Performance audit, Board of Osteopathic Examiners, in medicine and surgery

              PERFORMANCE AUDIT
Report to the Arizona Legislature
By the Auditor General
April 1991
91- 1
DOUGLAS R. NORTON, CPA
AUDlTOR GZNERAL
STATE OF ARIZONA
OFFICE OF THE
AUDlTOR GENERAL
April 11, 1991
Members of the Arizona Legislature
The Honorable Fife Symington, Governor
Dr. W i l l iam Inboden, President
Board of Osteopathic Examiners
Transmitted herewith is a report of the Auditor General, A Performance
Audit of the Board of Osteopathic Examiners in Medicine and Surgery.
This report is in response to a June 14, 1989, resolution of the Joint
Legislative Oversight Committee.
The report identifies several areas in which the Board can improve i t s
effectiveness and efficiency in protecting the public from incompetent
osteopathic physicians. We found that complaints are not always resolved
in a timely manner; in five serious cases, resolution was delayed for up
to three years due to inaction by Board staff or while awaiting
negotiated settlements by the Attorney General. In addition, the Board
is often reluctant to use i t s statutory authority to enforce professional
standards. We recommend that the Board establish an effective method for
tracking cases so that it is aware of delays. The Board should also
review i t s disciplinary procedures to ensure that it takes appropriate
act ion against physicians who violate standards of professional practice.
A response from the Board is contained on the yellow pages following the
body of this report. The Attorney General's Office was also provided an
opportunity to respond t o t h i s report, but chose not to do so. My staff
and I w i l l be pleased to discuss or c l a r i f y items in the report.
This report w i l l be released to the pub1 ic on Apri l 12, 1991.
Sincerely,
~ ohg@ s R. Norton
Auditor General
DRN : l mn
Enc l osu re
2700 NORTH CI1NTRAL AVENUE ' SUITE 700 PHOENIX, ARIZONA 85004 ' ( 602) 255- 4385 ' FAX ( 602) 255- 1251
The Office of the Auditor General has conducted a performance audit and
Sunset review of the Board of Osteopathic Examiners in Medicine and
Surgery, pursuant to a June 14, 1989, resolution of the Joint Legislative
Oversight Committee. This audit was conducted under the authority vested
in the Auditor General by Arizona Revised Statutes ( A. R. S.) $ 541- 2351
through 41- 2379.
The Board consists o f f i v e members, and is responsible for licensing
osteopathic physicians and surgeons, reviewing complaints, and enforcing
the standards of practice of the osteopathic profession. For fiscal year
1990- 91, the Board was authorized 4.5 Full- Time Equivalent ( FTE)
pos i t i ons and expend i t u res of $ 257,800.
The Board Could Improve
The Manaaement Of Its
Complaints Process ( see pages 5 through 14)
The Board needs to ensure the timely resolution of serious complaint
cases. We found five serious complaints before the Board at the time of
our review have been delayed without final resolution for up to three
years. Three of these cases have been delayed due to inact ion by the
Board's investigative s t a f f . However, two others have been delayed while
awaiting settlement negotiations by the Attorney General. The Board
should establish a case status reporting system to ensure that i t is
aware of such delays.
We also found the Board can reduce the amount of time taken to resolve
less serious complaints. Our analysis of 140 complaints received by the
Board from January 1, 1988 to June 30, 1990, reveals an average
resolution time of 184 days. However, better complaint tracking and
changes in the review process could reduce the time needed to resolve
many of these cases.
Finally, the Board needs to do more to ensure the consistent handling of
all complaints. Presently, the Board lacks well- defined policies on how
to handle th i rd- par ty and anonymous complaints.
The Board Has Not Taken Adequate
Disciplinarv Actions Aclainst
Phvsicians Who Have Violated
State Statutes ( see pages 15 through 22)
Even when the Board investigates complaints, it is often reluctant to use
its statutory authority to enforce professional standards. Letters of
Concern are issued by the Board for cases in which violations occurred
and stronger enforcement action could be taken. In addition, when the
licensees refund patient fees, the Board often dismisses the cases
without taking any action, even in cases involving questions about the
competence of a physician to practice medicine. Finally, the Board has
not made use of its statutory authority to impose fines.
In addition to the general problems with the Board's enforcement actions,
we identified several instances in which the Board failed to take
appropriate disciplinary action in cases involving serious violations.
For example, in one case, a licensee admitted administering large dosages
of drugs to a patient who developed an addiction as well as a
life- threatening condition as a result of numerous injections. Although
st ronger disc i p l i nary act ions such as suspension, probat ion, and f i nes
were available, the Board issued a Decree of Censure to the licensee, one
of the most lenient enforcement actions it could take.
The Board has also been reluctant to enforce stiff penalties against
licensees who have received numerous complaints and committed several
violations over time. For example, we identified five physicians, each
of whom had more than 20 complaints filed against them. Although the
number of documented violations by these physicians would appear to
justify progressively stronger enforcement actions, the Board took no
action or dismissed 110 of the 122 complaints against these physicians
and issued nine Letters of Concern. Only two of the five physicians were
placed on probation, and only one of these two physicians also had his
l i cense suspended.
The Board Has Not Com~ lied
With Statutes Governing
Its Operationg ( see pages 23 through 27)
The Board did not follow State procurement statutes when obtaining
professional services for the monitoring of chemically dependent
physicians, laboratory analyses, and private investigation services. In
addition, the Board made inappropriate and possibly i l l e g a l use of State
monies when i t paid for the travel expenses of an out- of- state candidate
for employment with appropriated funds. Finally, the Board has not
recorded the proceedings of i ts executive sessions as requi red by law.
Other Issues
In compiling information to respond to the twelve Sunset Factors, we
noted that the Board has restricted public access to Board information on
licensees. The Board w i l l not provide any information over the telephone
regarding disciplinary actions, even such basic information as the number
and type of any disciplinary actions. Further, the Board w i l l not inform
the public of any current complaints against a licensee, or of the number
and type of any complaints that have been dismissed. This information is
a matter of pub1 ic record and may be obtained by reviewing minutes of
Board meetings. However, such an approach i s time- consuming, and the
Board's unwillingness to provide such information in a summary form
places an effective l i m i t on access to public records.
TABLE OF CONTENTS
FINDING I: THE BOAFUI CWLD IYPROVE THE
MANAGEEM OF ITS COMPLAINTS PROCESS . . . . . . . . .
Board Needs To Ensure Consistent
Handling Of A l l Complaints . . . . . . . . . . . . . .
Board Could Improve The Timeliness
Of Complaint Resolution. . . . . . . . . . . . . . . .
BOof aSrde rSiohuosu ldC oEmnpsluarien tTs. im e. ly. R. e. so. lu. tio. n . . . . . . . . .
Recommendations. . . . . . . . . . . . . . . . . . . .
FINDING 11: THE BOARD HAS NOT TAKEN ADEQUATE
DISCIPLINARY ACTIONS AGAINST PHYSICIANS IMO
HAVE VIOLATED STATE STATUTES . . . . . . . . . . . . .
The Board Has A Broad Range Of Enforcement Options. . . . . . . . . . . . . . . . . .
General Lack
Of Enforcement . . . . . . . . . . . . . . . . . . . .
Board Has Not Taken Sufficient
Disciplinary Action In Serious Cases . . . . . . . . .
Recommendations. . . . . . . . . . . . . . . . . . . .
FINDING I I I : THE BOND HAS NOT COU) LIED WITH
STATUTES GOVaFllNG ITSOPERATIONS. . . . . . . . . . .
Board Did Not Follow State
Procurement Statutes . . . . . . . . . . . . . . . . .
lnappropr iate Use Of StateMonies. . . . . . . . . . . . . . . . . . . . .
Board Has Not Recorded
Execu t i ve Sess i on Proceed i ngs . . . . . . . . . . . . .
Recomnendations. . . . . . . . . . . . . . . . . . . .
SUNSETFACT O R S . . . . . . . . . . . . . . . . . . . . . .
AGENCY RESPONSE
LIST OF TABLES
TABLE 1 BOARD OF OSTEOPATHIC U( WINERS
IN YDlClNE AH) SURGERY
ACTIVITIES
FISCAL YEARS 1987- 88, 1988- 89, AH) 1989- 90
TABLE 2 BOARD OF OSlHPATHIC EXAMINERS
IN YDlClNE AH) SlRGERY
STATBENT OF REVENUES, U O I T W E S ,
AH) aWlGES IN FU9 BALANCE
FISCAL YEARS 1988- 89, 1989- 90, AH) 1990- 91
BUIETED ( unaud i t ed ) . . . . . . . . . . . .
TABLE 3 RESOWTION TlYELlNESS OF A SWLE OF
CONPLAINTS RECEIVED BY ME BOND
FROY JANUARY 1, 1988 TO JlM 30,1990. . . .
TABLE 4 OVERVIEU OF DISCIPLINARY ACTIONS
TAKUY BY THE BOND
WRING CALEMlAR YEARS 1988, 1989, AH) 1990
TABLE 5 ACTION TAKEN AGAINST REPEAT OFFENDERS
IDENTIFIED IN COMPLAINT FILE SAYPLE. . . . .
INTRODUCTION AND BACKGROUND
The Office of the Auditor General has conducted a performance audit and
Sunset review of the Board of Osteopathic Examiners in Medicine and
Surgery, pursuant to a June 14, 1989, resolution of the Joint Legislative
Oversight Committee. The audit was conducted under the authority vested
in the Auditor General by Arizona Revised Statutes ( A. R. S.) $ 941- 2351
through 41- 2379.
I, + Osteopathic medicine is a branch of medical science. Doctors of
Osteopathy ( DOs), like Doctors of Medicine ( MDs), have a premedical
education, four years of training at medical college, and a one- year
hospital internship. Essentially, the scopes of medical practice of DOs
and MDs are the same. However, DOs have additional training in
identifying and correcting musculoskeletal problems.
Duties
The Board is responsible for examining and licensing osteopathic
physicians and surgeons, renewing licenses biennially, reviewing
complaints, holding hearings, and enforcing the standards of practice of
the osteopathic profession. The various service measurements of the
Board's activities are presented in Table 1, page 2. The Board consists
of five members: four licensed physicians and a representative of the
pub1 ic.
TABLE 1
BOARD OF OSTEOPATHIC EXAMINERS IN MEDICINE AND SURGERY
ACTMTIES
FISCAL YEARS 198748, 1988- 89, AND 1989- 90
Act i v i tv 1987- 88 1988- 89 1989- 90
L i cense Renewa Is 1 ,262 1 ,263 86( a)
New Licenses 112 96 67
Complaints
Investigated
Days Board Met
( a) I n 1989 the Board i n s t i t u t e d a biennial licensing cycle.
Source: Board of Osteopathic Examiners in Medicine and Surgery, Fiscal
Year 1991- 92 Budget Request.
Staffing
For fiscal year 1990- 91, the Board was authorized 4.5 Full- Time
Equivalent ( FTE) positions. The staff includes an executive director, an
investigator, an administrative assistant, a clerk- typist, and a
part- time medical consultant.
Revenues And Ex~ enditur-
Ninety percent of the licensing fees received by the Board are deposited
in a special Board fund to support i t s operations. As shown in Table 2,
page 3, Board expenditures have increased from approximately $ 199,000 in
fiscal year 1988- 89, to an estimated $ 257,800 in fiscal year 1990- 91. A
large percentage of the expenditure increase for fiscal year 1990- 91
includes funding for the implementation of a substance abuse monitoring
and rehabilitative program for chemically dependent physicians.
TABLE 2
BOARD OF OSTEOPATHIC EXAMINERS IN MEDICINE AND SURGERY
STATEMENT OF REVENUES, EXPENDITURES,
AND CHANGES IN FUND BALANCE
FlSCAL YEARS 198889, 1989-#), AND 19904 BUDGETED
( ImalKiited)
1988- 89
( Actual )
FTE Pos i t i ons 4.5
Revenues( a)
I)
$ 336.691
Expenditures
Personal services 126,687
Emp l oyee- re l at ed 28,642
Prof. 81 outside services 1,067
Travel, in- state 3,848
out- of- state 3,891
Equ i pent 2,305
Other operating 32.727
Total Expenditures 199.167
Excess of revenues over
( under ) expend i t u res 137,524
Beg i nn i ng fund ba l ance 358.79Q
End i ng Fund Ba l ance $ 496.314
( a) The Board of Osteopathic Exminers i n Medicine and Surgery has a biennial licensing
cycle.
( b) The fiscal year 1990- 91 beginning fund balance does not agree to the State of Arizona
Appropriations Report because approximate1 y $ 228,000 was inadvertently excluded from
the appropriations report.
e Sources: Arizona Financial Information System reports for fiscal years
1988- 89 and 1989- 90; State of Arizona, Appropriations Report for
the Fiscal Year Ending June 30, 1991; State of Arizona,
Executive Budget for Fiscal Year 1992.
SCOW Of Audit
Our audit contains Findings in the following three areas:
a the Board's need to improve the management of i t s complaints process;
the Board's reluctance to use i t s authority to enforce professional
standards; and
the Board's failure to comply with various statutory provisions
governing i t s operations.
As part of our audit work we present examples of actual cases before the
Board in order to demonstrate i t s effectiveness in regulating osteopathic
physicians. However, specific information that would identify the
individuals involved or investigative findings has been eliminated to
ensure the confidentiality of the information.
Our audit was conducted in accordance with government auditing standards.
The Auditor General and staff express appreciation to the Board members,
the executive director, and the staff of the Board for their cooperation
and assistance during the audit.
FINDING I
T H E B O A R D C O U L D IMPROVE THE MANAGEMENT
OF ITS COMPLAINTS PROCESS
The Board of Osteopathic Examiners in Medicine and Surgery could improve
the management of its complaints process. The Board could improve the
general consistency and timeliness of its complaint resolution. More
importantly, the Board also needs to ensure the timely resolution of
serious complaints, including those awaiting action by the Attorney
General .
Board Needs To Ensure Consistent
Handlina Of All Corn~ laints
Although the Board has made improvements in handling complaints, it needs
to do more to ensure the consistent handling of all complaints. While
the Board has clear statutory authority to investigate any information
that suggests unprofessional conduct by a licensee, it has not
consistently pursued third- party complaints. Additionally, anonymous
complaints have not been adequately addressed. The Board's lack of
we1 I- def ined policies for handl ing complaints may contribute to
inconsistent enforcement.
C l e a r- The Board has clear statutory authority
to investigate allegations of misconduct. Arizona Revised Statutes
( A. R. S.) 632- 1855. A states:
" 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 ... and any other person may,
report to the board any information such physician or surgeon,
association, health care institution or other person may have which
appears to show that an osteopathic physician and surgeon is or may
be guilty of unprofessional conduct ...."
Based on this statute and A. R. S. 532- 1854 that defines unprofessional
conduct, in early 1990 the Board's Attorney General representative
advised the Board in writing:
"... ( l) t is apparent that anvone may advise the Osteopathic Board of
information concerning possible unprofessional conduct of its
licensees ... Once information is received by the Board, its agents may
properly organize and present that information to the Board for its
consideration and for such action as the Board may deem appropriate."
Thi rd- partv complaintg - Despite authority to pursue al I complaints
regardless of the source, the Board has not consistently investigated
complaints received from third parties ( someone other than the patient).
This includes complaints from other doctors. For example, we identified
a letter to the Board from a medical doctor questioning an osteopathic
physician's use of an " experimental therapy1' for the treatment of a young
girl with AIDS. The doctor who made this complaint felt the osteopath's
actions substantially increased the patient's risk of infection --
something particularly dangerous to AIDS patients. In response to the
complaint, the Board's executive director informed the MD that the Board
was unable to investigate the matter without a written complaint from the
patient or her guardian. The Board's executive director later told us
such complaints from physicians may not be pursued as they may be made in
an effort to discredit competing physicians.
Since the Board does not record all the complaints it receives but only
those that are investigated, it is impossible to document the number of
third- party complaints submitted to the Board.
Anon- mus conmlaintg - In addition to complaints initiated by third
parties, the Board has also failed to consistently pursue the complaints
it receives anonymously. We identified a serious case that was initially
presented to the Board anonymously, but not acted upon until later when a
signed complaint was submitted.
In 1985, the Board received and later dismissed a complaint alleging
the unprofessional conduct of a licensee as a result of his
relationship with a patient. Later the Board received several
anonymous calls that identified the doctor and the patient in the
1985 case. The caller( s) reported that the doctor was dispensing and
administering large quantities of drugs to the patient who, in
addition to being an addict, had developed large, open sores on her
body from the injections. Because the caller refused to file a
formal complaint, the Board did not initiate an investigation. It
was not unt i
patient subm
investigation
substantiated
I December 1988, when a relative and friends of the
itted a signed complaint to the Board, that an
was begun. The results of this investigation
all of the allegations made by the anonymous caller.
Lack of clear policies my contribute to inconsistent handling - The
Board's lack of clear policies regarding third- party and anonymous
complaints may contribute to the inconsistent handling of these
complaints. For example, while all of the Board members informed us that
the Board should investigate thi rd- party complaints, the executive
director stated that only those complaints submitted by the patient or
the patient's guardian are investigated. Furthermore, although three
Board members stated that the Board should pursue all anonymous
complaints, the remaining two members and Board staff stated that the
Board does not investigate anonymous complaints. The Board needs to
clarify its policies regarding complaint handling and inform staff of
their position.
Board Could lm~ rove The Timeliness
gf Com~ laint Resolution
The Board could reduce the amount of time taken to resolve complaints.
Better tracking of complaints as well as changes in the complaint review
process could improve the timeliness of complaint resolution.
Time to resolve complaint8 - Of the 140 cases we sampled('), on average
it took the Board 184 days from the day they received a complaint until
the physician against whom the complaint was fi led was notified of the
Board's decision ( see Table 3, page 8). The amount of time varied widely
with the fastest turnaround being 13 days and the slowest 617.
( 1) We reviewed 140 of the 293 complaints received by the Board between January 1, 1988
and June 30. 1990. We used the same sample of 140 complaints for a l l major analyses
i n this report. However, because information was missing i n the complaint f i l e s , the
actual sample size for a particular analysis on a specific variable may be smaller.
TABLE 3
RESOLUTION TIMELINESS OF A SAMPLE OF
COMPLAINTS RECEIVED BY THE BOARD
FROM JANUARY 1, 1988 TO JUNE 30, 1990
Amount of Time To
Resolve Complaint
3 months or less
3 to 4 months
4 to 5 months
5 to 6 months
6 to 9 months
9 months to 1 year
more than 1 year
Wuorber of Percentage of
Qnnplaintg Complaints
TOTAL 126( a) 100
( a) Of the 140 cases we sampled. 13 cases were open and one was missing information on
dates. Therefore, only 126 cases were considered resolved.
Source: Auditor General staff analysis of a sample of consumer complaints
received by the Board from January 1, 1988 to June 30, 1990.
Better com~ laint tracking - The Board could improve the timeliness of i t s
complaint resolutions by improving the tracking of complaints during the
review process. In our analysis of Board complaints, we found two stages
of the review process that slow the resolution of complaints -- delays in
receiving responses to complaints from licensees and the amount of time
to complete medical reviews of cases. Both areas could be improved by a
better system of complaint tracking.
One factor that slows the complaint review process i s the Board's failure
to adequately follow up on i t s requests for doctors to respond to
comp4aints. When the Board n o t i f i e s a physician that a complaint has
been f i l e d against him or her, they ask the physician to respond in
writing within 15 calendar days. However, in our review of complaint
cases, we found 16 cases in which the I i censee did not respond w i th i n 30
days, and 5 cases in which the licensee did not respond for more than 90
days. In one instance, the licensee did not respond u n t i l 260 days after
the Board's i n i t i a l request. Although Board staff sent fol low- up letters
in most of these cases, letters often were not sent for two to three
months.
8
Although the Board maintains a f i l i n g system designed to track cases
during this i n i t i a l stage of the review process, this system appears to
have had l i t t l e effect on ensuring timely responses from licensees.
In addition to the untimely response from physicians, the medical review
of complaints is also delaying the complaint resolution process. Our
analysis indicates that the medical consultant is taking an average of 55
days to complete the reviews('), or approximately one- third of the time
taken by the Board to process a complaint. Although the medical
consultant attributes these delays to several factors( 2), we found more
than one- half of these cases did not involve quality of care issues and,
therefore, required minimal medical review. Perhaps of greater
significance is the fact that once the cases are presented to the
consultant for review, they are removed from the Board's case- tracking
system, making any monitoring of their progress more d i f f i c u l t .
Chanaes in complaint review process could improve timeliness - Informal
interviews and Board reviews could be conducted in a more expedient
manner. Currently, even when both the medical consultant and the Board
member assigned to review a case recommend an informal interview or a
review by the entire Board, the Board waits u n t i l i t s next quarterly
meeting to vote on these recommendations. This process inherently delays
act ion by the Board for three months unt i l the next quarterly meeting.
However, according to the Board's executive director, i t would be
possible to hold a conference c a l l p r i o r t o a Board meeting to vote on
whether to conduct informal interviews at the next regular Board
meeting. In addition, when reviewers recommend the review of a case by
the ent i re Board, i t would be possible to mai l packets of informat ion to
al l Board members so that the case could be addressed at the next
meeting. These changes in the review process could improve the Board's
timeliness by at least 90 days.
( 1) This represents the average number of days from the date the Board receives the
physician's response to the complaint until the date the medical consultant submits
his reconmendati ons.
( 2) These factors include a) information being put into the case tracking system and not
being passed on to the medical consultant for review; b) the complexity of some cases;
C) the need for additional research, including contacting the physician for more
documentation; and d) the use of outside consultants.
Board Should Ensure Timely
Resolution Of Serious Corn~ laint~
The Board needs to ensure the prompt resolution of i t s serious complaint
cases. In our sample of Board complaints, we found five serious
complaints delayed without final resolution for up to three years. Three
of these cases have been de l ayed due to i nact i on by Board i nves t i gat i ve
s t a f f . However, the other two cases have been delayed while awaiting
settlement negotiations by the Attorney General's Office. Providing
periodic status reports to the Board would ensure that the Board i s aware
of major delays in resolving complaints.
Delavs due to inaction bv Board s t a f f - We identified three serious
complaints that have not been presented to the Board for i t s review
because of delays by Board staff during the investigation of the case.
As illustrated in the following case summaries, although coordination
with a Federal law enforcement agency may have contributed to a portion
of the delays in two cases, the delays are primarily attributable to
incomplete and poorly administered investigations by Board s t a f f .
Case 1 - In January, September and October of 1988, the Board
received three complaints, one from an osteopathic physician and the
other two from former employees, respectively, regarding the
a c t i v i t i e s of a licensee. These alleged a c t i v i t i e s included
insurance fraud , the use of un l i censed and unqua l i f i ed personnel to
administer anesthesia, improper supervision of surgical residents,
the adulteration of medications, and the alteration of medication
expiration dates. In addition, the complainants reported extremely
bizarre, unethical, and unprofessional conduct on the part of the
licensee that involved perverse a c t i v i t i e s with anesthetized
patients. These a c t i v i t i e s were often photographed by the licensee
or h i s s t a f f , and the photos were maintained in an album that the
l i censee used to " shock" his emp loyees .
In December 1988 the Board's investigator began an investigation of
these allegations. However, in January 1989, the investigator was
removed from the case due to complaints of unprofessional conduct
made by the licensee and an associate. During most of 1989, aside
from a few interviews conducted by the Attorney General's Office,
l i t t l e was done on the case. In November 1989, the Board's executive
director, acting on advice of the Attorney General's Office, hired a
private investigation firm to look into the case. In approximately
June 1990, the private firm was released from the case after
conducting several interviews with the doctor's former employees.
These interviews supported some of the allegations made by the
complainants. However, l i t t l e action has been taken in the
investigation since June.
k# ments - While Board staff have been aware of potentially serious
wrongdoing by this licensee for almost three years, they have done
l i t t l e to resolve the current complaint in a timely manner.
Consequently, other patients of this licensee have been potentially
l e f t at risk. To date, our analysis of the investigation indicates
that, in addition to being untimely, this investigation was clearly
not conducted in an aggressive manner nor well organized or
administered. Specifically, depositions of other physicians
associated with the licensee should have been conducted much earlier,
and patients mentioned by the complainants should have been contacted
and interviewed.
Case 2 - Based on excessive purchases of control led substances, the
Federal Drug Enforcement Administration ( DEA) and the Board began a
joint investigation of a licensee. In September 1988 the DEA served
a search warrant on a c l i n i c operated by the licensee. The ensuing
investigation identified fifteen separate Federal violations
involving the licensee's f a i l u r e t o properly account for more than
200,000 dosage units of controlled substances and the f a i l u r e t o
maintain complete and proper records of the receipt and distribution
of controlled substances. In December 1989 the licensee admitted to
ten of the violations and was assessed a c i v i l penalty of $ 40,000 in
March 1990. In addition, during the investigation, several other
possible violations were identified, including using the DEA permit
numbers of other physicians to order control led substances and
f a i l i n g t o properly secure controlled substances.
m n t a - Although violation of Federal law i s unprofessional
conduct as defined by statute, more than two years have passed since
the onset of the investigation and more than one year since the DEA
c i v i l action, this case has s t i l l not been presented to the Board for
possible disciplinary act ion. In addition, the Board's investigative
f i l e contained l i t t l e or no documentation of investigative work to
either confirm or deny the additional alleged violations. When f i r s t
asked about this case, the Board's investigator stated that since the
DEA has a l ready f i ned the l i censee , he cons i dered the case c losed and
had no plans to send i t to the Board for their review and possible
act ion.
Following our further inquiry into the case, the investigator changed
his story and stated that although the violations committed by the
l i censee were mi nor and the case was weak, he now p l ans to send i t to
the Board for review and action.
Case 3 - In June 1989, the DEA, in a joint investigation with the
Board, served a search warrant on three weight loss c l i n i c s operated
by a licensee. DEA investigators identified a substantial amount of
evidence that the doctor was providing illegal prescriptions to the
patients of his weight loss c l i n i c s . I n January 1990, a DEA
investigator compiled a computation chart showing that the licensee
could not account for more than 1,100,000 dosage units of controlled
substances, and in September 1990, the U. S. Attorney's o f f i c e f i l e d
an action seeking a $ 200,000 judgment against the doctor for failure
to maintain complete and accurate records of controlled substances.
Qnments - Although this case has been under investigation for over
one and one- half years and contains ample evidence of inappropriate
and potentially dangerous actions by the licensee, Board s t a f f have
not presented the case to the Board for possible disciplinary action
against the licensee. According to the Board's executive director,
they have been waiting to see how another weight loss c l i n i c case
develops before proceeding. However, that case remained unresolved
for over one and one- half years after the Board voted to conduct a
hearing on it. In the interim, the Board has received two additional
complaints against the licensee concerning questionable prescription
practices. According to a letter sent by the Board s t a f f one of
these complaints has been incorporated into the ongoing complaint
investigation. We found no information about the manner in which the
Board is addressing the second complaint.
Cases awaitina action by the Attornev General - In our sample, we also
identified two serious cases that the Board had voted to send to a formal
hearing and had referred to the Attorney General for prosecution.
However, as illustrated in the following summaries of the cases, efforts
to settle them without a formal hearing have resulted in delays of more
than one year in each case.
Case 1 - During the review of patient charts kept by a physician, the
Board's medical consultant found instances of gross overprescription
of controlled substances. For example, the licensee had been seeing
one patient every eight to ten days ( sometimes more frequently) for
over six years. On each v i s i t the patient was given narcotics,
analgesics, or t ranqui I izers. Based on this evidence, the Board
voted to send the case to a formal hearing. However, the licensee,
through his attorney, offered to settle the case rather than go
through a formal hearing.
According to the Attorney General representative assigned to the case
at the time, he had reached a verbal agreement with the licensee's
attorney on settlement terms six months later. However, shortly
thereafter he l e f t the Attorney General's Office without finalizing
the settlement. Although a new attorney was assigned to represent
the Board in July 1990, he did not renew settlement negotiations with
the licensee's attorney u n t i l November 1990. One year after the
Board acted to send the case to a formal hearing, a settlement with
the licensee was finalized by the Attorney General's Office.
- nta - Attorney General o f f i c i a l s attribute the delay in this
case to the turnover of the attorney assigned to the Board and the
need for the new attorney to become familiar with the case.
According to the new attorney, he received this case without an
investigative report documenting the Board s t a f f ' s investigation and
he also had to review patient f i l e s . Although these a c t i v i t i e s had
to be worked into the new attorney's ongoing caseload, the necessity
of a four- month review appears questionable. We found that the
physician admitted overprescribing controlled substances during a
June 1990 deposition and had received a prior disciplinary action
from the Board for prescribing controlled substances for his daughter.
Case 2 - In March 1989, DEA seized the records of a weight loss
c l i n i c supervised by a licensee. The c l i n i c had a history of i l l e g a l
distribution of controlled substances. After reviewing 50 patient
charts, the Board's medical consultant found the licensee's practice
at the c l i n i c constituted a danger to the public. Furthermore,
evidence indicated that the licensee had continued to allow
unlicensed personnel to authorize prescription r e f i l l s despite a
Decree of Censure issued to him by the Board in 1988 for the same
offense. During i t s July 1989 meeting the Board voted to send the
case to a formal hearing. However, the licensee, through his
attorney, offered to settle the case rather than go through a formal
hearing. The l icensee was indicted in January 1990 on Federal drug
charges and the ensuing settlement negotiation involved disciplinary
action from the Board as well as Federal charges that included a
large monetary forfeiture. As of January 1991, one and one- half
years after the Board acted to formal ly hear the case, the Attorney
General had not finalized a settlement with the licensee.
( kmentt - The Attorney General attributes the delay in s e t t l i n g this
case to the inaction of the U. S. Attorney in completing the Federal
portion of the settlement. Attorney General o f f i c i a l s told us that
the licensee w i l l not settle the administrative matter with the Board
u n t i l the Federal criminal matter is settled. Internal memoranda
obtained from the Attorney General indicate that the delay by the
U. S. Attorney i s a result of not completing the aperwork necessary
to obtain a forfeiture, currently set at Q75,000. from the
physician. The Attorney General is to receive approximately $ 30,000
of this amount, and a portion of the monies is to be shared with the
Board to pay future investigation expenses. Attorney General
o f f i c i a l s assert that although they are w i l l ing to proceed with the
case to a hearing, upon instruction from Board s t a f f , they have
continued to pursue a settlement, despite the length of time that has
passed.
Board not aware of some delavg - The Board was unaware of the delays in
several of the cases described in this report. The Board was also
unaware of actions being taken on i t s behalf by the Board s t a f f or the
Attorney General's Office. The Board should become more informed about
the status of ongoing cases by requiring i t s staff to periodically report
the status of cases, including information such as the date a complaint
was received, investigation efforts, prosecution or settlement
negotiation a c t i v i t i e s , and the anticipated date of closure. Developing
a reporting system would also help ensure that the Board i s f u l l y aware
of the a c t i v i t i e s on a l l cases for which i t is responsible.
The Board should establish and inform staff of well- defined policies
to ensure that a l l third- party and anonymous complaints are
appropriately addressed.
The Board should strive to resolve complaints in a more timely manner
by
increasing the Board's complaint tracking e f f o r t s t o ensure
timely responses from physicians as well as timely medical
reviews; and
arranging a conference c a l l p r i o r t o each Board meeting to
determine which cases can be resolved by an informal interview
or a review by the entire Board.
The Board should establish procedures for obtaining periodic status
reports for a l l complaints received against physicians licensed by
the Board. The status reports should provide information such as the
date on which the complaint was received, the current status of the
investigation or prosecution, and the expected date for presentation
to the Board or a formal hearing.
FINDING II
THE BOARD HAS NOT TAKEN ADEQUATE DISCIPLINARY ACTIONS
AGAINST PHYSICIANS WHO HAVE VIOLATED STATE STATUTES
Even when the Board investigates complaints, the penalties imposed on
physicians are often lenient. Although the Board has the authority to
impose a wide range of penalties for violations, our review indicates
that i t usually chooses penalties that are relatively mild compared to
the violations. We also found that the Board did not take appropriate
action against physicians whose cases involved serious violations of
osteopathic practice and physicians with long histories of complaints and
violations.
The Board Has A Broad Ranae Of
Enforcement O~ tions
A. R. S. $ 932- 1803. A. 2 and 32- 1855 empower the Board with broad authority
to investigate violat ions of the osteopathic statutes and take
enforcement action against violators. The statutes specifically i d e n t i f y
eight actions that the Board may take individually or in combination.
Dismiss the k l a i n t i f in the opinion of the Board it is without
merit.
lssue a Letter of Concern i f there is insufficient evidence, or the
information is not of sufficient seriousness to merit direct action
against the physician's license. A Letter of Concern is an advisory
l e t t e r t o the physician and is a public document.
Enter into a Stipulated Order i f the information i s true but not of
sufficient seriousness to merit suspension or revocation. A
Stipulated Order i s a temporary restriction of a physician's license.
lssue a Decree of Censure i f the information i s true but not of
sufficient magnitude to merit suspension or revocation of license. A
Decree of Censure is a formal written reprimand by the Board of a
physician for v i o l a t i o n o f the statutes regulating the osteopathic
profession. It constitutes an o f f i c i a l action against a physician's
l i cense .
Fix a Period and Terms of Probation i f rehabi l i tat ion or education of
the physician i s warranted.
Inpose a C i v i l Penaltv not to exceed $ 500 per violation.
mend the License i f the violation is not serious enough to revoke
the license. Suspending a license, temporarily bars the physician
from practicing medicine.
Revoke the License i f the Board feels that the physician should not
be allowed to continue practicing medicine. Once a physician's
license has been revoked, he must wait two years to reapply for
licensure.
As shown below in Table 4, although the Board has broad powers to enforce
the osteopathic statutes, i t frequently takes no action or imposes the
most lenient sanctions. During 1988, 1989, and 1990, the Board took
disciplinary action against physicians' licenses in 11 percent of the
complaints reviewed. Most complaints ( 75 percent) were dismissed.(')
TABLE 4
OVERVIEW OF DISCIPLINARY ACTIONS
TAKEN BY THE BOARD
DURING CALENDAR YEARS 1988, 1989, AND 1990
Type of Action 1988 1989 1990
Dismissed Complaint 107 107 102
Issued Letter of Concern 2 1 15 19
Entered into Stipulated Order 7 8 10
Issued Decree of Censure 4 1 1
Placed Physician on Probation 5 3 1
Suspended Physician's License 2 2 1
Revoked Physician's License - 1 - 1 - 2
Total - 147 137 PL3 - 136
Source: Board of Osteopathic Examiners in Medicine and Surgery, Summary
of Calendar Year Statistics.
General Lack
Of Enforcement
Our review of complaint f i l e s suggests that the Board is generally
unwilling to take strong action in complaint cases. We found the Board
( 1) I n addition to taking lenient enforcement actions, we found the Board restricts public
access to information regarding complaints f i l e d against 1 icensees and disciplinary
actions taken by the Board ( see Sunset Factor 5, pages 30 and 31).
has issued Letters of Concern in several cases in which obvious
violations have occurred. In addition, i t has taken no action and
dismissed cases in which, despite statutory violations or questionable
professional practices, the l icensee has in some way addressed the
complaint to the satisfaction of the complainant. Finally, the Board has
not made use of i t s statutory authority to impose fines.
Overuse of the Letter of Concern - The Board is not using Letters of
Concern as intended by statute. Although Letters of Concern are intended
for use in cases where there is insufficient evidence to support stronger
action or in less serious cases, we found that the Board has issued
Letters of Concern even when obvious violations of statute occurred. Of
the 15 cases in our sample that resulted in Letters of Concern, we found
that 12 were issued for cases in which violations occurred and stronger
enforcement action could have been taken. For example:
A physician falsely advertised himself as a c e r t i f i e d laser surgeon
although he was not c e r t i f i e d in the use of lasers or in surgery.
Despite three prior complaints for false advertising within a
two- year period and clear evidence in this case that the licensee had
violated A. R. S. 532- 1854.16 that prohibits physicians from
advertising in a false, deceptive, or misleading manner, rather than
applying a s t r i c t e r sanction such as a fine or a more serious action,
the Board issued only a Letter of Concern.
Other cases in which the Board issued Letters of Concern included
physicians who violated statutes by not exercising reasonable medical
judgment, violating patient confidentiality, f a i l i n g to provide medical
records when requested, and overcharging patients.
Dismissina cases that should be pursud - In addition to inappropriate
use of the Letter of Concern, the Board has completely dismissed at least
15 cases in which unprofessional practices occurred. According to the
Board, disciplinary action was not warranted in several of these cases
because the doctors were w i l l i n g to negotiate a settlement with the
comp la i nan t . However, d i sm i ss i ng these cases does not appear to be i n
the best interest of the public because i t may not address the doctors'
competence to practice or ensure that their conduct i s appropriate. The
fol lowing example i I lustrates this problem.
A doctor performed surgery on a patient's nose and chin. After the
surgery the patient stated that she was unable to breathe through the
l e f t side of her nose. She also began to experience pain related to
her chin, which had received an implant. The patient was also
dissatisfied with her appearance after the surgery, which resulted in
a crooked nose and a lopsided chin. According to the patient, the
doctor offered to correct these conditions through another surgery or
refund the patient's $ 1,800. The patient took the money and had a
second doctor correct the chin. According to the patient, the second
doctor reported that the chin implant had been placed upside down.
Despite prior complaints against the f i r s t doctor regarding
quality of care, the Board dismissed this case because the doctor
settled with the patient.
Comnent: A1 though the Board had ample reason to quest ion the
physician's competence, i t took no action to help ensure that such
practices would not be repeated.
Reluctance to i m s e fineg - The Board's general lack of enforcement is
also evident by i t s reluctance to impose fines as sanctions for
unprofessional conduct. In 1988, A. R. S. $ 32- 1855. E. 5 was added to
authorize the Board to impose c i v i I penalties of up to $ 500 per
violation. Since that time the Board has assessed only two fines,
despite numerous violations such as false advertising, excessive fees,
substance abuse, imoral conduct, and endangering the health and safety
of patients. We identified 27 additional formal actions taken by the
Board during 1989 and 1990, a l l of which could have included a fine. The
Board also issued 34 Letters of Concern, many of which could have
included a fine.(')
Board Has Not Taken Sufficient
Disci~ linarv Action In Serious Cases
In addition to the general problems with the Board's enforcement actions,
in several cases the Board has not taken appropriate action. We reviewed
a number of cases in which the Board's action does not appear
comensurate with the severity of the violation. We also identified
cases i n wh i ch the Board's act ions do not seem st rong enough g i ven the
physician's history of complaints and disciplinary actions.
( 1) The Board may issue a Letter of Concern with or without an infonnal interview. I f a
Letter of Concern i s issued after an infonnal interview, the Board may also impose a
fine.
Action not comensurate with violation - We identified several cases in
which the Board documented serious violations of professional practice
but failed to take an action that reflected the severity of the
violation. These cases included f a i l u r e t o perform routine procedures,
unnecessary treatment, and improper prescriptions for addictive drugs.
The following example i l l u s t r a t e s the Board's reluctance to take strong
action in a case where a physician clearly endangered a patient.
After receiving a complaint from a female patient's family, the Board
began investigating the patient's doctor. The family alleged that
the doctor had been sexually involved with the patient and had
administered large dosages of drugs to which she had become
addicted. The Board had previously received anonymous complaints
about this situation ( see Finding I, page 6). When approached about
the complaint, the doctor freely admitted the allegations, and the
Board placed him under a stipulated order not to provide further
treatment to the patient. The Board's investigation further revealed
that the patient had a life- threatening condition as a result of
abscesses that developed at the numerous injection sites.
Eventually, the patient was involuntarily committed to the Arizona
State Hospital and received a $ 950,000 settlement from the doctor's
malpractice insurance carrier.
The Board issued a Decree of Censure to the doctor for the following
violations: 1) f a i l i n g to keep records on the patient; 2)
prescribing, dispensing, and administering prescription drugs for
other than therapeutic purposes; and 3) endangering the health of the
patient due to the licensee's i n a b i l i t y to refuse the drugs the
patient desi red. The doctor's pr i v i leges to practice were in no way
restricted beyond a continuation of the order not to treat the
patient, and no monetary penalties were imposed.
m n t s : Although the doctor admitted to a serious breach of
professional practice that resulted in severe consequences to a
patient, the Board took one of the most lenient enforcement actions
available. According to the minutes of the Board meeting, the Board
did not feel that stronger action ( such as additional restrictions on
the doctor's practice, probation, or a fine) was j u s t i f i e d because an
investigation indicated that his treatment of his other patients was
. appropriate. However, we could find no evidence of this
investigation in the Board's records i . . , a review of patient
f i l e s ) that would usually be available to support this conclusion.
Historv of canplaintg - In addition to taking weak action when stronger
action was warranted, the Board has not taken progressively stronger
disciplinary actions against licensees who have received numerous
complaints and cornmi tted many violat ions over time. Despite repeated
complaints being f i l e d against some doctors, and the failure of lesser
sanctions to modify their behavior, the Board has been reluctant to
impose and enforce s t i f f e r penalties.
We reviewed a sample of complaints f i l e d between January 1, 1988 and
June 30, 1990, and found that most of the physicians involved had some
prior complaints; the average was four. To evaluate the Board's response
to problem physicians, we identified five licensees with more than 20
complaints each. ( Table 5).
TABLE 5
ACTION TAKEN AGAINST REPEAT OFFENDERS
IDENTIFIED IN COMPLAINT FILE SAMPLE
Total No
Complaints Board Complaint
Doctor Closed Review( a) Dismissed
E 23
Total - 122
Doctor
Addressed; Letter
No Board o f
Act ion( b) Bncern
St ip-ulated
Pro-
Order bat ion
( a) These complaints, which were older, were not reviewed by the Board. I n some cases
this was because the Board had no jurisdiction. Since then, the Board's j u r i s d i c t i o n
has increased and they now hear a l l complaints.
( b) I n these cases, a f t e r the complaint was brought to the attention o f the Board, the
physician corrected the problem either by refunding the patient's money, forwarding
the records as requested, s e t t l i n g the case by paying damages, or another method of
restitution. The Board then took no action against the doctor.
Source: Auditor General review of complaints received by the Board
between January 1, 1988 and June 30, 1990, and a history of
complaints obtained from Board's database. The complaint
histories shown include complaints received by the Board from
1976 through June 30, 1990, and were obtained from the Board
records for individual physicians.
Wh i l e the number of documented v i o la t i ons accumu la t ed by these phys i c i ans
would appear to just i fy a pattern of progressively stronger act ions
against t h e i r privilege to practice medicine in Arizona, Board sanctions
appear relatively limited. The Board's most comn action in complaints
against these doctors has been to dismiss the complaint. Of the 122
complaints f i led against the five doctors listed in Table 5, 74 were
dismissed with no action and another 26 were dismissed after the doctor
settled with the patient. Although dismissal would normal ly suggest that
the complaint was without merit, our review of the overal l handl ing of
complaints by the Board ( see pages 16 through 18) does not support this
assumption.
Even when the Board found that these physicians engaged in repeated acts
of unprofessional conduct, Board sanctions were usually mild. For
example, in 1987 the Board suspended Doctor A's license and placed him on
probation for drug abuse. However, the Board's determination in other
cases that Doctor A fai led to inform a patient of abnormal thyroid test
results, allowed staff to provide treatment in his absence, conducted
unnecessary testing, overcharged for services, and advertised falsely,
resulted only in Letters of Concern. Similarly, Doctor B was placed on
probation for Medicare fraud in 1981, but subsequent findings that he
failed to conduct appropriate tests on a patient, abandoned another
patient, and engaged in false advertising were addressed with Letters of
Concern. We conclude that the Board's reluctance to enforce professional
standards is equally evident even when physicians have long histories of
unprofessional conduct.
The Board i s also unwilling to take meaningful action against a physician
with a history of the same type of unprofessional conduct. We reviewed
one case in which the Board, despite at least four prior complaints
regarding fees, dismissed the case against a physician who asked a
patient with insurance to sign a contract agreeing to a fee of $ 900, but
promised that i f the insurance company did not pay the $ 900, the fee
would be only $ 190. This is clearly a violation of the statutes that
prohibit physicians from obtaining a fee by fraud, deceit, or
misrepresentation.
The Board, however, dismissed this case based on the doctor's promise to
disclose his true, accurate, and complete charges without any material
omission to insurance companies and patients.
The Board should review i t s disciplinary procedures and establish
clear policies to guide it in determining the appropriate level of
action against physicians who repeatedly violate the standards of
professional practice. These policies should provide well- defined
c r i t e r i a to be used in determining disciplinary actions based on the
severity of the violation, the physician's previous violations, and
any additional factors the Board feels are relevant. The Board
should provide written j u s t i f i c a t i o n and documentation for actions
that deviate from those c r i t e r i a .
As part of this review, the Board should re- evaluate i t s policy of
dismissing complaints when the licensee negotiates a settlement with
the patient, and determine when o f f i c i a l sanctions may s t i l l be
appropriate.
FINDING Ill
THE BOARD HAS NOT COMPLIED WITH STATUTES
The Board has not complied with the various statutory provisions
governing i t s operations. Specifically, the Board did not always comply
with the State procurement statutes when obtaining professional
services. In addition, the Board made inappropriate and possibly i l l e g a l
use of State monies when conducting interviews for a new executive
director. Finally, the Board has failed to record the proceedings of i t s
executive- sessions for at least six years.
Board Did Not Follow Statg
Procurement Statutq
The Board failed to follow State procurement statutes when obtaining
professional services. This includes services for the aftercare
monitoring of chemically dependent physicians, laboratory analysis, and
private investigation services.
Services for mnitorina dependent phvsiciang - The Board did not comply
with State procurement statutes when obtaining more than $ 27,000 of
professional services to monitor chemically dependent physicians. In
July 1990, the Board entered into an agreement with the Arizona Medical
Association ( ArMA) to monitor and provide treatment to osteopathic
physicians who are found to be impai red by alcohol and drug abuse. The
agreement cal Is for the Board to compensate ArMA $ 20 annual ly for each
physician licensed by the Board, or approximately $ 27,000 for the
provision of these services for fiscal year 1990- 91.
While the Board had obtained the necessary statutory authority and
funding to enter into an agreement for these services, i t did not comply
with provisions of the State procurement code requiring the competitive
bidding of contracts for professional services. According to an o f f i c i a l
with the State Procurement Off ice ( SPO), the Board acted i I legal ly when
i t fai led to s o l i c i t bids through a Request for Proposal ( RFP) for a
aftercare monitoring contract. Additionally, i f the Board f e l t that ArMA
was the only vendor available to provide the services, i t should have
sought a sole- source determination from the SPO director. Further, since
the agreement with ArMA exceeded the amount that it i s authorized to
administer on i t s own, the Board should have administered the procurement
through SPO.
The Board's f a i l u r e t o comply with the State procurement code appears to
be due to the former executive director's lack of knowledge or disregard
of the procurement code. According to the former executive director, she
negotiated only with ArMA for aftercare services and did not s o l i c i t bids
because the Board had obtained legislation to contract for the services.
In addition, she stated that there were no other vendors that offered
services similar to those offered by ArMA. However, the legislation
authorizing the Board to obtain aftercare services did not authorize the
Board to bypass the procurement statutes. Furthermore, while the former
executive director f e l t that ArMA was the only suitable vendor, she
f a i l e d t o properly act upon this decision and request a sole- source
determination from SPO.
Regardless of the cause, the Board has taken steps to resolve i t s
inappropriate procurement of ArMA services. Based on our conversations
with the Board's current executive director, he contacted SPO and
requested a sole- source determination for aftercare moni tor ing services
with ArMA. In early December 1990 SPO approved that request.
Laboratory analysis and private investiaation services - The Board also
f a i l e d t o comply with State procurement statutes when obtaining
professional services for laboratory analysis and private investigation
services. Since approximately 1986, the Board has u t i l i z e d only one
private laboratory to analyze specimens obtained from chemically impaired
physicians monitored by the Board. The cost of these services averages
approximately $ 1,500 annually.(') In the case of private investigation
services, in 1989 the Board hired a private investigations firm to probe
the a c t i v i t i e s of a licensee. This investigation by the private firm,
( 1) Although the licensee pays the cost of the analysis, the Board specifies the
laboratory that w i l l conduct the analysis .
which extended over a period of approximately seven months, cost the
Board more than $ 2,600, In both instances, the Board not only fai led to
comply with the requirements of the procurement code and obtain
competitive bids for the provision of these services, but also failed to
obtain a written contract for the services.
According to the former executive director, i t never occurred to her that
the Board needed to follow the procurement statutes when obtaining
laboratory services. In the case of the private investigation firm, the
former executive director contends that she followed the requirements of
the procurement code by obtaining bids from four vendors. However, the
documentation for this was placed on a piece of " scratch papertt that
cannot be located now.
Inappromiate Use Of
State Monies
In addition to noncompliance with State procurement statutes, the Board
has made inappropriate and possibly i l l e g a l use of State monies.
Specifically, the Board violated State statutes when it used appropriated
monies to pay for the travel expenses of an out- of- state candidate for
employment. However, inaccurate advice from a State personnel o f f i c i a l
may have contributed to the violation.
Travel exnenses for out- of- state candidate - The Board's use of State
monies to pay the travel expenses of an out- of- state candidate for
employment, violated State statutes prohibiting such a c t i v i t i e s . In June
1990, the Board's executive director announced her resignation, effective
the end of August 1990. On her recommendation, in late June the Board
interviewed an out- of- state candidate for the executive director's
position. The Board paid travel expenses of approximately $ 550 for this
candidate. By doing so, the Board violated A. R. S. 935- 196.01 that
stipulates:
" After July 1, 1978, no appropriated monies may be expended by any
budget unit for transportation or other travel expenses necessary for
bringing any person into this state who is not a resident of this
state for an interview for prospective employment ... unless such
monies are appropriated for such specific purposes."
A review of the Joint Legislative Budget Committee appropriation reports
indicates the Board had no speci f ic appropriation for this purpose.
The statutes also prescribe specific penalties for violating the
prohibition against the use of State monies for such travel expenses.
Specifically, A. R. S. $ 35- 197 stipulates: " Any o f f i c e r , agent or employee
of the state who knowingly f a i l s or refuses to comply ..." with the
prohibition is g u i l t y of a Class 1 misdemeanor. In addition,
A. R. S. 535- 196 indicates, " Any state officer or employee who i l l e g a l l y
withholds, expends or otherwise converts any state money to an
unauthorized purpose ...," is liable for those monies, plus a 20 percent
pena l ty .
Inaccurate advice nav have contributed to the violation - While the Board
violated the prohibition against the use of State monies for the travel
expenses of an out- of- state candidate for employment, inaccurate advice
provided by a Department of Administration ( DOA), Personnel Division
o f f i c i a l may have contributed to the violation. According to the Board's
former executive director, the Board paid the candidate's travel expenses
based on the advice of a DOA personnel specialist assigned to assist the
Board in i t s search for a new executive director. In fact, the Personnel
Division o f f i c i a l admits that although he was aware of the prohibition
against the use of State monies for this purpose, he advised the former
executive director that the Board could pay for the candidate's travel i f
they had available funds. However, the o f f i c i a l added that he may not
have made i t clear that the statute requires these funds must be
appropriated to the Board for that specific purpose.
Board Has Not Recorded
Executive Session Proceedina- s
The Board has not recorded the proceedings of i t s executive sessions as
required by statute. A. R. S. $ 38- 431.01 requires a l l pub1 i c bodies to
take written minutes or recordings of a l l meetings, including executive
sessions. According to the statute, minutes of executive sessions shall
include the following information:
a the date, time, and place of the meeting;
the members of the public body recorded as either present or absent;
a general description of the matters considered; and
such other matters as may be deemed appropriate by the public body.
Despite this requirement, the Board did not document i t s executive
sessions during the last six years. Therefore, we were unable to review
the minutes of the executive sessions of the Board for that period.
According to the Board's former executive director, during the six- year
period she served in that position, she simply failed to record the
proceedings of the executive sessions, although she was aware of the need
to do so. Beginning with the October 1990 Board meeting, the present
executive director has begun to record and maintain the minutes of these
meetings and has indicated he w i l l continue to do so.
RECOMMENDATIONS
1. The Board should ensure that a l l contracts for goods and services are
administered in compliance with requirements of the State procurement
code.
2. The Board should ensure that i t complies with appropriate statutes
during any future recruiting efforts, particularly those prohibiting
the use of State monies for out- of- state candidate travel expenses.
3. The Board should continue recent efforts to properly record the
proceedings of i t s executive sessions.
SUNSET FACTORS
In accordance with Arizona Revised Statutes ( A. R. S.) 541- 2354, the
Legislature should consider the following 12 factors in determining
whether the Board of Osteopathic Examiners in Medicine and Surgery should
be continued or terminated.
1. The obiective and purpose in establishina the Board
Arizona Revised Statutes Chapter 17, T i t l e 32, Sect ions 1800 through
1871 establish and empower the Board. Historical Note Laws 1982,
Chapter 144, Section 1, states:
" The goals and objectives of the state board of osteopathic
examiners in medicine and surgery are to help assure competent
osteopathic medical care and prevent conduct on the part of
osteopathic physicians which would tend to do harm to the
health, safety and welfare of the public."
In order to carry out this responsibility, A. R. S. 532- 1803. A empowers
the Board to examine candidates for licensure as osteopathic
physicians and surgeons; enforce standards of practice; maintain a
roster of a l l osteopathic physicians and surgeons licensed by the
Board; and maintain records of a l l Board actions.
2. The effectiveness with which the Board has met its obiective and ~ umose and
the efficiencv with which the Board has operated
The Board can improve i t s effectiveness and efficiency in f u l f i l l i n g
i ts statutory responsi bi l i ty to protect the pub1 i c from incompetent
osteopathic physicians. Our review shows that the Board has not
ensured the timely resolution of some serious complaints, has not
taken adequate enforcement actions in many of the complaints i t has
addressed, and has not acted aga i ns t l i censees who have had numerous
complaints and violations ( see Finding I, page 5 and Finding II, page
15).
3. The extent to which the Board has operated within the public interest
The Board has generally operated in the pub1 ic interest through i t s
licensing and complaint resolution responsibilities. However, the
Board's f a i l u r e t o take adequate and timely enforcement actions in
some cases has limited i t s a b i l i t y to properly protect the public
from incompetent and potentially dangerous licensees. In addition,
the Board's fai lure to comply with statutory requirements regarding
procurement, i t s inappropriate use of State monies, and i t s failure
to record the minutes of executive sessions has not been in the
public interest ( see Finding I I I, page 23).
4. The extent to which rules and reaulations promulaated bv the Board are
consistent with the leaislative mandate
Recent legislation has directed the Board to promulgate rules and
regulations in order to enforce statutes addressing the dispensing of
drugs by osteopathic physicians and the qualifications of medical
assistants. Although this legislation became effective in September
1989, the Board has not yet promulgated the necessary rules. To
date, the Board has drafted the rules and begun to advance them
through the review and public hearing processes.
5. The extent to which the Board has encouraaed i n ~ uftr om the public before
promulaatinq its rules and reaulations and the extent to which it has informed
the public as to its actions and their expected impact on the public
The Board has not promulgated rules since 1987. However, recent
efforts to draft rules and regulations addressing the qualifications
of medical assistants and the dispensing of drugs have included a
task force of members of the osteopathic community. Furthermore, the
Board publishes minutes of i t s meetings as well as an annual
newsletter, which are distributed to individuals and organizations
within the osteopathic and medical comnunities.
The Board has restricted public access to Board information about
licensees. Currently, i f a member of the public wants to review
whether the Board has taken any disciplinary actions against a
licensee, he or she must either make an appointment for an in- person
review of the physician's licensing f i l e , or make a request in writing
that the Board provide a brief summary of any disciplinary act ions.
The Board w i l l not provide any informat ion regarding discipl inary
actions over the telephone, including basic information such as the
number and type of any disciplinary actions.
In addition, the Board recently acted to l i m i t the information made
available to the public by removing any dismissed complaints against
a l icensee from the summary record given to those making inquiries.
The Board took this step although this information is public record
contained in the minutes of the Board's meetings. Further, this
incomplete disclosure of information could mislead the public about a
licensee's competence to practice osteopathic medicine. For example,
Doctor D in Table 5 ( see Finding II, page 20) has had 23 complaints
brought against him and is currently under investigation for
unprof ess i ona l conduct ( see Examp l e 1, F i nd i ng I , page 10). However ,
because the Board has never taken a disciplinary action against him,
members of the public reviewing his licensing f i l e would be unaware
of the 23 previous complaints.
6. The extent to which the Board has been able to investiaate and resolve
complaints that are within its jurisdiction
The Board needs to ensure the consistent handling of third- party and
anonymous complaints, and strive to improve overall the timeliness of
i t s complaint resolution process. In addition, the Board needs to
resolve some of i t s most serious complaint cases -- cases that have
been open for as long as three years, including those awaiting
settlement negotiations by the Attorney General ( see Finding I, page
5).
7. The extent to which the Attornev General or anv other applicable aaencv of
State aovernrnent has the authoritv to prosecute actions under the enablinq
legislation
Unlike some other regulatory boards, the Board's enabling legislation
does not specifical ly empower the Attorney General or any other
agency of State government to prosecute actions. However, according
to the Board's Assistant Attorney General representative, based on
the provisions of A. R. S. 541- 192, which delineate the powers and
duties of that Office, the Attorney General is authorized to
represent the Board.
3 1
8. The extent to which the Board has addressed deficiencies In its enabling
statutes which re vent it from fulfill in^ its statutorv mandate
In 1988 the Board supported legislation that resulted in significant
changes in i t s authority to regulate the osteopathic profession.
This legislation included provisions that allow the Board to enter
into stipulated orders; impose c i v i l penalties without conducting a
formal hearing; appoint a hearing officer to conduct formal hearings;
require licensees to report any unprofessional conduct of osteopathic
physicians; and issue biennial licenses.
9. The extent to which chanaes are necessary in the laws of the Board to
gdeauatelv complv with the factors listed in the Sunset Law
Based on our audit work, we do not recomnend any changes to the
Board's statutes.
10. The extent to which the termination of the Board would siunificantlv harm the
public health, safetv or welfare
Termination of the Board would significantly endanger the public.
The unregulated practice of osteopathic medicine could pose a threat
to public health, safety, and economic we1 l being. For example,
several of the complaints we reviewed involved c r i t i c a l health and
safety considerations, such as the overprescription of controlled
substances, inadequate or inappropriate surgical procedures, and
sexual abuse. Other complaints dealt with excessive fees and charges
for services that were not provided.
11. The extent to which the level of reaulation exercised bv the Board is
ag~ ropriatea nd whether less or more strinaent levels of reaulation would be
ap~ ropriatg
Based on our review, the current level of regulation exercised by the
Board appears appropriate. By statute, only one category of
licensure exists, Doctor of Osteopathy. Further, the Board is not
authorized to issue temporary or limited licenses.
12. The extent to which the Board has used ~ r i v a t eco ntractors in the ~ erforrnance
of its duties and how effective use of private contractors could be accomplished
The Board has made extensive use of private contractors for services
i t can not provide in- house. Specifically, the Board has contracted
for the aftercare monitoring and treatment of chemically dependent
physicians, laboratory analysis of bodily f l u i d samples, private
investigation services, and hearing officers to conduct formal
hearings. While the Board has contracted for these services, in most
instances i t has failed to comply with requirements of the State
procurement statutes when obtaining professional services ( see
Finding II I, page 23).
MEMBERS
Wllllarn C. Inboden. 11. D. O.
3974 North Campbell Avenue
Tucson. Arizona 85719
VICE PRESIDENT
Paul M Slslngard. 0.0.
8 4220 North 19th Avenue
Phoenix. Arizona 85015
A p r i l 4, 1991'
ARIZONA BOARD OF
OSTEOPATHIC EXAMINERS
IN MEDICINE AND SURGERY
1830 WEST COLTER, SUITE 104
PHOENIX, ARIZONA 85015
( 602) 255- 1 747
FAX ( 602) 255- 1 756
Madelane Van Arsdell
1830 West Colter Street, 6104
Phoenix. Anzona 85015
Rlchmd Darby. D 0.
1830 West Colter Street. 6104
Phoenix. Arizona 85015
Paul C Geimer. 0.0-
444 West Osborn Rood, 6207
Phoen~ x. A rlzona 85013
EXECUTIVE DIRECTOR
Roberl J. Milier. Ph D
ADMINISTRATIVE ASSISTANT
Phyllis Lundy
INVESTIGATOR
James L. Cluhine
MEDICAL CONSULTANT
R E. Dennis, 0.0
Douglas R. Norton
Auditor General
2700 North Central Avenue, Suite 700
Phoenix, AZ 85004
Dear M r . Norton:
Enclosed please f i n d the Board of Osteopathic Examiner's response t o the d r a f t
p r e l i m i n a r y r e p o r t o f your o f f i c e ' s performance a u d i t o f the Board. It i s our
understanding t h a t t h i s response w i l l be published, as submitted, i n the f i n a l
d r a f t of the r e p o r t .
A t t h i s time the Board wishes t o thank you and your s t a f f f o r providing us w i t h
t h e o p p o r t u n i t y f o r i n p u t i n t o the r e p o r t . Should you have any questions
regarding our response, please feel f r e e t o contact the Board o f f i c e .
Sincerely,
, Bo
William Inboden, 11, D. O. p. @ f a
President
Robert J. ~ ( l l e r , Ph. D.
I, Executive D i r e c t o r
INTRODUCTION
The r e p o r t of the performance a u d i t o f the Board of Osteopathic Examiners i n
Medicine and Surgery, submitted by the o f f i c e of the Auditor General, has been
reviewed by the Board, and our response i s c o n t a i n e d h e r e i n . The r e p o r t has
i d e n t i f i e d several areas o f a d m i n i s t r a t i v e procedure which can be improved upon
and has made recommendations t o t h a t e f f e c t . I n t h i s regard, the Auditors have
f u n c t i o n e d e f f e c t i v e l y and w i t h i n the scope of t h e i r knowledge and e x p e r t i s e .
The r e p o r t has also sought t o evaluate the medical and medico- legal review and
decision- making performance o f the Board, e s p e c i a l l y i n areas o f complaint r e s o -
l u t i o n and physician d i s c i p l i n e . I n these areas, the a u d i t o r s have strayed f a r
from t h e i r f i e l d of t r a i n i n g and knowledge, and have sought t o llsecond- guess"
the medical judgements o f licensed Arizona Physicians. While the Board does not
deny the v a l i d i t y , indeed the d e s i r a b i l i t y , o f p e r i o d i c performance review, it
i s our c o n t e n t i o n t h a t such review should be c a r r i e d out by i n d i v i d u a l s w i t n
t r a i n i n g and experience i n the f i e l d under review. Although the a u d i t o r s have
i d e n t i f i e d c e r t a i n areas o f concern which have m e r i t , the o v e r a l l impact of
t h e i r conclusions must be questioned, due t o the f a i l u r e t o i n c l u d e a genuine
" peer review" i n the a u d i t process. While these concerns have been r a i s e d pre-v
i o u s l y w i t h t h e a u d i t o r g e n e r a l ' s s t a f f , we note w i t h r e g r e t t h a t they have not
been addressed i n the performance a u d i t r e p o r t . We would, t h e r e f o r e , again urge
the a u d i t o r general t o i n c o r p o r a t e a t r u e " peer review" process, by i n d i v i d u a l s
possessing the a p p r o p r i a t e background and t r a i n i n g , i n a l l f u t u r e performance
a u d i t s of p r o f e s s i o n a l r e g u l a t o r y boards. Such a process can o n l y serve t o
enhance the c r e d i b i l i t y o f t h e a u d i t process.
Our response t o the a u d i t r e p o r t w i l l address each of the three f i n d i n g s con-t
a i n e d t h e r e i n , the sunset f a c t o r s which f o l l o w them. I n general, our concerns
w i t h the r e p o r t focus on Findings I and 11. We f e e l t h a t the r e s u l t s and recom-mendations
o f F i n d i n g I11 are, i n the main. accurate. The recommendations made
i n F i n d i n g I11 are appropriate, and e i t h e r have been, or w i l l be, implemented.
FINDING I
THE BOARD COULD IMPROVE THE MANAGEMENT OF ITS COMPLAINT PROCES- S
This f i n d i n g has i d e n t i f i e d c e r t a i n areas which can be r e f i n e d , and improved
upon. S p e c i f i c a l l y , complaints from t h i r d p a r t i e s , and complaints received from
anonymous sources should be accorded the same i n v e s t i g a t i v e e f f o r t as are
complaints received from p a t i e n t s , the most common source of such information.
It i s also the case t h a t the complaint t r a c k i n g system which was i n use d u r i n g
the p e r i o d audited d i d not always lend i t s e l f t o accuracy, and d i d not always
ensure t h a t the s t a t u s o f complaints was monitored t o the degree necessary.
The l a t t e r f i n d i n g , as i d e n t i f i e d , r e q u i r e s some e l a b o r a t i o n , s i n c e a t i m e l y
r e s o l u t i o n o f a complaint i n v o l v e s a number o f interdependent s t e p s . A t i m e l y
response from the physician involved, prompt review by Board s t a f f and Board
members and a c t i o n by the Board on s a i d recommendations are a l l required, and
a l l consume t i m e . While the a u d i t o r s have gone t o great lengths t o p o i n t out
t h a t the Board takes, on average, 184 days t o r e s o l v e a complaint, they f a i l t o
note t h a t f u l l y 66%, o f a l l complaints they reviewed were resolved i n s i x months
o r l e s s . I n other words, t w o - t h i r d s of the complaints reviewed were resolved i n
less t h a t the average time f o r r e s o l u t i o n of a l l complaints reviewed. When the
time frame i s extended t o nine months or less, 87% of a l l reviewed complaints
have been r e s o l v e d . T h i s c l e a r l y demonstrates t h a t the a u d i t o r s allowed a small
p r o p o r t i o n o f complaints, which took i n o r d i n a t e time t o resolve, t o d i s t o r t the
average time f i g u r e f o r complaint r e s o l u t i o n . C l e a r l y t h i s i s a s i t u a t i o n
wherein p r e s e n t a t i o n o f a simple s t a t i s t i c can obscure r e a l i t y , and c r e a t e a
f a l s e impression.
Although the Auditors do not summarize t h e i r s t a t i s t i c s f o r the medical review
process, as they d i d i n Table 3 f o r t h e o v e r a l l complaint process, we have s i m i -
l a r concerns as regards the use o f the f i n d i n g t h a t I { . . . the medical c o n s u l t a n t
i s t a k i n g an average of 55 days t o complete the review. .." While we recognize,
and accept, t h a t t h i s process can be completed i n a more e x p e d i t i o u s manner, we
f e e l t h a t the methodology used i n d e r i v i n g the " average" f i g u r e serves t o
g r o s s l y o v e r s t a t e the actual t i m e i n v o l v e d i n the medical review process.
I n general, w h i l e we t a k e i s s u e w i t h t h e s p e c i f i c s c i t e d regarding the l e n g t h of
time r e q u i r e d t o r e s o l v e complaints d u r i n g the a u d i t period, we are i n agreement
t h a t c e r t a i n processual charges could be made t o enhance the t i m e l y completion
o f t h e process. The Board has already implemented a procedure f o r h o l d i n g con-ference
c a l l s on concurring recommendations f o r Informal I n t e r v i e w , and w i l l
review a s i m i l a r method f o r d e a l i n g ~ i t Fhu l l Board Review recommendations.
Steps are also being taken t o r e f i n e the complaint t r a c k i n g procedure, which
w i l l monitor t h e s t a t u s of complaints from r e c e i p t through Board r e s o l u t i o n . By
i n s t i t u t i n g a b e t t e r t r a c k i n g system, i t i s a n t i c i p a t e d t h a t the " average"
length o f time t o r e s o l u t i o n , skewed as it may be, w i l l be s u b s t a n t i a l l y
reduced. The Board i s also i n the process o f o b t a i n i n g a new computer system
f o r the o f f i c e , which w i l l i n c l u d e a system f o r t r a c k i n g complaints. This w i l l
serve t o augment, but not replace, the procedures c u r r e n t l y being implemented.
Problems w i t h funding, and delays i n a c q u i r i n g t h e necessary programming support
from the DOA Data Center have slowed t h i s p r o j e c t , and i t w i l l now not be
completed u n t i l sometime i n FY 1992.
Board Should Ensure Timely Resolution o f Serious Complaints
Under t h i s sub- heading the a u d i t o r s have i d e n t i f i e d f i v e " s e r i o u s " complaints
which have not been resolved. Three of the cases are c i t e d as instances o f
i n a c t i o n by the Board s t a f f w h i l e t h e delay i n r e s o l u t i o n of the remaining cases
i s a t t r i b u t e d t o problems i n the Attorney General's o f f i c e . We w i l l address
s p e c i f i c remarks t o each of these examples.
I n example 1, the a u d i t o r s alledge t h a t the i n v e s t i g a t i o n was not conducted i n
an aggressive manner, and t h a t physician associates o f the doctor against whom
the complaint was made, as w e l l as p a t i e n t s , o s t e n s i b l y i d e n t i f i e d i n the
complaint, should have been contacted and e i t h e r deposed or interviewed.
I n f a c t , w h i l e c o o r d i n a t i o n o f the i n v e s t i g a t i o n , i n c l u d i n g r e t a i n i n g a p r i v a t e
i n v e s t i g a t i o n s e r v i c e f o r the case, l e f t something t o be desired, a t no time,
save perhaps f o r the p e r i o d June- October 1990, t h e p e r i o d between t e r m i n a t i o n of
the p r i v a t e f i r m ' s s e r v i c e and re- assignment o f the Board's i n v e s t i g a t o r t o the
case by the new Executive D i r e c t o r , was the i n v e s t i g a t i o n allowed t o l a i n g u i s h
unattended. Despite r e v i e w i n g a number o f lengthy i n t e r v i e w s w i t h former
employees and others associated w i t h the physician i n question, and e v a l u a t i o n
o f p a t i e n t r e c o r d s o b t a i n e d f r o m t h e p h y s i c i a n ' s o f f i c e , l i t t l e o f m a t e r i a l
substance has been obtained t o date. Although t h e a l l e g a t i o n s made against the
physician are o f a p r o f o u n d l y s e r i o u s nature, the Board has, as y e t , d e s p i t e i t s
e f f o r t s , been unable t o develop a s o l i d case f o r d i s c i p l i n a r y a c t i o n t o present
t o t h e Board.
Despite t h a t noted above, it i s important t o p o i n t out t h a t t h i s i n v e s t i g a t i o n
i s on- going, and continues t o be a p r i o r i t y f o r the s t a f f . Nonetheless, it i s
our b e l i e f t h a t , f a r from s e r v i n g t o exemplify s t a f f i n a c t i o n , t h i s example ser-ves
t o demonstrate t h e f a c t t h a t not a l l complaint cases are e i t h e r s t r a i g h t
forward, or lead themselves t o neat and ready s o l u t i o n .
I n example 2, the a u d i t o r s address a case i n which the Board cooperated w i t h the
Drug Enforcement A d m i n i s t r a t i o n t o i n v e s t i g a t e and prosecute a p h y s i c i a n f o r
v i o l a t i o n o f f e d e r a l s t a t u t e s p e r t a i n i n g t o record keeping f o r c o n t r o l l e d
substances. The a u d i t o r s present t h i s example as though the Board's s t a f f
f a i l e d t o acknowledge a s e r i o u s problem w i t h a p h y s i c i a n ' s p r a c t i c e . I n f a c t ,
the a u d i t o r s were b r i e f e d on t h i s case s e v e r a l t i m e s d u r i n g the course o f t h e i r
f a c t f i n d i n g , and were informed t h a t the A s s i s t a n t A t t o r n e y General assigned t o
the Board d u r i n g the p e r i o d i n question had agreed w i t h the Board's i n v e s t i g a t o r
t h a t the a l l e g a t i o n s c i t e d were record keeping v i o l a t i o n s , and would n o t c o n s t i -
t u t e a s t r o n g a c t i o n a b l e case if presented t o the Board i n c u r r e n t form.
However, as was a l s o p o i n t e d out t o the i n v e s t i g a t o r s , t h e Board was i n v e s t i -
g a t i n g other p r a c t i c e r e l a t e d issues w i t h the physician, and these, i f combined
w i t h the federal charges, would c o n s t i t u t e a f a r more a c t i o n a b l e case.
Again i n example 2, a l o n g e r t h a n expected p e r i o d o f i n v e s t i g a t i o n cannot be
d i r e c t l y i n f e r r e d t o represent s t a f f i n a c t i o n , or f a i l u r e t o p r o p e r l y recognize
and act upon a s e r i o u s s i t u a t i o n . As t o the a u d i t o r s ' inference t h a t the
Board's i n v e s t i g a t o r ''.... changed h i s s t o r y . . . " , we f i n d the wording, and i m p l i -
c a t i o n s t h e r e o f , t o be o f f e n s i v e and not i n keeping w i t h accepted standards of
p r o f e s s i o n a l ism. The language used would be more a p p r o p r i a t e i n a work of f i c -
t i o n than i n a s t a t e agency document.
Example 3, summarizes another case i n v o l v i n g a cooperative i n v e s t i g a t i o n o f a
weight c o n t r o l c l i n i c between the Board and the Drug Enforcement A d m i n i s t r a t i o n .
The a u d i t o r s comment t h a t although t h i s case i s one and one- half years o l d and
ample evidence e x i s t s o f the p h y s i c i a n ' s misconduct, the case has not been pre-sented
t o the Board f o r d i s c i p l i n a r y a c t i o n . The r e p o r t a c c u r a t e l y s t a t e s t h a t
the delay i n presenting t h i s case t o the Board was p r e d i c t a t e d on the outcome of
a s i m i l a r case pending w i t h the U. S. A t t o r n e y ' s O f f i c e .
However, as a m a t t e r of record, it should be noted t h a t the d e c i s i o n t o delay
p r e s e n t a t i o n of t h i s case t o the Board was made by the Board's l e g a l counsel
from the Attorney General's o f f i c e - - n o t the Board s t a f f . The f a c t t h a t a pre-vious
case, as w e l l as t h i s one, were s t a l l e d by l e g a l p o s t u r i n g by government
and defense attorneys has been i n a c c u r a t e l y r e p o r t e d by the a u d i t o r s as examples
of incomplete or untimely i n v e s t i g a t i o n by t h i s agency. Both DEA i n v e s t i g a t o r s
and Board s t a f f agree t h a t the i n v e s t i g a t i o n of t h i s case has been completed
pending a p p r o p r i a t e l e g a l a c t i o n . Moreover, when it became apparent t h a t t h i s
case had t h e p o t e n t i a l f o r t h e same delays as experienced i n the p r i o r matter,
the Board s t a f f contacted the Attorney General's O f f i c e and i n i t i a t e d the com-mencement
of a p p r o p r i a t e Board l e g a l a c t i o n independent of DEA and the U. S.
A t t o r n e y ' s O f f i c e . This a c t i o n by the Board s t a f f preceded the sunset review by
t h e A u d i t o r General, and was the r e s u l t o f a conscious e f f o r t by t h i s agency t o
prevent a r e p e a t of the delays experienced i n the previous case. It i s also
important t o note t h a t the p h y s i c i a n ' s a c t i o n s , which may have c o n s t i t u t e d an
imminent t h r e a t t o the p u b l i c , ceased upon s e r v i c e o f the search warrants on the
c l i n i c i n question. C u r r e n t l y , there i s no evidence t o suggest t h a t immediate
a c t i o n by the Board against t h i s physician i s r e q u i r e d t o p r o t e c t t h e p u b l i c .
Again, t h i s i n f o r m a t i o n was a v a i l a b l e t o the a u d i t o r s , but was not included i n
t h e i r r e p o r t .
I n a d d i t i o n , a thorough and exhaustive review o f the Board's f i l e o f complaints,
as well as a l l f i l e s on the physician i n question, f a i l e d t o t u r n up the two
a d d i t i o n a l complaints which the a u d i t o r s a l l e d g e have been f i l e d against t h i s
p h y s i c i a n s i n c e the o r i g i n a l case i n question was opened. It would appear t h a t
the a u d i t o r s have confused t h i s case w i t h another, a m a t t e r o f confusion which
i s u n f o r t u n a t e as it erroneously suggests t h a t the Board has not acted w i t h due
d i l i g e n c e t o p r o t e c t t h e p u b l i c h e a l t h and safety.
While it i s t r u e t h a t these t h r e e cases c i t e d by the A u d i t o r G e n e r a l ' s O f f i c e
have been delayed i n p r e s e n t a t i o n t o the Board f o r t h e i r review and a c t i o n , it i s
important t o note t h a t two of the three cases i n v o l v e j o i n t f e d e r a l / s t a t e drug
i n v e s t i g a t i o n s . The complexity of these i n v e s t i g a t i o n s , and p o t e n t i a l con-sequences
t o both the p u b l i c , and the physicians involved, demanded t h a t t h i s
Board's r e p r e s e n t a t i v e s conduct themselves w i t h the utmost professionalism i n
c o l l e c t i n g r e l e v a n t evidence, w h i l e e x e r c i s i n g d i l i g e n c e i n ensuring due process
r i g h t s f o r those accused. Not o n l y have these requirements been s a t i s f i e d
d u r i n g the pendency of these, admittedly, l e n g t h y cases, but more i m p o r t a n t l y , a t
no time has t h e s a f e t y o f the c i t i z e n s o f the s t a t e o f Arizona been compromised
by any i n v e s t i g a t o r ' s a c t i o n s .
We w i l l not comment on t h e a u d i t r e p o r t s f i n d i n g , regarding the Attorney
General's o f f i c e and t h e i r handling o f areas c i t e d as examples 1 and 2 under the
heading " Cases a w a i t i n g a c t i o n by the A u d i t o r General.''
RECOMMENDATIONS
The Board is in agreement with the auditors' recommendations 1 and 2, although
it should be noted that, due to resource availability, it will always be
necessary to prioritize complaints to some degree. With respect to third- party
and anonymous complaints, the Board's current position, that these are not to be
accorded complaint status, should oe reviewed. It is also clear that this
policy is not always followed, as the Board has responded quickly and decisively
to two recent instances of physi ci ans diverting control 1 ed substances and/ or
self- medicating, which were initiated by third- party informants. A general
review of the policy will be undertaken, with the intent of establishing clear
guidelines for evaluation of all such information received.
With respect to recommendation 3, we have some genuine concerns, both opera-tionally
and philosophically. Currently the staff serves in investigative and
recommendation- making capacities, with the Board sitting as arbiter and
decision- maker. To involve the Board in the investigative process would, we
feel, compromise the evaluation process, and move Board members into a manage-ment
role, one not envisioned for them to statute. Once a decision has been
made, the Board should be kept informed as to the status of its implementation,
and a procedure for this will be developed. It would also be useful to provide
quarterly summaries on complaints received and resolved, and actions taken, so
that Board members, and staff, will be better acquainted with, and attuned to,
the work flow of the agency.
FINDING I 1
THE BOARD HAS NOT TAKEN ADEQUATE DISCIPLINARY ACTIONS
AGAINST PHYSICIANS WHO HAVE VIOLATED STATE STATUTES
I n t h e i r i n t r o d u c t o r y statement t o t h i s f i n d i n g , t h e a u d i t o r s a l l e d g e t h a t the
Board "... u s u a l l y chooses p e n a l t i e s t h a t are r e l a t i v e l y m i l d compared t o the
v i o l a t i o n s . " It i s our c o n t e n t i o n t h a t t h i s statement i s unfounded, and
r e f l e c t s a general lack of knowledge o f the Board's r o l e as a professional regu-l
a t o r y body, and the processes by which i t c a r r i e s out i t s various functions.
The a u d i t o r s r o u t i n e l y have judged v i o l a t i o n s t o be of a s e r i o u s nature, even
when the Board has found otherwise. As noted e a r l i e r , it i s our b e l i e f t h a t the
a u d i t o r s d i d not possess the knowledge and t r a i n i n g i n medicine, and the law, t o
a p p r o p r i a t e l y make the judgements t h a t they have made throughout the f i n d i n g .
On page 16, the statement i s made t h a t : " During 1988, 1989, and 1990 the Board
took d i s c i p l i n a r y a c t i o n against physicians l i c e n s e s i n 11 percent o f the
complaints reviewed. This i s , p u r p o r t e d l y , documented i n Table 4, same page.
However, the a u d i t o r s f a i l t o i n c l u d e L e t t e r s of Concern i n t h e i r c a l c u l a t i o n s .
If, as i s a p p r o p r i a t e , t h e s e were included, the percentage of d i s c i p l i n a r y
a c t i o n s taken, t o complaints received, would be 25%.
Although t h e a u d i t o r s do not document t h e i r methodology, we assume t h a t the
omission of L e t t e r s of Concern was a r e s u l t of t h e i r b e l i e f t h a t these do not
c o n s t i t u t e d i s c i p l i n a r y a c t i o n s . This i s c l e a r l y not the case, as the f o l l o w i n g
w i l l a t t e s t :
A. L e t t e r s of Concern are perceived b y p h y s i c i a n s as d i s c i p l i n a r y a c t i o n s ,
s i n c e t h e y are r o u t i n e l y appealed.
B. L e t t e r s of Concern must be r e p o r t e d as Board a c t i o n s t o the Federation
of State Medical Boards ( FSMB) and the National P r a c t i t i o n e r Data Bank
( NPDB) .
C. The Board may impose f i n e s along w i t h L e t t e r s o f Concern i f the l a t t e r
a r e i s s u e d f o l l o w i n g an Informal I n t e r v i e w .
Given these f a c t o r s , e s p e c i a l l y t h e f e d e r a l requirement t o r e p o r t a l l d i s c i p l i -
n a r y a c t i o n s , i n c l u d i n g L e t t e r s o f Concern, t o the National P r a c t i t i o n e r Data
Bank ( N. P. D. B.) we b e l i e v e t h a t the a u d i t o r s d i d not f u l l y understand the Board's
d i s c i p l i n a r y process. Had they done so, we f e e l t h a t they would have, more
accurately, r e f l e c t e d the s t a t i s t i c a l p i c t u r e o f the Board's a c t i v i t i e s d u r i n g
the a u d i t periods.
To f u r t h e r support our c o n t e n t i o n t h a t the Board's a c t i o n s have been misrepre-sented
i n the a u d i t r e p o r t , we would p o i n t out t h a t , i n June 1990, the n a t i o n a l
advocacy o r g a n i z a t i o n P u b l i c C i t i z e n released a r e p o r t on i t s study o f medical
boards across the c o u n t r y . P u b l i s h e d under the t i t l e 6,892 Questionable
Doctors, t h e r e p o r t found wide d i s p a r i t i e s i n the a c t i o n s and effectiveness of
medical boards nationwide. I n i t s review of Arizona data, t h e r e p o r t concluded
t h a t " Arizona has a separate Board of Osteopathic Examiners, which may be the
most a c t i v e board i n the country." This f i n d i n g , which derives from an organi-z
a t i o n which i s not, i n i t s focus, s u p p o r t i v e of medical boards as t h e y a r e
c u r r e n t l y c o n s t i t u t e d and administered, would appear t o run counter t o the p o s i -
t i o n taken by the Auditor i n t h e i r r e p o r t . This i n f o r m a t i o n was provided t o the
a u d i t o r s d u r i n g the course o f t h e i r f a c t f i n d i n g , b u t was not included, or
referenced i n , t h e i r r e p o r t .
General Lack of Enforcement
Under t h i s sub- heading, the a u d i t o r s addressed three purported areas o f d e f i -
cieny, w i t h a general comment t h a t the Board has routine1. y f a i l e d t o take strong
a c t i o n i n complaint cases. While t h i s o p i n i o n i s i n t e r e s t i n g , we f e e l t h a t a
more b e n e f i c i a l approach would have been t o address the appropriateness of the
Board's a c t i o n s , r a t h e r than t o simply review the harshness of sanctions imposed.
While the l a t t e r course i s , undoubtedly, a simpler task, it may o f t e n overlook
the f a c t t h a t the Board i s mandated by s t a t u t e t o both determine when unpro-fessional
conduct has been committed, and if such has occurred, what type and
degree o f sanction i s r e q u i r e d t o p r o t e c t t h e p u b l i c , d e t e r f u t u r e events o f
s a i d conduct, and where appropriate. serve t o educate the physician i n
a p p r o p r i a t e behavior and p r a c t i c e s . The e f f e c t i v e discharge of t h i s m u l t i -
f a c e t t e d mandate cannot be adequately judged by simply assessing one component
of the process.
While we are, somewhat, i n agreement w i t h the f i n d i n g t h a t L e t t e r s o f Concern
have been o v e r u t i l i z e d , we have concern w i t h t h e A u d i t o r ' s statement t h a t said
l e t t e r s have been u t i l i z e d "... even when c l e a r v i o l a t i o n s of s t a t u t e occured."
I n a d d i t i o n , the a u d i t o r s suggestion t h a t "... 12 were issued f o r cases i n which
v i o l a t i o n s occured and stronger enforcement a c t i o n could have been
taken. "( paragraph 1, page 171, demonstrates the a u d i t o r s ' f a i l u r e t o recognize
t h a t L e t t e r s o f Concern may be issued i n the case o f s t a t u t o r y v i o l a t i o n s . It
should be noted t h a t these statements r e f l e c t t h e o p i n i o n of the a u d i t o r s w i t h
respect t o the cases they reviewed. To s t a t e c a t e g o r i c a l l y t h a t s t a t u t e s were
v i o l a t e d , or t h a t enforcement a c t i o n s were i n a p p r o p r i a t e , w i t h o u t b e n e f i t o f
medical o r l e g a l background or t r a i n i n g i s not a p ~ r o p r i a t e . As noted above,
ae would suggest t h a t , if an accurate review of the appropriateness of Board
a c t i o n s on s p e c i f i c cases was desired. said cases should have been reviewed by
physicians and attorneys conversant w i t h both the p r a c t i c e of medicine and the
s t a t u t e s which govern same i n Arizona. The examples c i t e d i n paragraph 2 of
page 17 as m e r i t t i n g more s t r i n g e n t d i s c i p l i n a r y a c t i o n f u r t h e r i l l u s t r a t e t h i s
lack o f basic understanding o f process and p a r t i c u l a r s . Only i n the instance o f
f a i l u r e t o exercise reasonable medical judgement would an a c t i o n more s t r i n g e n t
t h a t a L e t t e r o f Concern, such as a Decree of Censure, be warranted. I n tne
s p e c i f i c case c i t e d t o i l l u s t r a t e t h i s p o i n t , the L e t t e r of Concern was the most
a p p r o p r i a t e a c t i o n which could be taken by the Board, i n l i g h t of the p h y s i c i a n ' s docu-mentation
o f c e r t i f i c a t i o n f o r having attended a t r a i n i n g seminar i n l a s e r •
surgery. Given the f a c t t h a t the a u d i t o r s were present d u r i n g t h e e n t i r e
Informal I n t e r v i e w f o r t h i s case, and t h a t they were aware of a l l the facts i n
t h i s matter, we f i n d t h e i r c i t i n g t h i s as an i n a p p r o p r i a t e use of the L e t t e r of
Concern t o be s u p r i s i n g t o say t h e l e a s t .
I n respect t o the sub- finding of dismissing cases t h a t should be pursued by the
Board, we can concur w i t h t h e a u d i t o r s ' p o s i t i o n . C l e a r l y , once a complaint has
been f i l e d , it should be pursued on i t s m e r i t s , or lack thereof, and any s e t t l e -
ment which may occur between p h y s i c i a n and complainant should not bear on the
Board's f i n d i n g s or a c t i o n s . Adopting such a p o l i c y would serve t o c l a r i f y the
Board's p o s i t i o n i n t h i s regard.
Under the heading " Reluctance t o Impose Fines" t h e a u d i t o r s c l e a r l y i n t i m a t e
t h a t the Board has f a i l e d t o exercise due d i l i g e n c e i n i t s sentencing process.
The i m p o s i t i o n o f a f i n e i s c l e a r l y w i t h i n the Board's d i s c r e t i o n a r y a u t h o r i t y ,
but i s not mandated i n any instance. If i n the o p i n i o n o f the Board, a f i n e i s
necessary, it should be imposed, but should not be considered as standard prac-t
i c e , t o be u t i l i z e d i n a l l instances. To do so would transform the Board from
a r e g u l a t o r y body t o a p o l i c e force and j u d i c i a l system i n one, a s i t u a t i o n
which, we f e e l , would not be i n the long term i n t e r e s t s o f the people o f
Arizona.
The Board Has Not Taken S u f f i c i e n t D i s c i p l i n a r y A c t i o n i n Serious Cases
F i n a l l y , the a u d i t o r s address, a t length, the issue o f the Board's f a i l i n g t o
act against physicians w i t h extensive complaint h i s t o r i e s . While i t would
appear t o be a simple matter of a r i t h m e t i c progression, it has, i n f a c t , been
the Board's p o s i t i o n t h a t each complaint must be reviewed on i t s own m e r i t s .
This p o l i c y has, r e c e n t l y , undergone some r e v i s i o n w i t h a case being brought
againt a physician f o r apparent recurrence of problems associated w i t h par-t
i c u l a r s u r g i c a l procedures. This precedent w i l l be reviewed, and can be
applied i n the f u t u r e i f s i m i l a r s i t u a t i o n s are seen t o be developing.
A t the same time. r a t h e r than i n c o r p o r a t i n g past performance i n t o the complaint
e v a l u a t i o n process, it would more reasonably f i t a t the p o i n t o f d i s c i p l i n a r y
a c t i o n s e l e c t i o n . A progressive i m p o s i t i o n o f d i s c i p l i n a r y measures would seem
t o be appropriate, and such a p o l i c y w i l l be addressed by the Board i n the near
f u t u r e . It should be p o i n t e d out, however, t h a t sheer numbers of complaints
a g a i n s t a p h y s i c i a n , even a number o f complaints of the same type, do not equate
w i t h g u i l t , a f a c t which the a u d i t o r s seem t o overlook. C l e a r l y , repeated
instances o f the same type o f unprofessional conduct should not be condoned, and
a p o l i c y o f p r o g r e s s i v e l y stronger a c t i o n s would be appropriate. To r e i t e r a t e ,
d e s p i t e a tendency t o premature judgement i n such instances, the Board does have
the r e s p o n s i b i l i t y t o p r o t e c t the p h y s i c i a n s ' r i g h t s of due process i n a l l cases
To overlook t h i s f a c t , and assess g u i l t or innocence merely on volume would be
both u n f o r t u n a t e and i n a p p r o p r i a t e .
While the above addresses i t s e l f t o recommendation # 1, page 22, we f i n d no f a u l t
w i t h recommendation # 2. I n general, i t should be noted t h a t the Board i s a
dynamic body, and has undergone s i g n i f i c a n t turn- over d u r i n g the p e r i o d under
e v a l u a t i o n . As such, t h e r e i s c l e a r l y a need f o r b e t t e r understanding of the
nature and types o f a c t i o n s which can be taken w i t h respect t o complaints. It i s
the s t a f f ' s r e s p o n s i b i l i t y t o p r o v i d e d i r e c t i o n i n t h i s area, and the A s s i s t a n t
Attorney General assigned t o the Board should p r o v i d e g r e a t e r i n p u t i n t o the
process of determining a p p r o p r i a t e d i s c i p l i n a r y a c t i o n s .
FINDING I 1 1
THE BOARD HAS NOT COMPLIED WITH STATUTES GOVERNING ITS OPERATIONS
We do not choose t o t a k e i s s u e w i t h t h i s f i n d i n g . Steps have been taken by the
s t a f f t o i n s u r e t h a t a l l s t a t u t e s governing agency o p e r a t i o n s a r e understood,
and are complied w i t h .
SUNSET FACTORS
The a u d i t o r s i response t o the Sunset Factors set f o r t h i n s t a t u t e are g e n e r a l l y
appropriate, and, f o r the most p a r t are concurred w i t h b y t h e Board. While we
might wish t o take issue w i t h c e r t a i n conclusions a r r i v e d at, we w i l l l i m i t our
comments t o t h e f o l l o w i n g :
A. i n f a c t o r # 2, a number o f conclusions derived from t h e a u d i t o r s Finding
# 1 are made, conclusions which we f e e l have been shown t o be unfounded
and erroneous i n our discussion of the same f i n d i n g .
€ 3. i n f a c t o r # 5, reference i s made t o the Board's p o l i c i e s on d i s c l o s u r e
o f i n f o r m a t i o n , which, the a u d i t o r s suggest, may mislead the p u b l i c ,
or, i n our opinion, serve t o a c c u r a t e l y p o r t r a y a p h y s i c i a n ' s c a p a b i l i -
t i e s w h i l e p r o t e c t i n g h i s r i g h t s when complaints have been found t o be
groundless. Nonetheless, the Board i s reviewing i t s p o l i c i e s and pro-cedures
i n t h i s area, w i t h the i n t e n t t o ensure adequate p u b l i c d i s c l o -
sure o f a l l r e l e v a n t p h y s i c i a n i n f o r m a t i o n .
With the exception o f the matters c i t e d above, we do not choose t o address spe-c
i f i c components o f t h e a u d i t o r s ' e l a b o r a t i o n on the sunset f a c t o r s p e r t a i n i n g
t o the agency. Needless t o say, we do concur w i t h t h e i r f i n d i n g t h a t
" Termination o f the Board would s i g n i f i c a n t l y endanger the p u b l i c . "
CONCLUSION
I n reviewing t h e r e p o r t o f the A u d i t o r General's Performance Audit o f the Board
o f Osteopathic Examiners i n Medicine and Surgery, we have i d e n t i f i e d a number o f
areas o f s p e c i f i c concern. While we b e l i e v e t h a t c e r t a i n f i n d i n g s and recommen-d
a t i o n s a r e accurate, it i s our o p i n i o n t h a t the a u d i t o r s d i d not adequately or
a p p r o p r i a t e l y educate themselves on the r o l e and processes o f the Board, espe-c
i a l l y w i t h respect t o the i n v e s t i g a t i o n and r e s o l u t i o n o f complaints and the
s p e c i f i c s of the s t a t u t e s which empower the Board t o r e g u l a t e the p r a c t i c e of
osteopathic medicine i n Arizona. Had they done so, we f e e l t h a t the manner as
well as s p e c i f i c s , o f f i n d i n g I would have changed m a t e r i a l l y .
The same could be s a i d w i t h regard t o F i n d i n g 11, e s p e c i a l l y as it i s our b e l i e f
t h a t the a u d i t should have addressed on the appropriateness of the Board's
a c t i o n s v i s - a - v i s the complaints received, r a t h e r than s i m p l y f o c u s s i n g on the
perceived need f o r s e v e r i t y i n meting out d i s c i p l i n a r y actions. Furthermore, a
major methodological short- coming, namely the f a i l u r e t o i n c l u d e a t r u e " peer
reviewii o f Board a c t i o n s would appear t o undermine many o f the conclusions
reached i n F i n d i n g 11.
We also note, w i t h i n t e r e s t , t h a t the a u d i t o r s d i d not address the Board's s t a -
t u t o r y f u n c t i o n o f l i c e n s i n g physicians. We can o n l y assume t h a t t h i s i s due
t o t h e i r f i n d i n g t h a t the Board and i t s s t a f f are performing adequately and
a p p r o p r i a t e l y i n t h i s f u n c t i o n .
A t the same time, there i s useful i n f o r m a t i o n contained i n the r e p o r t , and cer-t
a i n recommendations d e a l i n g w i t h areas o f a d m i n i s t r a t i o n and operations w i l l be
reviewed and i n c o r p o r a t e d i n t o the agency's o p e r a t i o n a l p o l i c i e s and procedures.
A number o f these, as noted i n the r e p o r t , have already been i n i t i a t e d , and
a d d i t i o n a l changes w i l l , undoubtedly, be f o r t h coming. For these c o n t r i b u t i o n s
t o more e f f e c t i v e agency operations, we wish t o express our a p p r e c i a t i o n t o the
Auditor General and h i s s t a f f . While t h e r e a r e obvious disagreements on speci-f
i c s , it i s c l e a r t h a t t h e r e i s unanimity i n the d e s i r e t o make the Board's
operations as e f f e c t i v e , and as e f f i c i e n t , as p o s s i b l e .