not contact the p a t i e n t o r doctor d i r e c t l y .
I n t h e October 1983 Board meeting, one reviewer commented t h a t he was not
aware he could request more information on a case.
Reviews from a part- time medical reviewer employed by t h e Board may be
more c o n s i s t e n t . In a d d i t i o n d o c t o r s could be interviewed by t h e reviewer
f o r a d d i t i o n a l information. The reviewer could a l s o be a v a i l a b l e f o r
Board meetings and s p e c i a l p r o j e c t s .
BOMEX, by c o n t r a s t , has two part- time medical c o n s u l t a n t s t o review
complaints and is seeking t o f i l l two more part- time p o s i t i o n s . These
c o n s u l t a n t s n o t only review medical records, but they may a l s o interview
doctors o r p a t i e n t s t o obtain f u r t h e r information. The r e p o r t s a r e
prepared by the c o n s u l t a n t s and contain t h e f a c t s of t h e case, a l i s t i n g
of t h e documents reviewed t o generate the f a c t s , a n a n a l y s i s of the f a c t s
and a recommendation f o r Board action. The c o n s u l t a n t s a l s o present the
cases t o the Board a t Board meetings and a r e a v a i l a b l e t o answer questions.
Monitoring of Probationers - I n v e s t i g a t i v e resources a r e a l s o needed t o
improve the monitoring of probationers. Because it lacks i n v e s t i g a t i v e
resources, the Board cannot adequately monitor doctors on probation.*
* The Board c u r r e n t l y has f i v e doctors on probation; four f o r
overprescribing Scheduled drugs and one f o r mail fraud.
The Board does not r o u t i n e l y conduct pharmacy surveys* on i t s probationers
f o r overprescribing drugs. Such surveys a r e necessary t o ensure t h a t the
doctor is not prescribing drugs from which he has been r e s t r i c t e d and t o
determine i f the doctor may be overprescribing drugs from which he was not
r e s t r i c t e d . For i n s t a n c e , a doctor whose Schedule I1 DEA permit has been
removed may begin t o overprescribe Schedule I11 or I V drugs. BOMEX
pharmacy surveys have i d e n t i f i e d doctors who had w r i t t e n p r e s c r i p t i o n s f o r
Schedule drugs i n which the doctors' DEA permits had been surrendered, as
presented i n the following example.
Case Exam~ le
I n September 1980, BOMEX placed a doctor on probation f o r
overprescribing Schedule I1 and I11 drugs and o t h e r v i o l a t i o n s . The
doctor was requested t o surrender h i s Schedule I1 and I11 Controlled
Substances R e g i s t r a t i o n C e r t i f i c a t e t o DEA, which he did i n October
1980. I n June 1981, a BOMEX pharmacy survey i d e n t i f i e d three
p r e s c r i p t i o n s f o r Preludin Endurets, a Schedule I1 drug, allegedly
w r i t t e n by t h e doctor.
Combination of the O s t e o ~ a t h i c
Board with BOMEX
As an a l t e r n a t i v e t o providing the Board with resources, the Board could
be combined with BOMEX. Combination of the Boards would ( 1) provide the
the type of resources needed by the Board and ( 2) e l i m i n a t e p o s s i b l e
d u p l i c a t i o n i n pharmacy surveys and data processing systems. The Boards
have similar scopes of p r a c t i c e , and most s t a t e s have combined Boards.
* Pharmacy surveys a r e a u d i t s of physician p r e s c r i p t i o n s on f i l e i n
pharmacies.
I n our i n i t i a l a u d i t , we recommended t h a t t h e Board of Osteopathic
Examiners be combined with BOMEX. BOMEX has the types of resources needed
by the Osteopathic Board, including i n v e s t i g a t o r s , medical c o n s u l t a n t s and
access t o hearing o f f i c e r s . BOMEX h a s f o u r full- time i n v e s t i g a t o r s and
one i n v e s t i g a t i o n supervisor. These i n v e s t i g a t o r s perform pharmacy
surveys, d e l i v e r subpoenas and conduct i n v e s t i g a t i o n a l interviews. The
i n v e s t i g a t o r s are a l s o used t o monitor doctors on probation. I n addition,
BOMEX is authorized four part- time medical consultants. According t o the
Director of BOMEX, a d d i t i o n a l s t a f f would be needed t o process the
osteopathic Board's work load. Staff of the J o i n t L e g i s l a t i v e Budget
Committee are c u r r e n t l y reviewing the cost of combining the two boards.
Combining Boards would e l i m i n a t e p o s s i b l e d u p l i c a t i o n i n pharmacy surveys
and computer systems. BOMEX i n v e s t i g a t o r s conducted 541 pharmacy surveys
i n 1982- 1983 t o guard a g a i n s t possible overprescribing or other
p r e s c r i p t i o n - r e l a t e d problems. These pharmacy surveys could be performed
simultaneously f o r both osteopathic and a l l o p a t h i c doctors a s p r e s c r i p t i o n
records f o r a l l types of medical p r a c t i t i o n e r s a r e intermixed. BOMEX
i n v e s t i g a t o r s a r e experienced i n conducting surveys and, i n f a c t , trained
the Board's i n v e s t i g a t o r . Combination could a l s o avoid d u p l i c a t i o n of
data processing systems. The Board requested, i n its 1984- 1985 Budget
Request, a $ 4,000 a p p r o p r i a t i o n f o r a new information r e t r i e v a l and t e x t
e d i t i n g system. BOMEX c u r r e n t l y has a computer system which could e a s i l y
accommodate the Osteopathic Boards needs.
The Osteopathic Board and BOMEX have s i m i l a r scopes of p r a c t i c e . As noted
i n our previous report 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
Doctor of Medicine ( MD) degree. The scopes of medical p r a c t i c e of DOs and
MDs, however, a r e the same and include the uses of drugs, r a d i a t i o n and
surgery i n the treatment of disease.
Most s t a t e s have combined Boards. A t the time of our previous a u d i t , 30
s t a t e s and the D i s t r i c t of Columbia licensed and r e g u l a t e d o s t e o p a t h i c
physicians and medical doctors through a s i n g l e composite board. Only 16
s t a t e s , including Arizona, maintained separate osteopathic and medical
boards. In four states osteopathic physicians were licensed by an
osteopathic board - and 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 .
CONCLUSION
The Board of Osteopathic Examiners has improved its complaint handling
procedures since our f i r s t a u d i t , however, the complaint handling process
continues t o be inadequate. Complaints a r e backlogged and a r e not being
resolved i n a timely manner. I n a d d i t i o n , complaints a r e not thoroughly
i n v e s t i g a t e d and reviewed. These d e f i c i e n c i e s are p a r t i a l l y a t t r i b u t a b l e
t o a d m i n i s t r a t i v e turnover and a lack of resources. As an a l t e r n a t i v e t o
providing the Board with resources, it could be combined with BOMEX.
RECOMMENDATION
The Board of Osteopathic Examiners should be provided with i n v e s t i g a t i v e
resources through e i t h e r a ) combination of the Board with the Board of
Medical Examiners or b) an a p p r o p r i a t i o n f o r a full- time i n v e s t i g a t o r and
increased funds f o r medical reviews.
OTHER PERTINENT INFORMATION
During our audit, other pertinent information was reviewed regarding
l e t t e r s of concern.
Because the Board lacks s p e c i f i c authority t o issue l e t t e r s of concern,
the Executive Director plans t o request l e g i s l a t i o n t h i s year t o obtain
such authority.
The Board issues a l e t t e r of concern i f it lacks s u f f i c i e n t evidence t o
c o n s t i t u t e unprofessional conduct but is concerned with the doctor's
actions. These l e t t e r s allow the Board t o develop and document a " track
record" on a doctor for possible future action. The Board began issuing
l e t t e r s of concern i n July 1983. In the October 1983 Board meeting, the
Board requested five such l e t t e r s be issued.
The Board's current s t a t u t e s do not provide s p e c i f i c authority for l e t t e r s
of concern. A. R. S. $ 32- 1855 allows the Board t o 1) issue a decree of
censure, 2) place a doctor on probation, 3) suspend a license, or
4) revoke a license.
D PRESIDENT:
DANA S. DEVINE, D. O.
6501 NORTH 19TH AVENUE
PHOENIX, ARIZONA 85015
MEMBERS
JACK I. VARON, D. O.
1638 NORTH COUNTRY CLUB ROAD
TUCSON, ARIZONA 85716
VICE PRESIDENT:
L. GEORGE HERSHEY, D. O.
2314 NORTH FOURTH STREET
FLAGSTAFF. ARIZONA 86001
) EXECUTIVE DIRECTOR.
MARY L. TUCKER
5060 NORTH 19TH AVENUE
PHOENIX. ARIZONA 85015
MICHAEL MIGNELLA, J. D
111 W. MONROE, # Y14
PHOENIX. ARIZONA 85003
BEN TERRY, D. O.
438 W VALENCIA ROAD
TUCSON. ARIZONA 85706
ARIZONA BOARD OF
OSTEOPATHIC EXAMINERS
IN MEDICINE AND SURGERY
5060 NORTH 19TH AVENUE, SUITE 109
PHOENIX, ARIZONA 85015
( 602) 255- 1 747
December 20, 1983
The Board o f O s t e o p a t h i c Examiners ( OBEX) a p p r e c i a t e s t h e
r e c o g n i t i o n by t h e A u d i t o r Genera1 o f t h e many improvements
made by t h e Board s i n c e t h e i r 1981 a u d i t and a l s o t h e recommenda-t
i o n t o p r o v i d e us w i t h t h e needed r e s o u r c e s t o make f u r t h e r
improvements. The Board i s unanimously opposed, however, t o
t h e recommendation t o merge w i t h BOMEX h a v i n g d i s c u s s e d t h i s
o p t i o n w i t h t h a t agency f o l l o w i n g t h e recommendation i n t h e
1981 a u d i t t o merge. It would appear t h e A u d i t o r General has
skewed t h e r e p o r t t o make a merger w i t h BOMEX appear t o be c o s t
e f f e c t i v e w i t h o u t h a v i n g made a c o m p r e h e n s i v e s t u d y t o d e t e r m i n e
i f t h a t i s t r u e . M e n t i o n of t h e a d d i t i o n a l r e s o u r c e s needed
by BOMEX t o accommodate OBEX i s g l o s s e d o v e r w i t h t h e s l i g h t e s t
o f comment. I n f a c t , BOMEX would have t o h i r e an a d d i t i o n a l
f u l l t i m e i n v e s t i g a t o r and a d d i t i o n a l o t h e r s t a f f as w e l l as
seek l a r g e r o f f i c e space n o t t o m e n t i o n t h e i n c r e a s e d number
o f f o r m a l h e a r i n g s and days o f Board m e e t i n g s would r u n 5 o r 6
days l o n g making them e x t r e m e l y u n w i e l d y and d i f f i c u l t t o
a d m i n i s t e r .
T r y i n g t o compare t h e s i t u a t i o n i n A r i z o n a w i t h o t h e r s t a t e s by
t h e A u d i t o r G e n e r a l ' s comment t h a t " most s t a t e s have combined
b o a r d s " i s m i s l e a d i n g . The r a t i o of Osteopaths t o A l l o p a t h s i n
PLEASE DIRECT ALL COMMUNICATIONS TO THE EXECUTIVE DIRECTOR
Page 2
Arizona i s 10 to 1 which i s c o n s i d e r a b l y lower than 43 of t h e
s t a t e s t h a t range from 13 t o 1 a l l t h e way u p t o 528 to 1. In
a d d i t i o n , over 70% of those s t a t e s have boards t h a t l i c e n s e and
r e g u l a t e 4 or more p r o f e s s i o n s and cannot be compared t o t h e
recommendation being made by t h e Auditor i n t h i s r e p o r t . The
( I
f a c t i s , t h e r e i s l i t t l e a v a i l a b l e t o look t o in a comparison of
t h e recommendation being promoted by t h e A u d i t o r G e n e r a l . The
Auditor a l s o f a i l e d t o conduct a s u r v e y o f d i s c i p l i n a r y a c t i o n s
t o compare our Board a g a i n s t . Our f i n d i n g s i n d i c a t e we compare
most f a v o r a b l y with o t h e r s t a t e r e g u l a t o r y boards,
As a f i n a l comment in regard t o the recommendation to merge with
B O M E X , we would p o i n t out t h a t no one has stepped forward t o
encourage the recommendation t o merge s i n c e t h e 1981 a u d i t --
not B O M E X , not t h e p u b l i c , not t h e l e g i s l a t u r e and, most
e m p h a t i c a l l y , not t h e Osteopathic p r o f e s s i o n .
One of the major complaints of t h e a u d i t o r ' s r e p o r t d e a l s with
t h e backlog of c o m p l a i n t s . I t i s u n f o r t u n a t e the A u d i t o r ' s
r e p o r t came a t a time when we were in the middle of a major
overhaul in o u r c o m p l a i n t review process r a t h e r t h a n i n s i x
months when t h e process would have been completed. I t t a k e s
time to make changes and t h e Board has had t h e a d d i t i o n a l
burdens of a t u r n o v e r i n a d m i n i s t r a t o r s and r e f u s a l by the s t a t e
to a p p r o p r i a t e a d d i t i o n a l funds f o r i n v e s t i g a t i o n purposes
l e a v i n g us i n t h e p r e c a r i o u s p o s i t i o n of being unable t o i n v e s t i -
g a t e complaints o r process them f o r a period of s e v e r a l months.
A backlog was i n e v i t a b l e . The Board i s c o n f i d e n t t h e backlog
w i l l be e l i m i n a t e d i n the next 6 months now t h a t circumstances
beyond our c o n t r o l no longer e x i s t . While f r u s t r a t i n g to t h e
Board, complainants and t h e p h y s i c i a n s complained a g a i n s t , l i t t l e
( I
Page 3
harm i s done by delays i n d e c i s i o n s . Those few complaints which
were p r e s s i n g have r e c e i v e d p r i o r i t y and handled with speed and
not put a t t h e end of t h e l i n e .
In t h e f o u r c a s e s s e l e c t e d f o r review i n t h e r e p o r t , t h e Board
b e l i e v e s they a r e not r e p r e s e n t a t i v e of t h e t o t a l . The Board
would p o i n t out some g l a r i n g problems w i t h l a y persons who were
a b s e n t during t h e h e a r i n g s and i n t e r v i e w s and without t h e
Board's background t h a t i s b e s t i l l u s t r a t e d by quoting a r e c e n t
c o u r t of a p p e a l s opinion upholding t h e Board's d e c i s i o n to p l a c e
a p h y s i c i a n on p r o b a t i o n paraphrased as f o l l o w s :
Decisions based on the accumulated e x p e r i e n c e
and e x p e r t i s e , t e c h n i c a l knowledge and competence
of Board members should n o t r e a d i l y be i n t e r f e r e d
w i t h .
Being a b s e n t when w i t n e s s e s t e s t i f y , not r e c e i ~ i n gl e g a l c o u n s e l ,
not hearing t h e o b j e c t i o n s r a i s e d by t h e physician" a t t o r n e y i n
p r o t e c t i n g the p h y s i c i a n ' s r i g h t s , makes i t impossible f o r t h e
Auditor General t o f a i r l y s i t in judgment of t h e Board's d e c i s i o n s .
The Auditor General a l s o f a i l s to understand t h e compassion of
t h e Board in working with impaired p h y s i c i a n s to r e h a b i l i t a t e
themselves while a t t h e same time p r o t e c t i n g t h e p u b l i c h e a l t h ,
w e l f a r e and s a f e t y . Case # 1 i s a prime example of a happy outcome
i n which t h e Board followed the r e h a b i l i t a t i o n of an impaired
p h y s i c i a n very c l o s e l y over a period of many y e a r s . During t h a t
time, no major complaints emerged a g a i n s t t h i s d o c t o r r e g a r d i n g
h i s medical competency and, t h e r e f o r e , i t i s s a f e t o say t h e
p u b l i c h e a l t h , w e l f a r e and s a f e t y has not been endangered by
t h e Board's a c t i o n s in t h i s c a s e . I f the Auditor Genera1 were
t o review s i m i l a r c a s e s under t h e a u s p i c e s of o t h e r Boards, We
Page 4
b e l i e v e he would f i n d a s l i p or two over a 7 to 10 year period
being t r e a t e d i n t h e same manner as O B E X .
I t i s the conclusion of t h i s Board t h a t the Auditor General
made a c a s e f o r BOMEX and OBEX to merge based on l i t t l e substance
and much c o n j e c t u r e . I t appears t o us to be a case of f i t t i n g
the f a c t s to a preconceived conclusion and leaving out anything
t h a t d i d n ' t f i t .
I t i s t h i s Board's contention t h a t the public h e a l t h , welfare
and s a f e t y i s b e t t e r served by an autonomous Osteopathic Board
of Examiners.
S i n c e r e l y ,
Dana S . Devine, D . O .
President
~ xecu& ve Director