ARIZONA MEDICAL BOARD

OCTOBER 14, 2010

EDITED TRANSCRIPT

[Interpolations by the editor for clarity are in square brackets. Editor‟s commentary is
also in square brackets preceded by “ED.”]
Roll call…

Call to Public: We will be calling each person up by name. You‟ve got three minutes. If
you speak about patients please use their initials to protect their anonymity.

There will be no interaction between the Board itself and the members called. We don‟t
have our usual light system. I will just remind you when the two minute mark is
approached, and then the three minute mark I‟ll let you know. So the first member to call
to public is Dr. Jane Orient.

Dr. Orient: I am Jane Orient, MD, member of the Board of Directors of the Pima County
Medical Society and a Past President of PCMS.

A physician who is sent to PACE is required to pay a substantial sum of money, say
$20,000, and loses time from practice. This has the effect of a punitive sanction. The
Board of Directors of the Pima County Medical Society was assured by a physician
member of AMB that the Board would “agonize” over imposing such a measure.

I believe that the Board may be misinformed on this point. It appears that a physician
can in effect be ordered to pay the money immediately, despite financial hardship, and
go to PACE, under threat of license revocation, solely at the discretion of the
administrative staff, or at least without consideration by the full Board.

While the physician may be told that PACE is to evaluate an area of suspected
deficiency, it is not clear what instructions PACE is given, and what recourse the
physician has if PACE deviates from the instructions—for example, by subjecting the
physician to a battery of tests for which the physician has no opportunity to prepare, in
what may appear to be a fishing expedition.

The public and the physician community need to know:

1. What financial or other relationships exist between AMB and PACE?

2. Are these relationships affected in any way by the outcome of PACE
evaluations?
3. Who evaluates the evaluators, and determines that PACE is more appropriate
than a less expensive evaluation, say by a faculty member of an Arizona
institution such as the College of Medicine?
4. How long has PACE been utilized?
5. How many physicians are required to go there?
6. What statistics are kept on the outcomes, and how may they be ccessed?
7. Is the “remediation” accomplished by PACE evidence-based? (Is there any
evidence that physicians provide better care after completing the program? Is
there a more cost-effective way to achieve the same results?)

Keeping in mind that a physician‟s livelihood may be destroyed by a negative evaluation

by PACE, after successfully completing many years of rigorous training and evaluation,
and providing many years of service to the community, the following safeguards are in
the public interest:

1. The AMB should codify its procedure for making a referral to PACE, including
physicians‟ due process rights and recourse if the procedure is violated.
2. The physician and PACE should be given identical instructions concerning the
purpose of the evaluation and methodology to be used.
3. The physician should have the right to record all interviews.
4. The physician should have the right to subpoena and cross examine evaluators,
and to present opposing evidence to an unbiased forum.
5. PACE should be required to supply information on validation and norming
processes for examinations, and all examinations should be shown to be valid for
physicians engaged in practice.

Dr. Douglas D. Lee, Chair: Would you consider winding up?

Dr. Orient: Yes. Potential conflicts of interest should be disclosed and a physician
should have the right to a hearing before being sent there. I do have a written copy of
this for Board members. [Copies of a written transcript were provided to a staff member,
who might or might not have distributed them to Board members.]

Dr Lee: Thank you for your appearance today. We next have Dr. Scott Forrer.

Dr. Forrer: I have been prevented from attending meetings where Board members were
present. I had hoped to present this material, which I have brought and would like to
leave with you for your review if you‟d like. [Dr. Forrer attempted to hand it to the
chairman.]

Dr. Lee: Any material you can leave with staff.

Dr. Forrer: I want to present to you for your review sir.

Dr. Lee: Our process is to give it to staff. Thank you.

Dr. Forrer: My name is Scott Forrer. I‟m a practicing physician of neurology in Tucson.
I‟ve been in practice for 20 years. I wanted to speak about preparing for formal hearing
from the standpoint of the respondent. I have been through many adjudication
proceedings in all my years. I think I have a unique perspective from the respondent‟s
point of view.

There is the ability for the respondent to interact through the chairman at a hearing by
asking questions to staff or to the medical consultant. What‟s lacking is the chance to
interact with the outside medical consultant and ask questions. Often the consultant cites
standards of care…. When the respondent cannot ask the basis, the rationale, the
reasoning, the foundation of the facts as to how that medical consultant arrived at their
conclusion of what is an accepted standard of care for the community or internationally,
the respondent is at an extreme disadvantage.
Going beyond that I would just say that as you physicians and Board members are going
to review or interview a respondent, you can‟t take at face value all the information put
before you by staff as being accurate. There are a lot of things in there that may be
taken out of context…

Dr. Lee: Two minutes is up. You have a minute more.

Dr. Forrer: There are things that are entered into the record or entered into the case
materials that really may not be in full context. Whoever is the presenter before a formal
hearing for a physician really has to dig into these materials.

I think on many occasions—though these cases are big, … and there‟s a lot of detail,
we‟re talking about a physician‟s career, a physician‟s license, sanctions, probation,
legal action, suspension, all kinds of ways a physician‟s life is affected, and also a family,
a community, and patients, and they need to be approached with a profound
thoroughness for uncovering what the truth is in these matters. Thank you.

[ED. An armed security officer was present, between members of the public seated at
the front of the room and the U-shaped Board table. He prevented Dr. Forrer from
handing documents to the Board chairman. These were sequestered by a staff member,
and Chairman Lee was observed to be leaving the meeting after adjournment with none
of the documents in his possession. Dr. Forrer attempted to pass a written question to
the chairman so that he might, if he wished, address it to a speaker. The question was
first delivered to the secretary, Dr. Amy Schneider, to be entered into the record, but was
then withdrawn by staff. Persons addressing the meeting at the Call to the Public were
admonished that there were to be no attempts to interact with Board Members. The
security officer then required that any members of the public who needed to leave the
room had to walk in front of the speaker, instead of around the table where Board
members were seated, apparently to prevent them from directly giving anything to a
Board member.]

Dr. Lee: Thank you…. Our next speaker will be Dr. David Ruben.

Dr. Ruben: Thanks for giving us the opportunity to speak to you. I have been licensed,
and as such working under the Board‟s authorization for 35 years in Arizona. I‟ve got
boards in four specialties and a master‟s degree.

It‟s interesting how systems work...and how organizations can dysfunction. I‟ve been
more directly involved in the Board the last couple of years with a couple of complaints
and got to see up close the processes and been involved in the Southern Arizona Pain
Society as part of the Arizona Medical Society and have spoken with many different
people.

From my perspective, which has been more recently involved the treatment of pain
patients, the medical system in Arizona is not regulated and is dysfunctional. You guys
are not the bad guys. It‟s the system that for many reasons mixes a lot of oil and water,
medical and legal processes. There are political issues and many things that affect this.

But pain care in Arizona, as you‟ve heard more recently, is really not available in our
area. Physicians are not doing it. Patients cannot find care. Most vital I think for solving
this problem is all the stakeholders—the regulators such as yourselves, physicians such
as myself, organized medicine, the legislature which creates statutes, the payers as
insurance companies—need to work together. It‟s a systems problem. It‟s a
dysfunctional system with a problem.

Many of our complaints, whether they involve a poor review of records or a lack of
communication in presenting our cases to the Board, or poor adjudication that‟s
prohibitively costly to us, are an outcome of the systems issues.

I‟m a family therapist. I work with organizations. The way that usually these issues can
be solved is for stakeholders to get together in some way and talk about it. No one entity
can do it by themselves. We can‟t do it by ourselves. You guys can‟t fix it by yourselves.
Communication and interaction of creative ideas is what is needed.

What I propose to you folks is that we have a group, we‟re calling it the Pain Alliance
because pain seems to be the head of the boil on this issue and affects all medicine, and
pain is certainly a very complex, very difficult to treat issue. We have created a group of
patients, physicians, representatives from organized medicine, the legislature and
payers.

We would invite the Board to participate with us in solving some of these problems.
None of us can do it by ourselves. Beyond that, that‟s my point today. I thank you very
much for this opportunity to come speak to you. I hope we can get something working in
a better manner for all of us. Thank you.

Dr. Lee: Thank you.

Male: Question please.

Male: There‟s no dialogue between…

Male: Mr. Quantz arrived from Tucson late, I think because of the difficulty of finding the
location, I wondered if he would be permitted to sign in?

Male: Oh, absolutely.

Male: The next speaker will be Dr. Darrel Jessop.

Dr. Jessop: Good morning! Thank you very much for the opportunity to be allowed to
come here and speak this morning. There was a lot of detailed stuff that I was going to
get into this morning, but my comments will be very quick. It will be addressed primarily
to the physicians on the Board.

I think our struggle is really broken down into two polarities right now. We can cite
different cases, individual situations that we‟ve found ourselves involved in with the
Board…. In looking over some of the cases that have transpired without naming any
names of the individual physicians involved, in examining the court documents and
making an attempt to understand the findings, the recommendations by the court and
the admonishments by the court toward the Arizona Medical Board, I think we can see
with a certain amount of clarity that there have been indications of deceit, of
misinformation, and in some cases outright lies. These are born by the court documents.
My question to the physicians of the Board this morning is, where is your moral
compass? You are primarily responsible in overseeing this adjudication process. Why do
you allow this to go on? Why is it that we have to wait for a court of law to see that a
physician has received due process, or that there have been facts in the case that have
been misrepresented? Where‟s your ethical responsibility as doctors?

To me that calls into question of whether you should be practicing physicians. It‟s all part
and parcel of the same spectrum. Because you appear as a Board representing the
public at large does not mean that removes you from any responsibility for passing
judgment on your colleagues as well.

But I‟m going to finish this morning by stating that whether we all realize it or not, the
times have changed. The fact that we are here this morning making these statements
shows that. There needs to be accountability, and that‟s not meant to be a threat; it just
means that there are more informed people such as physicians, such as people involved
in the law community and in state and federal governments that are overseeing what
goes on at this level. I urge you to look within each and every one of yourselves to ask
that question. What is your ethical responsibility and accountability? Thank you very
much.

Dr. Lee: Thank you for appearing.

Male: The next speaker is David Quantz.

Mr. Quantz: Thank you. I apologize for being a few minutes late. I was coming up from
Tucson and I ran into an accident on the 101 North and traffic stopped. Those of you
from Phoenix are familiar with that.

I‟m going to make my comments brief too. I don‟t want to get into any kind of an
emotional debate. My concerns are about what this Board has in mind for statutory
amendments, because I see here on number 5, the consideration and/or approval of
potential statutory amendments as on the meeting agenda.

Ms. Wynn has I believe a copy of my suggested amendments. They all go to due
process rights for doctors…. From a legal perspective, they are woefully lacking.

The idea that you get a five minute or three minute chance to verbally defend yourself,
from the perspective of an attorney is just senseless. The inability to cross-examine the
outside medical consultant, to find out why he or she came to the conclusions that he or
she came to makes no sense to me coming from again, the perspective of an attorney.
I‟m a trial lawyer. That‟s what I do.

Truth in the American jurisprudence, Anglo-American jurisprudence which has lasted

700 years, 800 years, comes from the ability to meaningfully cross-examine and
question those who come and accuse you. That‟s what due process is. Due process in
its simplest form is notice and a fair hearing. That‟s what we call procedural due
process—notice and a fair hearing. There‟s notice in your process, but there is no fair
hearing.

I‟ve heard secondhand that Ms. Wynn has proposed some changes, or at least is
considering some changes, all which are welcome if the Board chooses to proceed that
way. Insufficient, but welcome. If the Board feels that its procedures as-is is sufficient
due process for the doctors that come before you, then I will do what I can to approach
the legislature in this coming session to force due process on the Board. I appear in
many different courts.

Dr. Lee: Time has expired. Would you consider concluding?

Mr. Quantz. That‟s it. Thank you.

Dr. Lee: Are there any other members of the public who have not signed in who wish to
speak?

Dr. Ruben: I‟ve used my three, but there‟s another subject I could address if I have
another minute.

Dr. Lee: You know…

Dr. Ruben: It‟s on your agenda today.

Dr. Lee: Pardon me?

Dr. Ruben: It is on your agenda today.

Dr. Lee: I will allow one more speaker. I‟m not going to allow everybody another chance
to speak on another subject. So you may, I will give you three minutes.

Dr. Ruben: Thank you. The other issue I want to address is… he monitoring agency,
Affiliated Partners.

Affiliated Partners, which is part of a consent I signed, are going to monitor me. When I
signed the contract with them, the consent agreement said that they would monitor after
I completed the PACE course. They attempted to start monitoring beforehand and I had
to spend a fair amount of money with my attorney to get that straightened out. So that
wasn‟t being followed exactly. I got it straightened out.

The contract itself said such things as, “If there is a dispute between us it will be settled
by some sort of process or arbitration but you‟ll pay for it.” I said, I‟ll pay for it if I lose, but
not if I win.

The other part of the contract was that I would pay for the time the consultant came and
reviewed charts, but I would also pay for travel time. I said look, you guys are in Boston.
I want you to find somebody local. I don‟t want to pay thousands of dollars for somebody
to fly from Boston. They said, “We‟ll make our best effort to do that, but you have to sign
the contract this way.” There are a few other minor points.

They said to me, “Dr. Ruben, we‟ve done hundreds of contracts and you‟re the only
doctor that‟s ever objected to any of it.” I can tell you from the physician‟s perspective
that we‟re scared to death that if we don‟t do everything the monitoring company or
PACE says that we will be out of compliance and have unprofessional conduct alleged
because we don‟t agree to a contract that‟s not fair. We have no way to negotiate.
So I‟d like you to consider that and just be aware of some of the specifics that result from
some of the things you‟re doing. There‟s a lot more on that, but those are a couple
things. Thank you very much for the extra time.

Dr. Lee: The next items on the agenda is formal interviews…

Jennifer Boucek, AAG: This is Part 2 of the training series we‟re doing. We‟ll do Part 3
today as well. We did Part 1 at the last Board meeting. This time we‟re going to do
Formal Interviews, which is the process that takes place at the end of an investigation
basically.

We started out with our training talking about legal representation and legal advice. I
explained at that time I am legal advisor to the Board. We also have litigators; our chief
litigator is sitting against the wall there. We also have independent advice given by the
Solicitor General‟s office. But today we‟ll talk about Formal Interviews.

The Formal Interview begins when a Board investigation is complete and the case is
sent to the Special Investigation Review Committee for review. If SIRC recommends
discipline or suspension or revocation of less than one year the Board staff sends
physicians a letter offering either a Consent Agreement if they want to settle without
going through any sort of interview or hearing process, or they can opt for a Formal
Interview or a Formal Hearing.

Now, if the committee recommends revocation or suspension greater than one year, the
statute requires that the case go to Formal Hearing. So a referral is made by the
Executive Director to the Attorney General‟s office for Formal Hearing at the Office of
Administrative Hearings. The physician has an opportunity to appeal this referral to the
Board and the full Board will consider that appeal.

If SIRC recommends an Advisory Letter, which is a non-disciplinary action, and it comes

before the Board, but after reviewing the record the Board determines that discipline
may be appropriate, then the case is sent back and the physician is offered all three
options.

Dr. Lee: Ms. Boucek, if I may interrupt. I‟d like to go back a slide there. If a SIRC
recommendation is for greater than one year and the physician chooses to go to an
interview, a Formal Interview, you‟re saying that‟s a choice?

Ms. Boucek: No, it is not…. [If you‟ve got] a SIRC recommendation for revocation or
suspension, what you do is review whether you believe that SIRC recommendation is
appropriate.

Dr. Lee: Okay, it‟s just a consideration on our part as to whether that revocation greater
than a year is appropriate or not.

Ms. Boucek: Right. Okay, now Formal Interviews. You know, one of the main
considerations as you move forward in a disciplinary process is due process. Physicians
have the right to due process, particularly under the United States Constitution, the 14th
Amendment which has been held to apply to the states, no state shall deprive any
person of life, liberty or property without due process of law.

Basically a license such as a medical license has been held to be a property interest.
Because physicians have a property interest in their license that means that you cannot
take disciplinary action without affording the physicians due process rights, and
physicians cannot be penalized for exercising their due process rights.

So the process, with all administrative agencies in the state, is supported usually by
going to an administrative hearing at the Office of Administrative Hearings. That really is
offered to all physicians facing disciplinary action in Board proceedings…. The Office of
Administrative Hearings is an independent body, where the case is heard by a neutral
administrative law judge or ALJ. The physician and the state are both represented by
legal counsel. In the case of the state it would be the Attorney General‟s office.

There will be an examination of the Board evidence. The Board will have the burden of
proof in these cases. There is cross-examination of Board witnesses, including the
Board‟s outside medical expert who does the initial opinion that gives rise to the SIRC
recommendation for discipline. So there is an opportunity to cross-examine the outside
medical consultant (OMC) during a process at the Office of Administrative Hearings.
Then the physician has the opportunity to present evidence and witnesses in support of
the physician‟s case. This really is like a mini-trial, but the rules of evidence are
somewhat more relaxed.

Female: The physician is offered this option. If they‟re up for disciplinary action they‟re
offered the chance at this due process, interviewing of the other physician, that‟s been
one of the complaints we‟ve heard. They‟re offered that versus I guess the Formal
Interview with us. The Formal Hearing is very different than the Formal Interview.

Ms. Boucek: That is correct. Actually I prefer to look at it as…the default. This is the
standard process. What the Board offers actually is an additional process, an option for
doctors. If they would prefer not to have to go through a legal process but actually go
through one where they‟re judged solely by their peers, in other words members of the
medical Board, and you‟re involved in a kind of professional exchange with members of
the Board, you‟re asked questions by other doctors.

I have heard practitioners, legal practitioners, who appear before the Board say that they
regularly counsel their clients to opt for the Formal Interview because it‟s a much better
avenue for them…. These attorneys really don‟t like to put their clients in front of an
administrative law judge who may have no background in medicine or medical
terminology, and may have a difficulty in even understanding the substance of the
arguments presented.

Dr. Lee: Is there only one judge that…

Ms. Boucek: There is one Administrative Law Judge who hears the case. Now there are
a number of different judges at the Office of Administrative Hearings. …

Dr. Lee: There‟s no jury?

Ms. Boucek: No there‟s no jury. No. It‟s just a judge.

Dr. Lee: So in our informal interview process we share with the licensees that it is not a
Formal Hearing and that they are waiving the right to a full evidentiary hearing, and they
have no opportunity to question the medical consultant in the process that they have
chosen. Is that correct?

Ms. Boucek: That is correct. It‟s discretionary for the Board to offer Informal Interviews.
Like I said, it‟s just an option that‟s offered doctors because it does provide them—the
legislature set up the medical Board process so that doctors could be judged by other
doctors, perhaps not by other lay people who might not understand some of the
complexities of medical practice.

In any event, if the interview is offered it is important that the physician understands the
parameters and the process of the interview because they are different from the Formal
Hearing process. What we have instituted now is a waiver, a formal waiver of due
process rights.

Because there‟s a recognition that you are in fact not going to get the same legal due
process rights … that you get in the Formal Hearing—the primary one being the ability to
cross-examine the medical expert who rendered the opinion that gave rise to the
recommendation for disciplinary action. As I said if they want to attend an informal
Interview they must waive their due process rights.

Dr. Lee: If they choose not to waive that right—when the chair asks that question and
they say no—what‟s the next step?

Ms. Boucek: We immediately say that this case is being referred to Formal Hearing at
that point. We‟ll take no further action at that point. If you‟re coming before the Board for
an informal Interview you have to acknowledge both in writing and in a formal statement
before the Board at the interview, that you are knowingly and voluntarily waiving your
due process rights.

Dr. Lee: That‟s explained at the Board staff as well as hopefully by their attorney…
Some physicians come without attorneys, but staff does inform them of this choice.

Ms. Boucek: Right. The staff sends a letter to the physician explaining the options in
writing. There‟s a CD with the investigative materials so the physicians can evaluate the
case.

Then there‟s the explanation of waiver on record at the beginning of the interview to
make sure, to reinforce the fact that this is knowing and voluntary.

One of the interesting things too that I found—because I‟ve been a representative of a
number of other agencies—is that the medical Board is very good about giving the
licensee access to the investigative materials at a very early stage of the proceedings. I
know that policy has evolved over time, but currently there is every effort is made to give
them materials early on in the process, and then at the end of the process as well so that
throughout the process the physician understands what the staff is reviewing as it goes
through its evaluation.
The due process waiver was based on a case that was brought back in 2002, because it
used to be that the Board, based in large part I think on the way the statute was written,
had the option of doing just an Informal Interview, but there were no formal requirements
for doing a waiver. But this case Dale Webb vs. Board of Medical Examiners came
before the court of appeals [http://www.aapsonline.org/judicial/webb.pdf]. As I said, the
previous process was to schedule the interview without explaining the rights, and without
a waiver. The court held because there was no waiver of due process the Board should
have permitted cross examination of witnesses at the interview, including the medical
consultant who reviewed the case.

Now it differs. Really the whole process of waiver is based on that, their reaction to that
decision. Like I said, we get through a couple of steps to be sure that people are aware
of what they‟re giving up when they do sign the waiver.

Now during the process it starts out with a brief opening presentation by the physician
and by Board staff. Board staff usually has one of the medical consultants, if it is a
quality of care case, one of the medical consultants that is on staff explain the case. But
that is not necessarily the medical consultant who renders the opinion that forms the
basis of the SIRC recommendation.

The physician and/or the physician‟s attorney can make a brief opening statement as
well. The Board then questions the physician. As you‟re aware, there‟s usually one
Board member who is appointed as the presenting member and that physician starts out
with the questioning. But as soon as that physician is finished it switches to another
Board member or any other Board members who want to ask further questions.

[ED. The physician has the option of some due process rights, including cross-
examination of the Board‟s experts, before one ALJ who may have no medical
knowledge and whose decision is not final, OR no due process rights before the medical
Board, of which the majority are physicians, and whose decision is final.]

Dr. Lee: We have over the years had legislators and others who have interpreted that
five minute brief opening statement as a presentation of their case. That is not the
purpose of the opening statement. The Chair usually states that the opening statement
is just to make some important points and that we have in our files entire argument by
physician and the Board staff about the particular case. So opening statement is merely
a summary of the things that are thought about. Is that the way it is to be interpreted?

Ms. Boucek: Yes. I mean it probably is best for the physician to just kind of crystallize
what points they want the Board to concentrate on, because they will have an
opportunity, and you‟re not really going to be able to get in all the information you need
to within that five minute opening presentation. You‟re best hitting the high points and
then just setting the framework for what your argument is going to be and then going
from there.

Dr. Lee: So the purpose is summary. [I emphasize that] because one of the legislators a
number of years ago made a comment that a physician‟s life and career is in your hands
and you give them five minutes to speak about it. But again, that‟s not the purpose of the
opening statement, is that correct?
Ms. Boucek: Yes, that is correct. They should have an opportunity, and it‟s generally the
practice of most of the Board members who ask the questions, who are presenting
members, to actually go through the physician‟s history, qualifications, education. That is
a good idea for anyone who is a presenting Board member to go through those
qualifications so you have a sense of the background and experience of the person
you‟re questioning, you know, you‟re questioning. So those kinds of things can come out
in the interview.

There‟s an opportunity during the interview for physicians to bring up matters that they
believe are not being addressed through questioning by the Board. There is also an
opportunity for the physician to briefly question staff presenters through the Board chair.
We do require a parliamentary procedure that questions are directed first to the chair
and then to the staff member. At the end there are brief summations by physician and/or
the attorney and Board staff.

Once that occurs, at that point then all dialogue between parties—between Board and
the doctor are cut off, and the Board deliberations begin. Those are all done in an open
meeting format unless of course the Board requests legal advice. Then we may go into
an executive session. But the deliberations are all done in public and the decision is
done in public as well.

As you can see, it‟s not a traditional adversarial proceeding. In many ways you can say
it‟s a fact-finding mission by the Board itself to get some sense of what may not be
evident from the medical records themselves.

Throughout the process the legal advisor, which is me at this time, provides advice on
procedure and Board legal authority to act both during open and executive sessions. At
the end of the conclusion the Board may dismiss the case, find that there has been no
unprofessional conduct, no violation of any statute that would provide a basis for any
sort of action, either disciplinary or non-disciplinary.

It can also find unprofessional conduct and that‟s a two-part process. The vote is taken.
There‟s a determination and a vote on whether there has been unprofessional conduct.
That‟s when the Board usually, if it is a quality-of-care case, will discuss the standards of
care and deviations and potential or actual harm.

Dr. Lee: To get to a finding of unprofessional conduct there must be a standard of care
deviation, is that correct?

Ms. Boucek: Not necessarily. That‟s if you find a “Q” violation. If you find the medical
records—all you need to do is find the medical records inadequate. Or there may be
violations of a Board order. Sometimes in these cases we‟re not talking about medical
practice at all. We‟re talking about violation of a Board order or perhaps commission of a
felony or something like that. In that case staff then will be the presenting investigating
staff.

Male: [It appears that] ... everyone could be punished under unprofessional conduct.
[But we as physicians understand what we are doing, and that it‟s about not harming
patients…]
Ms. Boucek: Yes, absolutely. Actually that is your role. That‟s the most important role
you play is you bring to the table basically, your expertise as a doctor and your
knowledge of how it works. I mean this is why I said some attorneys will not counsel their
clients to go to the Office of Administrative Hearings because an ALJ would not know
about electronic medical records and about how much has been perhaps generated
automatically. You as a physician know about what it means to be in practice day to day
and you understand those things. You are supposed to exercise your discretion and use
that expertise you have.

Male: If I strictly go by the statute something may be unprofessional conduct though it

does not affect the patient, but we may not find it to be unprofessional conduct. [ED:
There may be selective nonenforcement.] Is that correct?

Ms. Boucek: The one thing to keep in mind when you are deliberating is your main goal
is to protect the public. So you keep that in mind as kind of the standard that you use.

For example, medical records—and this has come up in cases. One of the things you
look at is could a subsequent provider understand what treatment had been given to a
patient based on the medical records.

If you feel like there was a technical omission or error maybe but you could still know
how to treat the patient, and like you say the patient‟s health or well-being would not be
affected, the public is not harmed either actually or potentially, then you can exercise
your discretion and say this is such a minor technical point it either does not rise to the
level of discipline certainly, and you could even decide that it is a case that you would
dismiss because it just doesn‟t rise to the level that you think you need to protect the
public from that kind of conduct.

Male: Is it necessary to find unprofessional conduct if you can go for non-disciplinary

action of an Advisory Letter, and is it allowable to find unprofessional conduct and then
dismiss?

Ms. Boucek: That‟s a very good question. There is a kind of—I will say this. On
continuing medical education orders you absolutely have to find a statutory violation.
Even though that is a non-disciplinary order it does actually require a physician to go to
spend money and spend time going to a continuing education course. It is considered an
appealable agency action and that requires a statutory violation.

The Advisory Letter is a little bit different because it is more like a warning I think we‟ve
talked about. It is not a disciplinary action. It doesn‟t—it doesn‟t get reported to the
National Practitioner Data Bank. It has been upheld by the courts as being non-
disciplinary and not subject to appeal, not subject to full due process rights because it is
just such a low—it is a warning and not really a sanction.

So…the definition of Advisory Letter does leave open an interpretation that would allow
for you to issue an Advisory Letter without a finding of unprofessional conduct I believe,
because Part B does say, and I know I‟ve actually given that—Ithink it technically does.

I will tell you I think you‟re better off if you have some statutory basis for moving forward
on an Advisory Letter because if you are looking at this for tracking purposes, and it is
used for tracking purposes, it is best that you have in the back of your mind that [there
might actually have been] enough evidence to support a finding that they had in fact
committed unprofessional conduct.

Male: Can you have a finding of unprofessional conduct and dismiss it?

Ms. Boucek: Yes, you could. You could do that. Someone might argue that you were
not protecting the public interest in that case, but the interesting thing—I will say this.
The Medical Practices Act does not give the patient or the complainant the right to
appeal the matter. Dr. Schneider?

Dr. Amy J Schneider: Because the chair directs [the question] back to the Board
member that presented the case, do you have any recommendations on the finding of
unprofessional conduct? Could you just clarify for me what is supposed to be stated,
what statute at that point? And then there‟s two parts, the finding of unprofessional
conduct, and then discipline.

The physician who is presenting the case might go ahead and recommend to the Board
what they‟re going to recommend for discipline because it sometimes is very confusing,
say if they‟re thinking Advisory Letter and everybody votes down unprofessional
conduct.

Ms. Boucek: That‟s okay. We do this, we set this up so it‟s clear for the record, but
there‟s no reason why you can‟t you know, …because the presenter is just giving you
their opinion. Both are motion and deliberation processes. In other words you can talk
about it at that time.

I think, I‟m hoping now we are more clear on the fact, especially because for example
with the continuing medical education order you do have to have a statutory violation. So
I hope the Board members understand even if you‟re finding unprofessional conduct that
doesn‟t mean you‟re going to have to impose discipline, not by any means. I think it‟s…

Dr. Schneider: What statute specifically needs to be cited?

Ms. Boucek: Well it can only be the statutes that are noticed in the SIRC to the court.
That serves as the notice of violation…. Now a statutory violation is a [different thing
from saying a deviation from a standard of care]. The Board can bring its own expertise
to the situation and add additional violations if it finds them through its review of the
record….

Dr. Schneider: At the time we‟re voting for unprofessional conduct or not, as the
presenting physician would I need to state the standard of care violation and then the Q
and E in entirety….?

Ms. Boucek: No. Because we‟re used to doing it you could say a Q violation, that is
understood. When you say unprofessional conduct, Q is under the definition of
unprofessional conduct so it is understood that is referenced to paragraph Q. Then what
happens is I prepare a paragraph of the findings of fact, conclusion of law and order and
you review that again to make sure it reflects what you as a Board had decided.

So it‟s important for you to review that carefully and—In other words I take down what
you say and I understand Q to be a violation of ARS 32-140127Q. That generally is
correct. But if for some reason I were incorrect in that you have the obligation to review
that.

Dr. Schneider: I would ask what‟s a standard of care violation? I just want to be very
clear.

Ms. Boucek: … There is statute Q that says “shall not engage in conduct that”—I lost
my exact wording—“that may cause or causes harm to the public.” And standard of care
deviations are a way of fleshing out how in fact they violated Q. So you state a standard
of care and say this was the standard of care they should have followed, and the
deviation is what they did, which was not up to the standard of care.

… I will often ask, “Are the standard of care and deviation those that are in this SIRC
report?” Sometimes the Board will decide there are three standards of care and three
deviations listed, but that you don‟t believe one of them was sustained by the evidence,
after interviewing the doctor, so that one will be taken out.

That is why I will ask you, “Do you want all of the ones that are in the SIRC report to be
listed?” I‟ll make sure. Then I‟ll ask you also to specify the actual or potential harm,
because that is part of the Q statute, you have to show either actual or potential harm to
the patient or to the public.

There is case law on that as well saying if you aren‟t really clear about what that is and
whether it is potential or actual the court is going to send it back to you for review. That‟s
why I ask for that as well to be specified on the record.

Male: In the situation where the Board may wish to be able to track a physician but may
not want unprofessional conduct—for example a hospital reports a physician or reduces
privileges of a physician because there are multiple complications reported, for a
surgeon let‟s say, and none of those complications by themselves would necessarily be
cause for alarm, but there are multiple, perhaps an unusual number of recognized
complications. So the Board might wish an opportunity to track this physician, but on any
individual case may not really be able to find unprofessional conduct because after all it
is a recognized hazard of the procedure. In a situation like that could the Board issue an
Advisory Letter without finding unprofessional conduct?

Ms. Boucek: Let me put it this way. Each case we have to decide obviously on its facts.
My answer to you would be if you look at the statute and the definition of an Advisory
Letter, there are three parts to the definition. One part talks about a violation. The others
just talk about conduct. An argument can be made that because only one refers to an
actual violation that the other two parts of the definition do not necessarily require that
you find a statutory violation. That argument can be made. I‟m not advocating that in any
particular case, but that is the way the statute is read….

Ms. Boucek: So if the Board does find unprofessional conduct the Board may issue a
non-disciplinary action. Like I said, that can be an Advisory Letter or a CME order. They
can impose limited disciplinary sanctions and those are specified. Then finally the Board
can conclude a hearing and actually decide the conduct was more serious than they
actually realized, and Board may want to recommend something such as revocation or
suspension for more than one year. They can then refer it to a Formal Hearing. That has
not happened in my experience, but I know it can happen.
There also have been cases I understand in the past where a matter has become so
complicated...that the Board decides they aren‟t adequately prepared to handle it in a
shorter process too that they will decide that this should be referred to Formal Hearing
for a lengthier process.

Male: So even if the physician would like a Formal Interview with our peers, the Board
itself can send it to Formal Hearing?

Ms. Boucek: If the Board believes it is not going to be able to fairly adjudicate the case.

Female: Going back to the questioning. After the physician has made their opening
statement and then questioning starts by the lead Board member, just for information
maybe for the newer Board members too, what information should be at our disposal?
Just the information that‟s been given on the disk? Or is there any recommendation,
comments about people maybe asking their friend who is a neurologist or something a
question. Should we really confine what we know to the record in front of us?

Ms. Boucek: That‟s a very good question. Yes, I would recommend you do that. Now
there are occasions where you may be aware of a particularly relative source document,
and I would recommend this only if it is a published document that can be brought in to
be shared with other Board members and with the physician so they have an opportunity
to see that. That is possible. It has to be shared. It has to be something like that.

Now that is a different thing from saying you can‟t bring your own experience as a
physician to your deliberation. But I don‟t mean to imply that you can make a subjective
decision like, “I don‟t like this because I don‟t do this.” But say you have experienced the
fact that electronic medical records will produce certain information regardless, just
because you hit the button, and what‟s going to come out isn‟t really under your control.
You can bring that kind of experience to the table.

Male: So then do I detect a difference in the way we can approach this if we are the lead
off interviewer? [We can use] something we feel is part of our basic set of knowledge
because it‟s pretty much within our own specialty, versus [something that isn‟t]? For
instance there were times before Dr. Schneider came on board that I had to present OB
cases. I knew nothing about fetal monitoring and tracing and what they were talking
about. It was necessary for me to educate myself on that whole process.

Your predecessor instructed me that if I have to go to the literature, to the text, it was
then my obligation to disseminate that information not only to all the members of the
Board, but also to the licensee and their counsel because I didn‟t have that as part of my
mindset knowledge. So there‟s a difference then because what we know because I‟m a
surgeon and what we might have to investigate and discover because we‟re facing a
case that is not particularly in our own specialty. Do you still make that distinction? Is
that obligation still there?

Ms. Boucek: Right. I agree with that statement. If you do have some outside source of
material that is relevant you do need to produce it for other members of the Board and
the licensee and give that to them so that they have an opportunity to review it and offer
arguments either in support or against it. Which means you have to be prepared well in
advance for the Formal Interview.
[ED. While a Board member must provide documentation to the Board for any opinion or
information based on reviewing the literature, any statement he makes based on what
he “knows” in his own specialty is taken on faith, it appears.]

Dr. Schneider: But can we ask questions on anything in the material that was given to
us, or just what‟s in the SIRC report?

Ms. Boucek: Oh no. The SIRC report…is a recommendation. That‟s all it is. It provides
a nice summary for everyone kind of starting out, but it is simply a recommendation….
But the one important thing it does is to serve as a notice of the statutory violation. So
the statue may be Q or E or R, or violation of Board Order; you‟re locked in by those
particular statutes.

Like I said, with standards of care and deviations, you have a Q violation stated, and you
may be able to formulate different standards of care and deviations based on the record
before you. But they need to be noticed that in general you are going to be looking at
quality of care….

Male: We did have an issue yesterday with a physician who presented a procedure that
he did that incredibly surprised us…. He presented it as usual and customary practice….
When something like that comes up that we say, gosh, we have never experienced
anything like that and you present it as a customary practice. His practice was so
specialized that none of us had a chance to be exposed to it. How do we investigate
that?

Ms. Boucek: Part of the investigative process is to give the doctor a number of
opportunities to respond to the outside medical consultant‟s report. And the Board tries
to find someone in the same specialty, and they try to get as close to the subspecialty as
they can in those cases. They will—and we are seeing this with more frequency—send
cases back and find another consultant if we find out the first is not adequately versed in
that specialty.

So the physician [has a few opportunities to make that argument about the consultant.]
As you know, as you‟ve seen some of the files, some of the attorneys will send in things
right up to the last minute. I mean they will keep sending in expert opinions and things
like that and you have an opportunity to review that. Then at that point that is the record
before you.

They can discuss it, and [if they have no other evidence and this is the first time you are
hearing this,] you then as the triers of fact judge their credibility and once again you bring
your own whatever experience you have that you think is relevant to it. But you can look
at the totality of the circumstances, and at the reports that have already been issued.

You might want to look at the fact that this information was not raised until the day of the
hearing or the interview, because if it was so customary why wasn‟t it mentioned earlier
on in the process? You can take into consideration all of those factors to determine
whether you want to accept that doctor‟s position that this is in fact customary procedure
in their specialty. Does that help?
Ms. Boucek: … Here is the definition of the Advisory Letter: 1. Insufficient evidence to
support disciplinary action but conduct may result in future discipline if it continues. So
you can see it doesn‟t talk about a violation there. It talks about conduct and it talks
about insufficient evidence to support discipline.

2. Minor or technical violation that does not warrant discipline. 3. Mitigation through
rehabilitation or remediation, but if conduct continues it may result in future discipline. So
the third one, one could argue, implies that there was unprofessional conduct, but there
have been subsequent steps that have kind of mitigated it so that now, if you look at the
doctor‟s current practice, you don‟t believe they are continuing that practice and
therefore what they‟re currently doing would not rise to the discipline.

I do want to make it clear that I am giving you a reading of the statute that is
theoretically, and I‟m not saying that is how I would advise you because that will be done
in executive session, on a particular case....

Then we have CME here, which is an appealable agency action that is authorized under
the statute…. If it comes from Formal Interview, the appeal will go to Superior Court. If
it‟s just ordered as SIRC recommendation for CME and the Board just considers that in
its meeting and then decides to issue an order for CME, it will go to the Office of
Administrative Hearings.

If you‟ve done a Formal Interview, they‟ve had hearing. But they do have the right to
appeal to the Superior Court at that point if they believe there were problems with the
interview process.

Here are the limited disciplinary sanctions that the Board can impose after Formal
Interview. The letter of reprimand, or decree of censure. There‟s no real distinction in the
statute as to what these mean. I think traditionally the Board has kind of taken a step
approach in the first time there is a discipline there is a letter of reprimand, then decree
of censure is technically considered more serious than the letter of reprimand. It‟s
“considered,” and I say this in a very informal way, but this is not policy, I‟ve heard it said
that with a decree of censure you certainly have to be concerned about the next step the
Board might take, if you violate the standard, especially in the same way that you did
when you got the decree of censure. In the decree of censure the statute says that the
Board can include restitution of fees to the patient. Then there is a letter of reprimand
with probation. It may include suspension for less than 12 months. It can have a practice
restriction. It can require the physician to complete a rehabilitation training or
assessment program at the physician‟s expense. Then civil penalties can also be
imposed. You can do any combination of these. So you can have a letter of reprimand
with probation and a civil penalty.

Dr. Schneider: I‟ve noticed we often get cases referred to us from other states and often
other states impose civil penalties and it seems we rarely do. Is there an explanation for
that or is that just the current Board policy?

Ms. Boucek: Yeah, that actually is. I mean you can do it…. Just because it just hasn‟t
been done it doesn‟t come to mind sometimes when SIRC is making their
recommendations. But there are some cases especially where if you believe a monetary
penalty might have a beneficial effect, say on a doctor‟s performance. For example, I‟ve
seen them imposed before in medical records cases. If a doctor is refusing to turn over
medical records that is one where a monetary penalty might cause the doctor to think
about whether this practice should continue.

Dr. Schneider: If there‟s a civil penalty, where does that money go to? Does it go to the
Board?

Ms. Boucek: The general fund, the state general fund…. You would be helping the
state‟s budget crisis. [Laughter]

Male: Are the so-called restitution of fees to a patient just the billable fees that were
charged to the patient?

Ms. Boucek: Yeah, it would likely be out of pocket for the patient. So in many cases
that‟s why you don‟t see restitution a lot because the insurance has paid for most of the
procedure so it‟s not considered usually something that is a remedy….

Male: ….So if the patient paid $100 for the visit, is the doctor supposed to pay the
patient back $100?

Ms. Boucek: Right. These are not punitive damages. So you cannot use it in a sense as
a penalty. The [purpose] is to prevent unjust enrichment by the doctor.

I‟ve already said if the Board believes the physician‟s conduct may warrant suspension
of greater than one year revocation, the Board must refer the matter to Formal Hearing.
So when you‟re doing your deliberation and your questioning it‟s important to make a
record. The appellate judges only have a transcript and the medical records.

In a case that was appealed, there was a nurse‟s note that said only that she updated
the doctor on the status of the patient…. When you‟re in the Formal Interview and you
see the witness and you hear the testimony, you see that note and also what the doctor
did afterwards, [which indicated that he must have known of the patient‟s deteriorating
status.] The reviewing judge, however, who didn‟t get to hear the testimony or see the
witness [or understand what happens in practice]… did not accept the fact that updating
of status meant that the nurse informed the doctor of the patient‟s deteriorating
condition. The judge will not infer anything. It has to be in black and white in the record.

I have learned from that opinion as well because I realized the one thing I have to do is
keep that in mind all the time in advising you so you complete the record and make
explicit statements on the record and in your questioning and in your deliberations that
will explain to any outsider who was not present why it is you‟re arriving at the
conclusion you did and why you made the assumptions you did. It really has to be
spelled out in black and white and not just assumed for the record because all they do
have is that written record.

Anyway, and then the second part is when making motions you need to make sure all
the Board members understand and agree on the factual basis for the motions that
everyone‟s in agreement. The Board is usually very good on that procedure. Does
anybody have any questions about?

If the physician disagrees with the findings of fact, conclusions of law, and order they
can file a motion for a hearing or review. They actually have to file it if they want to
appeal it further; it‟s called exhausting your administrative remedies. If this motion is
denied the physician can file a judicial review action which is an appeal to the Superior
Court. It‟s generally one judge that‟s assigned to be the superior court judge to hear the
appeals of administrative agency decisions. That judge will be on a rotation for a while
and then it will shift. Right now I think it‟s Judge McClellan.

My role is to write up the dry findings of fact and conclusion, based on the record. One
thing Board staff is doing now which I think is very helpful is to send out a draft copy of
that order to legal counsel for the physician so they can review it. If they have problems,
they can make suggestions supported by the record. Of course I am not just
regurgitating verbatim the transcript.

So I put in what I find are material findings of fact, but if the legal counsel has some
suggestions and it‟s supported by the record I will put them in there. There are generally
for the benefit of their client, but if it is supported I will put it in there. That doesn‟t change
the conclusions. They were in the record. If I‟m doing the order you‟ve obviously decided
you still want to impose discipline.

The interesting thing about that though is I think a lot of times I find that physicians often
just want to make sure their side of the story is in there. They may accept the discipline,
but they want to make sure their side of the story is in the document and set out.

Sometimes I will say “they testified as to this,” which is not to say that you found that as
a finding of fact, but I will sometimes put in things like that to show they did make that
statement on the record. Obviously the conclusion in the end is decided, to impose
discipline.

[Break]

Ms. Boucek: The Formal Interview is an extra option for the doctors. But revocations or
suspensions of more than one year must be referred the Office of Administrative
Hearings. Any summary actions must have a hearing within 60 days.

Any license denial appeals go first to the Office of Administrative Hearings and then that
comes to the Board for review. Than any non-disciplinary CME order that the Board
issues without a Formal Interview is appealed to the Office of Administrative Hearings.

Dr. Schneider: I have some information, I guess from the Cliff‟s Notes of Board
presentation, possibly from years past. One of the reasons it lists a case needing to be
referred to a Formal Hearing is if you think it‟s going to take over one hour. We had
several cases that have gone well past that. Can you give us an idea of what‟s an
appropriate amount of time that Dr. Petelin [laughter] may question a physician?

Ms. Boucek: I‟m thinking it‟s a far better rule to not set any artificial time limits. Have
some sense that you‟ve got an agenda, but you want to make sure you are able to get
all the questions that you have answered…. I think it would be a problem for the Board
to ever setup strict guidelines on how long the process might take.

Female: What is the cost for a Formal Hearing?

Ms. Boucek: That can vary, depending on how long it goes…. [perhaps $2,000 to
$12,000].

Female: What if the physician goes to the Formal Hearing and wins their case. Who
pays the cost?

Ms. Boucek: They‟re not necessarily awarded attorney‟s fees, but only the cost of the
Administrative Hearing.

Female: But if they call a block of witnesses and consultants that could run the physician
more than a regular trial.

Ms. Boucek: It could, but that would be their costs, yes. In most cases, yes. What
happens is once a matter is referred for Formal Hearing the case materials are sent to
the Attorney General‟s office where the materials are reviewed. The litigator will consult
with Board staff if additional investigation is needed. They draft a complaint notice of
hearing. They prepare the exhibits. Then the litigator may attempt to settle the case prior
to scheduled hearing. Now there‟s already been, usually by this time there‟s already
been one consent decree sent to the doctor that‟s been turned down. But as we get
closer to the possible hearing date it‟s often people are willing to maybe negotiate a little
more at that point.

Male: Do you negotiate with the doctor‟s attorney or do you negotiate with the doctor?

Ms. Boucek: It depends. If they‟re represented by counsel you have to do it through

counsel. But if the doctor is unrepresented then we might speak to the doctor directly.

Male: Can you briefly explain, Ms. Boucek, who the litigator is in these cases? Is it
yourself? Is it somebody on the Board?

Ms. Boucek: Right now, Ann [??] is our main litigator. We do have another one. It‟s
someone from our licensing and enforcement section at the AG office who handles the
case. I kind of coordinate with them as the legal advisor because I‟ve often been present
in a SIRC meeting for example where the recommendations were made. I don‟t
participate in the argument. I‟m present there so I‟m somewhat familiar with the facts of
the case.

But generally it‟s handed over to the litigator and becomes really the litigator‟s case.
They are pretty much solely responsible for it. They can contact Board staff if they need
anything but it moves forward along. The litigator handles the—any correspondence or
interaction with the doctor or doctor‟s counsel.

Male: It could be an outside litigator, is that correct? Or any litigator at the AG‟s office?

Ms. Boucek: Right. Or on occasion we have hired outside counsel, but it is done
through the Attorney General‟s office.

Just briefly the Office of Administrative Hearings. As I said it‟s an independent state
agency for administrative hearings. The administrative law judges come from all different
backgrounds. They hear a variety of cases. They may hear a state procurement case
one day or a real estate licensee case…. They hear testimony. They review exhibits. As
I said I think before the rules of evidence are relaxed in the administrative process so a
lot of the technical rules that you may have either encountered or seen in trial dramas on
TV or something, hearsay and all of that, they are not necessarily applicable in an
administrative hearing.

It is a much more informal process. Generally everyone is sitting around a table. The
witnesses are sworn, and it is recorded.

Male: How are the cases assigned?

Ms. Boucek: It is decided by the Office of Administrative Hearings. That is not to say we
don‟t have any part in that decision whatsoever. There are some judges that we tend to
encounter more frequently than others. We do get a variety. It isn‟t always the same
judge.

After the record is closed, the ALJ has 20 days to write an opinion…. So it‟s meant to be
an expedited process and it is. They provide—the ALJ will provide the agency with a
written findings of fact conclusions of law and recommended order. The Board has the
burden of proof by preponderance of the evidence except in license denials and non-
disciplinary CME orders because those are what I refer to as “appealable agency
actions” so under the statutes the licensee has the burden of proof.

Normally when you have the burden of proof you have to go first and present your case.
That actually doesn‟t happen at the Office of Administrative hearings very often.
Generally we still have to go first. But technically when the judge is weighing the
evidence and facts the burden of proof is to be on the licensee or potential licensee.

Male: Would you briefly just explain what is preponderance of evidence?

Boucek: People often describe it as 51% basically. In other words it‟s just, the balance
can be a little bit beyond a balance. It‟s not like beyond a reasonable doubt in which
case you pretty much have to erase any doubts. I‟ve heard people try to formulas like
“clear and convincing” evidence is 75% and beyond a reasonable doubt is in the high
90‟s or something like that. It‟s kind of a hard way to do it. It does mean though that
when the reviewing court looks at it they look to see if there is substantial evidence to
support the findings.

Male: Would you straighten me out? I thought the preponderance of evidence was not
so much the majority, but as it was a reasonable person presenting the same facts and
presenting the same material would come to that same conclusion. Not necessarily the
majority of people, but the reasonable person. The preponderance of evidence does not
necessarily mean the greater number of people voting one way. Am I wrong in the way I
think of that?

Ms. Boucek: I forget exactly how the standard reads. I know with standard you‟re talking
about that I do think you have to, you know, you kind of have to think about the scales of
justice and basically the scales really need to be such that they are going in favor of
finding against, so there does have to be a certain sense in which the weight of the
evidence, it is such that there is more evidence tending to prove that the licensee is
subject to discipline.
Male: If someone had five answers and they said something one way, and the other only
had three that said it the other way, then the five would be the preponderance, but that‟s
not always the case because the evidence may reflect that a reasonable person when
looking at that evidence would say this way. So preponderance could really be
quantitatively in the minority.

Ms. Boucek: Let me back up on this. What that is talking about—when I talk about
preponderance of the evidence, what you first do is you hear the evidence. You decide
what is credible and what weight you‟re going to give to the particular evidence. So once
you categorize that. In other words you may have five experts over here and only three
here, but you decide you like the three—the three here are more credible for various
reasons because they are in the same specialty, just for various reasons, and the five
you don‟t find credible maybe aren‟t. So it isn‟t that you have quantitatively more
documents. It‟s when you look at it, filtered through it, and decided the weight of the
evidence presented by one side is that you find credible is greater than the weight you
give to the other side. That‟s how it goes.

So after the case goes through the formal hearing at the Office of Administrative
Hearings, there is a final Board action. One of the things the Board members must
review the Office of Administrative record and we require Board members acknowledge
that they have indeed reviewed that record before making a decision. Then the Board
has the option to accept, reject or modify the ALJ‟s recommendation.

The legal standards for any changes, you must write the hearing record to modify it. You
may use once again the Board‟s knowledge and experience for standard of care. For
certain facts, for credibility for example, the ALJ‟s determination is entitled to greater
weight, but there is a case called Whitman [??] in which the Appellate Court decided the
Board may accept or reject or even modify credibility findings after review and citation to
the record.

So you want to be very, very careful though when you do that. In credibility
determinations, the courts are going to prefer the person that was actually there to judge
the credibility of the witnesses making that determination. However, as I said, they will
permit it if you have a really well defined basis for [differing with the ALJ].

Male: What about the other way around? Let‟s say that we have a Formal Interview
going on, and we determine credibility of the physician as XYZ, does the judge look at
our evaluation of the credibility as documented in record as having more weight than him
or her listening to that witness at the time?

Ms. Boucek: I‟m not sure that the Formal Interview is even considered by the ALJ
[confers with litigator]. I think it‟s perceived at that point that they don‟t look at what the
Board has done.

Like I said, the ALJ‟s order is a recommendation but the Board‟s order is the final
decision….

Male: How much time does the process take?

Ms. Boucek: That can vary quite a bit. We have been trying really to speed up that
process recently. A lot will depend on what happens in the interim. We had set a goal of
trying to get things to hearing within 90 days but then that was our goal when we first
had I think two or three litigators and now we‟re down to one.

I think it also depends on if we do summary suspensions as I said, summary

suspensions have to be done within 60 days, so you have to drop everything basically
and do that. So that puts off the cases that are referred for disciplinary, routine cases
referred for disciplinary action. And we‟ll triage those cases depending on for example if
the doctor is not practicing then we will perhaps triage that case for later than one who is
continuing to practice and may have some issues that need addressed more
immediately…

Male: 90 days?

Ms. Boucek: We try. That is our goal, but it‟s not set in stone. That‟s not a statutory
requirement. It‟s only on the appealable agency actions and on the summary
suspensions that we have the time requirements. It‟s kind of ironic, unfortunately an
appeal of a CME order has to take precedence over a revocation hearing because of the
statutory requirements.

Male: When a physician gets suspended from a hospital, is it an obligation of the chief of
staff to report that to the Board?

Male: Yes.

Male: How long does the Board have to act on that?

Ms. Boucek: There are no statutory time limits on that. So the Board just when they get
that revocation they will look at that. Now if it is something they see does require—I
mean if they have been suspended I mean they will kick into action immediately and that
is often when you will see some of these summary suspension actions take place. That
can be a matter of days after seeing the complaint, or within 24 hours of receiving that
complaint, or within hours I shouldn‟t even say 24, they will be setting up a meeting of
the Board to consider a summary.

What they try to do—what the Board staff tries to do is give practice restriction a place
immediately so that then they know if there is harm to the public.

[Apparently, Board staff looks at matters and decides whether they need to go to Board
members urgently…. They can make a decision and it may not come to the Board at
all…. Several people talking at once… Some things involving hospitals are personnel
issues more than quality of care issues.]

[It is unprofessional conduct for a hospital chief of staff not to notify the Board of a
suspension. What if the chief of staff is a D.O.? The AMB does not have jurisdiction over
him.]

[Discussion of the backlog of cases. Problems involve protecting the public and affording
the physician due process rights.]
…

[Discussion about notifying other hospitals of suspensions and of later dismissals.]

[Several talking at once.]

Male: How does Arizona‟s due process procedure for physicians, do you know, compare
to due processes for other state medical Boards? First as to other professional Boards in
this state, and then how do we compare due process rates to that say of California‟s
state medical Board or other medical Boards?

Ms. Boucek: … Single head agencies have only one process, referral to the Office of
Administrative Hearings. There‟s no open meeting process in that case. So there‟s a lot
more openness [with the AMB] because you‟re subject to the open meeting laws.

Based on talking to private practitioners who have practiced before other healthcare
Boards, they often sing the praises of the medical Board and say it is a very professional
Board and they appreciate the process that is followed here.

As far as other states, I only have anecdotal evidence based on conversations with other
Board attorneys. I recently had worked in a state which shall remain nameless in which
they named how they do a number of things with doctors at the investigative stage. They
impose certain things, in which really raised my eyebrows because I don‟t think it‟s in
their statute. They talked about how they will impose certain requirements through the
investigation process but then it doesn‟t become an official disciplinary order … at the
Board level that has to be reported to the National Practitioner Data Bank. I was kind of
surprised at that. They asked if we had anything similar in place and I said, “No.” I
certainly would never allow—the Board I think has done an excellent job of really trying
to stick closely to statute.

I think any mistake the Board has made in the past, for example we saw the Webb case.
If you look at the statute, the Board was actually in compliance with their statute. So they
were trying to follow the statute. It‟s just when the court looked at it they realized when
you look at the principles of due process and the case law that developed from that, they
determined the process of formal interview wasn‟t sufficient so then once we got that
ruling we started the waiver process.

Male: [Are the rules for the osteopathic Board similar to ours?]

Ms. Boucek: There is a difference. They do investigational interviews. It‟s almost like the
Board acts like SIRC in many ways.... That can be unwieldy to try to do an investigation
through a large Board in an open meeting.

[Some Q & A about PAs,(physician assistants), who are covered under a separate
statute.]

Comment from Executive Director Lisa Wynn:

I just wanted to thank Jennifer and Ann [litigator] for the great work they‟ve done for us.
Just to report as far as the due process, Dr. Wolf and I had the opportunity to meet with
Steve Nash of the Pima County Medical Society and a number of the members of the
public. Amanda [Diehl] and I also met with Sen. Paula Aboud and some defense
attorneys for the Tucson area, so we try to create dialogue.

But through those dialogues we have made some improvements I want to just kind of
put them [before you]. They‟re small, but we‟re open to improvement. One of them is that
previously when a complainant asked for anonymity we did not give that full record to the
physician respondent; we would just summarize the complaint, to help preserve the
anonymity of the complainant. Sometimes the complainant was a patient or a family
member of a patient or another professional.

After having some dialogue about that and wanting to give physicians as much due
process as possible, around April of this year we changed that process and now provide
a redacted copy of the actual complaint. It‟s already very difficult to preserve the
anonymity of a complainant when there‟s so much specific information about treatment
or on a patient, but we have made that change. We haven‟t gotten any feedback yet, but
we‟re hopeful that will help physicians get the full picture.

Also we‟ve created in our letter, if you noticed Jennifer talked about the notice to the
physician that there has been a recommendation for discipline, there is an opportunity to
request a Formal Interview or request a hearing. We now create an invitation to them to
meet with the staff prior to the interview to allow for additional dialogue that hasn‟t
occurred through the exchange of public record. They‟ve already submitted a response
and possible supplemental response, but [if there‟s any dialogue that needs to occur,
this would be an opportunity]. We did that right around April as well….

In one case it was more of a clinical nature so Dr. Wolf attended. The next one is
scheduled actually for tomorrow, more of a conduct type of issue. If it were more of a
legal issue I would ask Ann to attend, but it‟s just one more opportunity for dialogue and
we can provide guidance to assist the physician in making a decision on how to move
forward.

Then finally, when a physician is noticed in the very beginning when he gets a copy of
the complaint and notice we are starting to collect records and open an investigation, we
always grant extensions for any reason a physician needs additional time. We keep that
time really short, like within two weeks, just to keep the process moving. But we‟ve
always granted those extensions. We now state right in the letter this is due by, say, the
18th, but if you‟d like an extension please let us know

So those are some of the processes that have been put in place. We will continue to
meet members of the public or the medical society

Male: At least I notice on some of the licensee supplemental responses they seem to
have the outside medical consultant (OMC) recommendation specifically addressed or
comment on oversights in those. Do they have a kind of list of statutory violations of
deviations at that time from SIRC so then they can use the SIRC recommendation and
the OMC‟s opinion together then to respond to that?

Ms. Wynn [?]: They don‟t have a formal opportunity to respond to SIRC.
Male: It seems like sometimes the physician‟s response is kind of off the mark. I just
wonder whether they are responding to what they think is the main concern, but seem to
miss the point as to what‟s really the deviation.

Ms. Wynn: Even though they don‟t have the SIRC report, they do have the OMC‟s
report. The report has a style that is supposed to set forth the standards of deviation and
then a summary....

Male: So you usually find that the SIRC report closely follows the OMC suggestion of
deviations or standard of care.

Ms. Wynn: The SIRC tries not to deviate too much from the OMC....

….

Male: [Let‟s look at anonymity from the complainant‟s side….] Do we have a form for
them, there‟s a lot of reasons, but the majority of reasons for anonymity are very
legitimate. Do you think that they want anonymity because of fear they would be outted?

Ms. Wynn: I can tell you the vast majority of complainants do not request anonymity. If
they request anonymity the investigator who is initially assigned over the investigation
will reach out and have a conversation with them....

Male: In the past you had summarized it so there‟s not enough information for anyone to
really identify who that person is. I‟d imagine a few people want true anonymity for real
reasons. Now if we initiate the due process there‟s no way to continue in the same way.
I‟m just wondering if the process we have to make sure we don‟t—that we hear from
complainants who, “Oh man, I wouldn‟t be submitting this if you‟re going to take all I
write down here and expose me to….”

Ms. Wynn: One of the things we do when we redact that is…to read through the
complaint and whatever it is [that‟s worrisome to the complainant] we try to take that
information out and just leave the facts of the case.…

Occasionally, very rarely, but occasionally we get a truly anonymous complaint where
the identity of the complainant is not even known to Board staff. Can we still investigate
that? It‟s harder because we can‟t contact the person for certain information, but we
have on occasion acted on a truly anonymous complaint. So we get a complaint without
contact information we still have to legally investigate it if there‟s enough information by
which to conduct the investigation

Affiliated Monitors: Mr. Vincent DiCianni

Thank you very much for inviting me. One of the things that I see as I go around the
country—we work with a lot of regulatory Boards as I mention in my presentation—is the
fact that there‟s either a misconception or no sense at all of what you folks do, the
dedication you put in of your time. I really appreciate it in the services that we perform.
But I see it in the public. They don‟t understand what a Board does. So I think the
dedication, time, and commitment you put in is woefully underappreciated by the public. I
really do enjoy working with Lisa, Kathleen, and Todd and staff as we have over the past
couple of years.
I‟m an attorney by profession. I started out in the Attorney General‟s office in
Massachusetts in the early „80s and had many cases involving practitioners who worked
for the state or state agents who were getting sued for malpractice. As some of you may
know, when you‟re suing the state and it‟s a malpractice case it often turns into a civil
rights case so that you can get more damages and attorney‟s fees. So we ended up
getting these cases that would go on forever. I had a lot of suicide cases, misdiagnosis
cases from state institutions around the state of Massachusetts.

I worked out of the Attorney General‟s office and went into private practice where, some
would say I went to the dark side, and I represented practitioners before Boards and in
malpractice defense work for a number of years. In 1996 I had a case before the medical
Board in Massachusetts. It involved a psychiatrist. Some of you may have heard me tell
the story before. But it was sort of an eye opener for me and started me thinking….

The psychiatrist had a host of allegations against him, boundary violations, over-
prescribing, bad records, self-medicating. I mean it was everything you could mention.
Nearly suspended, went through a six week hearing before the Office of Administrative
Law Appeals in Massachusetts…. Long hearing. Recommended decision that the
hearing officer said you didn‟t prove anything to the Board; he was shaking.

So we went before the Board and helped to get his license back. At that time the Board
said to us, my client and I, we want you to have a monitoring mentor and we‟ll give you
your license back. We looked around the room and questioned, I had never heard of it
before.

I said, “Well, what does a monitoring mentor do? Who is the monitor?” The Board said to
us, “It‟s up to you. Just bring us somebody and they‟ll be the monitor.” So he ended up
getting a friend of his to be the monitor. It didn‟t work because there was lack of
objectivity on the monitor‟s part, but I loved the idea. It was something that again I had
not heard of before.

In my defense role it was either a suspension or revocation, if you get to the hearing part
of the case it‟s going to be a more severe form of sanction if you don‟t happen to prevail.
So I liked the idea.

In early 2000 I reached out to a number of practitioners that I respected in the

community, some were regulators, some were folks who handled professional issues
dealing with either an addiction or some other problems on a professional level. I
reached out to folks who I respected in the medical, legal, and business community
looking to see if there was something, an entity we could put together to provide
alternatives, remedial alternatives for licensing Boards, for permanent oversight
agencies where in those instances where the behavior didn‟t necessarily reach a level of
a suspension or revocation, but it wasn‟t enough to just either be dismissed or just a slap
on the wrist if you will, but some kind of remedial program where you could try to
rehabilitate, help fix deficiencies that the Board had found. And then with some
rehabilitation and some monitoring over a period of time the practitioner could
demonstrate to the Board that he understood the problem and had fixed it….
We created Affiliated Monitors in 2004. We started working with the Massachusetts
Chiropractic Board, which was a pretty progressive Board at the time and had been
inundated with all of these personal injury cases, the car accidents where four people in
the car go to one chiropractor, everybody gets the same regiment of treatment, and it‟s
happening again and again and again.

The insurance fraud division in Massachusetts was created as a result. It had this influx
of cases to the chiropractic Board where they were just overwhelmed with it. They were
looking for us and we were looking for where we could find our place in the world in
providing these services. We started there.

We started then working with the Massachusetts Medical Board and then we moved to
other states, New York, New Jersey, Tennessee. That‟s now spread over the time that
we have been in business. So it‟s a company that provides remedial services. We‟ve
been working with your Board for a number of years now on a host of different cases
that I‟ll talk about in a minute.

So the four services that we provide, just so you get a feel for what we do and how we
do it. We provide monitoring. Monitoring I think has an almost an east-west sort of
differentiation in terms of monitoring.

On the east coast monitoring didn‟t come into being until…late. In fact some Boards are
still living in the dark ages. They still have their regimented sanctions.

But on the west side of the country I have found this out from dealing with the state of
Colorado, they had monitors but they have this real cynicism about monitoring because
the practitioner would bring their buddy to be their monitor and it would be what do you
get when the report says “all set.” That‟s what the monitor report looks like. They were
very uncomfortable with the process of monitoring they‟d usually get because they had
no faith in the integrity of the monitoring process.

So what we did as a company is to create a process if you will where we use local
practitioners who are experienced, educated, and have peer respect and also integrity
obviously, and put a monitoring process in place.

So what we do on our monitoring side of things is we take a Board order or a term of

probation, the cases come to us in a lot of different ways

On the monitoring side of things we take your order, and that‟s why you‟re always good
because there‟s a specificity in there of what the issues are that you want us to address.
That‟s really important to us because we need to give direction to the monitor.

We need an order that says it‟s a boundary case. Do these things. Or it‟s a deficient
record case, or it‟s a billing flaw case. Whatever the issues are that have been presented
to the Board, the Board has made some type of finding or there‟s an agreement, giving
us that kind of detail really helps us in crafting a custom -ailored monitoring for that case.

…Who are the monitors? The monitors are in the local community. Most instances we
will try to find somebody proximate to the doctor. Sometimes that‟s not that easy
because it‟s a really specialized practice and there‟s two of them in 150 miles, or they
hate each other. Sometimes it takes us a little bit longer to find a monitor because it has
to be appropriate.

So what we do with the monitors is we‟re going to go through a background check on

them. We‟re going to make sure they have nothing that is going to embarrass the Board
or Affiliated Monitors. When we‟ve identified that person or persons, sometimes I need a
team of people depending on the case, when we‟ve done that we do the background
check and then we submit their name for approval to the Board.

Once that approval is given then we go through a training process with the monitors. We
actually train them on how to be a monitor. That‟s very important. I think that‟s one of the
things that distinguishes Affiliated is the people that we are working with as monitors,
they have a monitor and they know what we‟re looking for.

So what we do is we create a checklist for them. It‟s more of a roadmap if you will that
says to them, “This is what the court order said. These are the things we need to
address.” So when they go into an office if you‟re doing a chart review is they‟re looking
at very specific things that we ask. It might be filing of the chart. It might be one
particular element of the charting that you found in your order of treatment plans, so let‟s
look specifically for treatment plans.

The monitor then takes that checklist, goes into the office, does their auditing of
whatever they are doing. They have a discussion or interview with the practitioner,
maybe make a few recommendations. Then they give us back basically the checklist.

I notice now from experience as an attorney and in running the company that most
doctors don‟t like to write reports and they‟re not very good at it because sometimes
they‟re looking at not so much what the Board needs but what as a clinician they need.
So what we do is we have professional writers, some people who have worked as
attorneys for Boards, some people who have been executive directors for Boards, some
who have worked for insurance companies. What they do is they take that checklist and
they write it into prose.

So they are taking the data and putting it into prose so the Board can understand what
was done. Then we send it back to the monitor for their approval, corrections if there‟s
anything we didn‟t understand, if there‟s questions. Once we have their blessing then we
send it off to the Board.

We don‟t make any determinations as to the frequency of going into an office, the length
of the monitoring. That‟s really all your call. We just do what you ask. We create what I
call a triangular relationship between the Board, the license holder, and Affiliated
Monitors. So the Board issues an order or term of probation with the practitioner. The
practitioner then enters into a contract with Affiliated Monitors….

We are a free service to the government. We haven‟t taken one penny from any
government agency that we‟ve worked with as the people who have the license are the
ones who pay for our services. Let‟s see, what else do I want to tell you about
monitoring?

I don‟t know if you‟ve seen our reports, but they‟re detailed. We‟ll tell you the
methodology how we got where we did. We‟ll answer those specific things that have
been highlighted in the order. Often times there are comments. The doctor is
cooperative. They wouldn‟t help us do this. They wouldn‟t do that. Or whatever it is that‟s
going on, we‟re going to report about that.

The other thing we do in our reports is if appropriate, we‟ll make recommendations

because really, we see things. So we‟ll make a series of recommendations. Sometimes
it‟s quality of care issues, but sometimes it‟s best practices. I was just talking to Lisa
about that. One of the things we‟re learning as we go out there is to distinguish between
a best practice recommendation and a quality of care recommendation. We want to be
more careful about that. I believe that‟s important for the Board to know. Sometimes we
see things and the doctor is really doing okay, but just a little tweak here or there as a
matter of best practices could make them even better.

So that‟s…. We‟re not presenting that to the Board as a recommendation you should
take disciplinary action. It‟s really an improvement of either their quality of care or the
charting, or whatever it is….

The monitor goes on as long as you tell us to. What some states are doing now—it‟s
almost a carrot kind of thing for the practitioner—they‟re saying, let‟s do more intensive
monitoring up front, like in monthly, and then after a period of time let‟s say the
monitoring is going to go on for two, three, four, five years. If you‟re doing well after that
first year, let‟s say the first year it was monthly and you‟ve gotten good reports, then it
might taper down in terms of the intensity. So maybe you can do it now quarterly if
they‟re getting good reports. Then maybe after the fourth year it could be every six
months, or one more time that last time.

Male: What kinds of cases do you monitor?

Mr. DiCianni: The kinds of cases that we are monitoring really depends on what the
Board is looking for. We monitor boundary cases. I‟ll tell you about how we do that in a
moment. We‟re doing patient solicitation cases. We‟re doing record keeping, billing,
coding, insurance fraud cases. We‟re either in a network on Medicaid/Medicare fraud
cases. We are there saying, look, you need a monitor to do a compliance program. So
we do those types of cases. It almost runs the gamut, critical skills issues come up as
well. It almost runs the gamut of the kinds of things the Board is faced with. But you
made the determination as to using a monitor.

Female: I can see where monitoring intensely at the beginning could be very helpful for
some issues.... When somebody is monitored over quite a long period of time I could
imagine there would be a dependency upon the monitor to catch the errors, to jog a
physician‟s memory.

I would think you would want something intense in the beginning and then a sort of let go
period. Then there‟s probably some issues where the monitor, and this is my question,
does the monitor ever come to you and say, “This person is uneducable in terms of
social relationships and can‟t get the boundary thing no matter what you say.” Does that
ever happen? Does that come back to the Board?

Mr. DiCianni: It certainly does. We‟ve reported those kinds of things when they occur.
They don‟t occur that frequently. The success rate that we‟re experiencing, again this is
with all sorts of Boards, is about 90-95% success. The reason why is obviously they are
paying for this. So they are accepting the monitor to come in. They know we‟re coming
in. In certain cases we‟ll go in unannounced because they‟ve got to be on their toes
because we could come in at any time. So it‟s really to their advantage to do well.

The small percentage of cases that fail are sometimes there‟s nothing that anybody
could do…. For example, we were monitoring a doctor who pled guilty to prescribing
steroids to athletes…. So we‟re monitoring this fellow every month with all the scripts, we
have to look at [everything]. He works in a hospital as well so we have to go to the
hospital to see what he‟s doing....

As we‟re looking at the charts we‟re saying, he missed this. A diabetic patient. He
missed him potentially having a heart attack. It was just like he‟s missing things he
should have been seeing. So we had to go outside the monitoring order because the
monitors were seeing things. We had to report back to the Board. So the Board has now
ordered him to go through a full assessment as to competence. He‟s suspended. Been
practicing 36 years. That has happened. So I think that answers your question. If we‟re
seeing that we have to report that.

[ED. While Affiliated Monitors gets instructions for the Board on what to review, it
appears that once involved, they can look at anything.]

The way we have created Affiliated Monitors is independent. We are not the Board‟s
investigator, nor are we the advocate for the license holder. We put these principles into
place that say, “Are you doing the things you said you would do in that order or
agreement or are you not doing the things you said you would not do in the order?” So
it‟s sort of a different concept.

As I said, with the monitor training, and I think this is an important distinction for some,
the monitor knows they can‟t take anything of value. Don‟t offer the monitor anything.
That‟s going to get reported to the Board. That check for $5,000, don‟t do it. It‟s going to
get reported to the Board....

Male: You said you get some local monitoring people. Would the [issues always allow
that?]

Mr. DiCianni: Sometimes it‟s difficult. I know I‟ve got this cardiologist case in which the
Board wants us to do very specific procedures. It‟s an international cardiologist who
does this thing. It‟s really hard sometimes to find somebody. So it takes a little bit longer.

There have been instances where we have to go outside of the local community.
Sometimes they want somebody from out of the state. But we really do our very best to
find the best practitioners to serve as the monitors. That‟s really important to us. So we
have a wonderful network of monitors.

….

Mr. DiCianni: That‟s monitoring in a nutshell. We do three other things. We do what I

call best practice programs. We do compliance programs which are becoming required
in a lot of regulatory schemes…. For example, in Medicaid fraud cases you have to have
a compliance program.

A compliance program basically is best practices. What are the best practices under that
state‟s requirements or under the regulations under the Medicaid standards, Medicare
standards, whatever it is. It may be a Blue Cross/Blue Shield contractual standard. Best
practices program that we do, and there are a lot of attorneys that will put together these
compliance programs. Ours is a little bit different.

What we do is go into an office and do an audit. We‟re going to look at not only charts,
but we‟re going to look at office systems. We‟ve done that before, I don‟t know if we‟ve
done it like that for you, but we‟ve done that where somebody is having complaints again
and again and again. This time it‟s charts. This week it‟s that. They didn‟t respond to a
subpoena. They didn‟t give somebody their records. All sorts of things.

The Board is saying, something is going on here. So the Board has asked us either
preliminarily or with an agreement of counsel to go ahead and do an audit and a
compliance program, but we‟ll do the audit first.

So we look at the office systems. Electronic records, what are they doing it in? Hiring
practices. Hiring their friends, people who have no experience. They become the office
manager. You see those kinds of things. So we do an audit. We then do this compliance
program which is a very detailed best practices program, with regulatory requirements
written in laymen‟s terms. It‟s not just written for the owner, it‟s written for the entire staff.

I‟ll tell you, having done many of these now, the staff sometimes is working—I just want
to say this in the most polite way, but sometimes they don‟t understand that they‟re
working under the privilege of a license. They don‟t understand that there‟s a regulatory
scheme that they have to meet because it‟s the doctor‟s license that‟s at stake if they
don‟t do it. They don‟t understand that. They think it‟s a job. Why is it this way? They
always did it this way and that‟s the way it‟s always done.

We do these compliance programs, they are tailored to everybody on the staff We do it

in a very informal setting like this so everyone is very comfortable. The things that come
out in the training session are unbelievable. It‟s the first time that the staff has been
comfortable enough to be able to express something like “this happened last week.” You
see those kinds of things. But it‟s all in the spirit of improving the practice….

One of the things we have in a compliance program is a hotline. It‟s a reporting

hotline…. The OIG standards of small practice require that you have a place where
patients, employees, vendors, could call and do it anonymously.

I know we just had that discussion, but as a result of that requirement Affiliated Monitors
has been providing a hotline service for the last couple of years. It‟s a 24 hour 7 day a
week service with interpreters, all that kind of stuff. What we do is we create a database
for those people who sign up for it. Boards are using it so if someone wants to complain,
and they‟re uncomfortable, they can call either the hotline or they can call the Board. We
put up posters in people‟s offices that say that.

The hotline, we follow the call through conclusion so there‟s some kind of resolution….
If it‟s an emergency about a patient‟s safety we call the Board.

The assessments that we do for some Boards is not like a PACE assessment. It‟s not
this full-blown assessment. But it might be a situation where the Board wants at least
some kind of indication this person knows what they‟re doing. So the kind of
assessments we have been doing include chart reviews.

It includes what I call an over-the-shoulder types of observations where we go into that

doctor‟s offices and we‟ll watch ten patient interactions or a particular procedure if that‟s
the thing the Board is concerned about. Then we do an interview with the doctor that
talks them down to the charts we looked at, the observations that we‟ve made. So we‟ve
been doing that…. The thing we like about them is when they are in the office you can
see much more than a flat chart. You know what I mean? You just get to see people in
their interactions with staff and with patients.

We have a case in another state, I can‟t tell you which one it was because I‟m blocking
on it. It was just a strange¸ the part that was really the assessment. I just noticed that the
doctor could not look the patient in the eye. It was this very, everything was like off. For
like ten patient interactions. There was never any real contact. It was more of a
communications kind of thing. So we made some recommendations about it. The point
was we would not have picked that up unless you are there and you saw that. That was
just a little bit strange. We‟ve handled those kinds of cases.

[Great detail about monitoring chaperones: logs, verification logs, patient sign offs,
monthly surveys about cooperation etc., for years.]

Male: What are your fees? How do you charge?

Mr. DiCianni: The fees depend on the skill set of the monitor. I want to say they‟re
generally for, a physician monitoring a physician it might be about $430, it‟s in that
range, an hour. Sometimes it‟s a billing and coding case so I can use a billing and
coding professional so it might be $200 an hour. The external monitor I use is usually
like an RN, so it might be $300 an hour. It really varies on the skill set. The cost variable
is duration, frequency, and what we have to do.

Again, some of you heard me tell the story I‟ve got some cases in some states where I‟m
monitoring 100% of the practitioner‟s charts every month. That‟s very expensive. If it‟s a
10 chart review on a quarterly basis then obviously the cost could be less. It‟s also going
to depend on the charts. There are some charts there‟s nothing to them. If you‟re doing
10 they could be there an hour. So it varies. I hope that answers the question.

Male: Our Board has made the determination for the physician to have monitoring by a
chaperone or a female chaperone, do they all have to go through this Affiliated
Monitoring to get the chaperone, or can we only require verification? How much do you
charge for that?

Mr. DiCianni: It‟s about $300 a month.

Male: The doctor is employing the chaperones. They‟re his employees generally. So the
only thing they have to pay for is the external monitor. So it‟s not as expensive as you
would think.
[More discussion on chaperones.]

Physician Assessment and Clinical Education (PACE) program

Dr. David Bazzo and Mr. Peter Boal presented

Mr. Boal: I‟m a lay person. I went to UCSD for my undergraduate studies. I studied in
animal physiology and neuroscience. I had intentions of going to medical school but as a
freshman I stumbled onto a job at the PACE program, and 13 years later here I am. I‟ve
kind of worked the ranks throughout my career at UCSD at the PACE program from
student worker to a case manager for 7 or 8 years. Then I got into kind of middle
management overseeing like the assessment program and being involved in our
physician monitoring program, now the associate director of all operations of the
program. I‟ve worked here with Dr. Bazzo for well over 13 years.

Dr. Bazzo: I‟m a Medical Science Associate Director. I also oversee all our continuing
professional development courses. So we are I think the second and third oldest
employees.... By training I am a family physician. I also have a certificate of qualification
in sports medicine.

I am a full professor at UC San Diego. I split my time. I am not full time at PACE. I‟m
about 30% time at Pace. I have been that way for varying between 30-40% at PACE for
the last 12 years. I‟m in my 12th year there at PACE. I also run one of the courses in the
medical school…. Then I also teach in the residency program, family medicine residency
and the sports medicine fellowships. So I get to see education at all different levels
which is kind of nice when you‟re talking about the entire continuum.

Male: Lisa, why don‟t you give us a kind of brief overview.

Ms. Wynn: Thank you very much. We‟re very grateful to Dr. Bazzo and Peter for coming
and spending some time with us today giving the Board an overview of what PACE
does. By way of background perhaps we should have done this before this morning too.
Speaking to the Board today are three different contractors who perform roles for the
Board in three different areas....

The Board will many times send a physician to a PACE program either through a Board
order or sometimes as part of our investigative process we‟ll ask a physician through an
interim order to get some kind of evaluation. So they‟ll talk more about that. Then of
course Dr. Sucher is going to speak to us about the monitoring program, the monitor
after care program and the role of that program with the physicians through addiction or
chemical or substance abuse. That‟s a very, very in a nutshell kind of where we‟re at.

Dr. Bazzo: Peter and I are going to tag team a little bit here. Since he has been one of
the case managers he‟s run the assessment program and is now the chief administrator
at PACE. He‟s going to talk a little bit more about the assessment and I‟ll sort of interject
along the way. Then I‟ll talk more about the educational programs.

We do have Power Point slides. They will be made available to anyone who wishes....
Mr. Boal: PACE was started in 1996 when the California medical board decided it would
be good if we had a way to kind of assess these doctors before we rule....

So what we really specialize in¸ the flagship of PACE, is providing competency

assessment. We find out if physicians are safe to practice. So far we‟ve done over 1,100
competency assessments since 1996. We‟ve also delivered educational services. We
have a number of different CME courses which we call CPD or continuing professional
development. Over 2,500 participants. We‟ve been around for a little while.

This is kind of a distribution of who we‟ve received any type of referral from. So there‟s
just about five or six states here that we haven‟t received any referrals from…. Our
mission statement is available on our website, http://www.paceprogram.ucsd.edu/.

Essentially we‟re dedicated to protecting the healthcare, protecting the lives of the
citizens in California and beyond. We are trying to just do what‟s best for the end user in
the healthcare system. So along the way we have developed a number of different
relationships that have proven helpful to us in our goal and also in making us a strong
program from the standpoint of using tools that have been validated in getting people
that have also done this in the past. They can share new information with us.

First and foremost, the medical Boards play a large role in what we do. We get most of
our business from the medical Boards. We‟ve been with I think Arizona since about
2000. We thank you so much for that and all the referrals. We appreciate being able to
work collaboratively with you and into the future as well.

We‟ve been involved with the Federation of State Medical Boards, the National Board of
Medical Examiners, one of our partners both in research and also in terms of tools for
assessment. They provide us with a number of standardized tests that we use and
administer to our doctors. Also for the Medical Association in California.

But then because there is no site, there‟s no standards for assessment programs in this
country…. There are just a handful of programs like ours. We work collaboratively both
with the programs in the United States and those outside of the United States,
specifically Canada and also some of the programs in the United Kingdom and Australia.
We work together to kind of share resources and share ideas to kind of further this
science. Those of you, the Canadians and Europeans and Australians are ahead of us
because of the socialized medicine and the integration of the Board in doing the
assessment programs themselves. They have the ability to kind of fulfill things.

Dr. Bazzo: Their liability laws are such that there is a lot more flexibility in how invasive
they can be given the practice of that specific physician‟s practice of medicine. I gave an
example from Australia. They‟ll actually take two physicians, send them to the indexed
doctor‟s practice and sit there for two or three days or whatever it takes to directly
observe. Their liability issues are such that if they see an issue or a patient safety
problem they are allowed to dismiss that physician from the care, take over the care of
that patient and not incur any additional liability. They‟re immune. So again, very
different from the situation that we have currently.

I think another important thing is to really understand these are working relationships
and partnerships. Like you heard earlier, PACE is an independent entity. We are not
beholden to medical Boards and we are not beholden to the physician groups. We really
respect and appreciate that position to be able to give an objective description of what
we observe and what we test on. So we don‟t feel the need to have to give a certain
opinion on a certain case because that pressure is just not there for us, which as you
can appreciate is very important.

Mr. Boal: So I just mentioned this a minute ago. Most of the doctors who come to PACE
were referred by the medical Board. About 75% of all our referrals are from a medical
Board. The other 25% mostly come from a hospital or medical group that occasionally
will have a doctor who is kind of coming pre-emptive to some hospital or medical Board
action. They are referred by an attorney. We don‟t always get the details of why they‟re
there. Usually it‟s because of a hospital or medical Board action. Rarely do you get a
doctor off the street that says, “I want to see if I‟m doing a good job. I want to come over
there.” We don‟t see that yet.

[Laughter]

Not yet. Not yet. Zero would be the number. When we are doing our evaluations we are
trying to make sure that they are globally competent. We use the six core competencies
which were defined by the accreditation counsel for graduate medical education and the
American Board of medical specialties: patient care, medical knowledge, practice-based
learning and improvement, interpersonal and communication skills, professionalism, and
systems-based practice. These are used by residency programs and medical schools
across the country in determining the competency of their trainees.

Dr. Bazzo: Have people seen this before? This is an important concept because this is
really a sea change in medicine and how—we‟re talking about the continuing of
education from medical student to resident to practicing physician.

This is now the national standard by which all physicians should be judged. They need
to be competent in each and every one of those areas in order to be fully competent. So
if I‟m 5 out of 6 I‟m not competent. It‟s really important that you have an evaluation that
looks at each of those separate areas because this is now the United States‟ definition of
competency. We kind of stole it from the Canadians…. Canada only has five descriptors.
We have six. We added one.

Mr. Boal: Also in the packets that we have available is two documents. One is called
“The Rationale of the PACE Program.” In that also is an article that came out in
Academic Medicine just over a year ago. It shows what the different parts of our
assessment measures and what part of the competency it‟s associated with. So you can
see this little matrix that shows how we measure each of the six core competencies.

But I think another important thing for everyone to understand here is when you‟re
talking about competence it‟s about that they have the ability to do something, but
performing it is when they‟re actually doing it in practice. So most of our assessment is
focusing on the competence, that they have the prerequisite skills to do something and
they can in a kind of simulated environment show us that they know how to do that thing.

But the real only way to measure performance is if you were to go and actually after the
fact look at like a chart review or do something to measure an outcome. Even if you‟re
standing right there next to the person and watching them you could argue that that‟s not
true performance because they‟re behaving in a different manner because you‟re
standing there next to them. Does that make sense?

Dr. Bazzo: The other important concept here is if you are not competent you cannot
perform. If you are competent you have the ability to perform but if there is
unprofessional conduct or poor professionalism, even though you have the competence
to perform you choose not to perform.

Male: So you go out in the field and…

Dr. Bazzo: Currently only one of our programs does that. We‟ll talk about that a little bit
later. It is a type of mentoring monitoring program. With our anger management we have
a follow up. Again, we‟re doing a competence assessment and performance assessment
because we use simulation, actually have them perform. I think the plan is anytime you
incur an observation, so anytime I‟m watching you, that will change the outcome. We just
don‟t have the systems in place now to truly measure all performance. We can do some,
but not all.

Mr. Boal: Right. So if a doctor comes to the PACE program and demonstrates
competence that doesn‟t mean when he goes back into his office he‟s going to perform
competently.

Dr. Schneider: It‟s kind of like the difference of how someone might drive when they‟re
doing a driving test versus how they drive all the time.

They will know to follow the law, they just might not choose to.

[Laughter]

Male: Is there something we need to know?

[Laughter]

Mr. Boal: That‟s a very good analogy. That‟s one of the reasons our assessment is so
broad and so global, because we recognize that there are a lot of different things, a lot of
different factors that could affect how a physician performs his or her practice, or why
they came to us in the first place. It‟s not necessarily just a clinical knowledge deficit that
caused the problem in their practice. That could be part of it. But maybe they have
something in their personal life that‟s also affecting them. So we ask a lot of questions
from them. We do a lot of different batteries which I‟ll get into shortly.

So a couple of different points to make that I think is important for everyone to

understand about a good assessment program is it‟s obviously critical that they‟re fair
and unbiased and objective. That‟s what we are. We have no, you know, horse in the
race. We just want to get to the truth of the matter. We want to find out to our ability
whether this doctor is practicing safely or not or is competent to practice safely or not.
We need many pieces of data to do this.

So we have before they even come there we have them filling out forms. When they‟re
here they take tons of different types of tests. They interact with a number of different
specialties. These are a blend of objective tests like the multiple choice kind of
standardized test and, you know an oral clinical exam which even though it can be
somewhat standardized it‟s still a subjective exam and you have another physician rating
another physician‟s performance on something. But this has been studied in the
literature and it‟s found that this actually creates a stronger assessment. So we have a
judicious blend of that kind of objective and subjective testing measures.

And what we like to do is liken this to a pointillist painting. Each piece of data that we get
in the assessment would be like a point on a canvas. If you just have a few points you
don‟t really have a picture. But if you get enough pieces of the data and you kind of
stand back a whole picture develops. That‟s what we like to think of when we‟re doing a
global assessment like we do.

So some of the other things that we like to use is it‟s important to have good qualified
judges. Almost all of our faculty are clinical instructors and educators at UCSD. They‟re
involved with the training, assessment of medical students, residents and fellows. So this
is kind of just taking the skills that they‟re already using for that level of training and
taking it to the next level which is the doctor in practice.

We have a two-part structure at PACE. The first part is a two-day assessment. I‟ll get
into the parts of that later. Then the second part, phase two, is a five day observational
program on site at one of UCSD‟s hospitals or satellite clinics. But we find that both are
really important to get the whole global picture because just having them in a clinic really
gives you a lot of information that you may not get to see when you‟re looking at
standardized tests and some of the other more objective measures that we get in Phase
I. Having a partnership with again, a program like the [??] helps give us some strong
standardized tests.

The thing that really brings our assessment together is something that we do once a
week called our case conference. We usually have a minimum of two or three physicians
who generally have a couple of family physicians, …. Then we‟ll have a surgeon who‟s
there as well. On a case by case basis we‟ll bring in another specialist to review the
results.

But the point of the case conference is to take all the results that we gathered in Phase I
or Phase II and try to make sense of it all because there‟s a lot of different data.
Sometimes they say different things. What we‟re trying to do is get to the bottom of all
that information and see what we really know about this doctor, what we can really
report on and what they may need to do as next steps.

Dr. Bazzo: This becomes kind of the consensus of experts. You know, we have people
who have all been trained on assessment and what we do is we have all these little paint
dots that are literally spread on a central table and passed around once again. There‟s
three times the same day it‟s passed around so it‟s looked at on three separate
occasions that are separated by time. People review each of those independent pieces
of data and then at the end we have a discussion, a conversation.

We try to create this painting, this idea of we have all these points of information. What
does this really tell us about the competency of this physician? That‟s the idea behind it
is then you have discourse. There is very professional, collegial disagreements at times.
That‟s important to have that so all opinions get expressed so that you can try to reach
that what‟s considered the truth about the ultimate competence.
Mr. Boal: Right. So we measure competence and to some extent performance. It‟s not
the highest level of performance as we mentioned. That in the United States we haven‟t
figured out how we can really do that yet. But doing a chart review would be one form of
that. It‟s kind of lower level, but it is very helpful and it is again part of this global picture
that we develop. Again we use all of the six—we cover all the six core competencies.

One thing that we try to do is get feedback. We continually ask for feedback from the
people who use our services. If we‟re not meeting your needs what can we do to deliver
something better. We ask this of the participants too. We are continually evaluating
ourselves and hopefully progressing too. I hope in the next couple of years we‟ll be
moving in another direction as well.

UCSD opened up this great new educational center that has a huge number of
assimilations available, standardized patient training facilities and so on. We‟re looking
forward to that in the future. We‟ll give you an update on that probably in a couple of
years.

So again, with respect to Phase I and Phase II, we see them as complementary and
necessary to make a full and kind of informed final judgment. Because the stakes are so
high for the assessment program and a failing performance for a physician could
ultimately lead to a suspension or a restriction of privileges probably in the very least, we
want to make sure that we get it right. We want to have as many pieces of data to help
support our decisions.

Occasionally we will find after Phase I that there is enough information about a doctor
that is a danger because they‟ve had some kind of physical or health problem such as a
cognitive deficit where it‟s obvious that they are an immediate risk to their patients. We‟ll
notify the Board or hospital or whomever. But usually speaking we need to get both sets
of data because we need that blend of the subjective and objective information to feel
comfortable with making a final decision.

Every once in a blue moon despite that it‟s seven days long— we get just reams of data,
we don‟t always feel like we have enough information because their performance is so
variable that it doesn‟t give us a uniform, consistent picture. So we may occasionally
need to even have them come back for an additional week or do some type of additional
testing or education to kind of make a final decision. That doesn‟t happen very often.

I‟ve kind of alluded to this already, so Phase I is the two-day assessment that happens
onsite in our offices. The five-day Phase II happens at a clinical facility, either a hospital
or outpatient clinic at UCSD. Just briefly I‟ll kind of hit on the points briefly. So the
assessment is broad. Those are mini components.

The first thing we want to do when a doctor applies is try to get a practice profile from
them. So they will fill out some questionnaires that we have for them. We‟ll read the
order that the Board provides to us. We will also then have them do a 360. That‟s a
process that we send out to an independent kind of third party out of Florida.

Dr. Bazzo: Are people familiar with the 360 degree evaluation? Maybe just a brief
description. It‟s a very useful tool. It‟s done with security and privacy. The physician fills
out a set of, completes a set of questions on themselves and how they perceive. This is
typically around behavioral type of interactions and issues. Then eight colleagues
complete an evaluation on the doctor. Eight staff members…

Mr. Boal: It could be greater than that.

Dr. Bazzo: It could be more than eight. Eight is kind of a minimum number, complete an
evaluation. Then in some cases up to 25 or more patients can then fill out an evaluation.
These are all sent directly to the central processing agency. They will put a report
together that then comes to PACE that paints a picture and compares the overall scores
to the doctor‟s self-awareness of themselves. It‟s just a fantastic tool.

[ED: Based on later remarks, it appears that the doctor is required to turn over patients‟
names and contact information so PACE can ask them to provide an evaluation.

Mr. Boal: The doctor gets a copy too. The goal of this is really not to be a punitive one,
but to really learn and get a sense of how others view them in their practice. It is very
valuable in that sense. Occasionally you‟ll see these comments like, “Oh my gosh, the
doctor, I wish he wouldn‟t yell at me. I wish he wouldn‟t do all these things.” Then we
say, “Okay, well now we know something else about you,” and you‟re going to end up
having to do some kind of coaching program to deal with these other issues. So it is
illuminating as well.

So once we have—so once we have all the information about the doctor in place then
we‟ll go ahead and schedule their assessment. The assessment is tailored to their
specialty. We line up the appropriate faculty for that.

But every doctor who comes to PACE will get a screening of their physical and mental
health. I can‟t begin to tell you how important this is. I think even though we‟re not doing
an invasive physical exam, we find all the time things about doctors that they don‟t know
about themselves that I think is a good patient care protector as well, especially the
cognitive screening test.

Dr. Bazzo: Yeah, I‟d like to make two comments on those particular items. This is
particularly important. If you are performing a competency assessment on someone they
have to be healthy before you can do that appropriately. But if there‟s a mental health
issue, a substance abuse issue, a physical health issue, then we‟ll just stop the
assessment, have them get that taken care of and then come back to see us. Because
an assessment when they‟re impaired at some level is not a true assessment of their
skills. But it also tells us that they certainly may not be able to perform at a level as well.

That‟s true not only for the physical and mental health screening but for the cognitive
screening. We use a screening test that‟s called micro cog. That is a nice broad based
test that really is a screening test. If we find there are abnormalities on that we‟ll actually
do a full one-day neuropsychiatric evaluation on the participant. That‟s an all-day test.

Male: How often do you find somebody has a mental health, substance abuse or
dependency problem and they can‟t complete the test?

Mr. Boal: The substance abuse thing we don‟t see very often. They always try to hide it
from us. However we have seen probably at least three or four in the past couple of
years where we suspected it and we said, “We don‟t have hard evidence but we suspect
that they may be impaired from some kind of use of illicit drugs or alcohol.” They turned
out to be true in a couple of those cases. But the cognitive screening test, probably
about 15-20% of the doctors who take that don‟t do well.

The test is good, it‟s sensitive but not specific. So we get unfortunately a few number of
false positives, but in the end it‟s worth it because they end up having to take an extra
test, but it‟s to rule out any kind of serious problem. That‟s important. Probably about half
of those who end up going through it do have some kind of cognitive impairment.

Dr. Bazzo: As an example, I‟ve done these assessments along the way. We had a
physician who I was doing a history and physical exam on him and he happened to have
been in a car accident and sustained some musculoskeletal injuries. I started talking to
him about the car accident and it comes to pass during his history he tells me he fell
asleep in the middle of the day on the freeway.

So we start evaluating this more and more and it turns out the guy has obstructive sleep
apnea. We questioned further and he‟s fallen asleep on patients. This had not been
picked up heretofore. So these are some of the issues. Luckily that has a happier ending
because he let me…got his issue taken care of, came back and re-evaluated and
actually did fine.

It gets almost to the ridiculous. We‟ve had physicians who have had strokes and come in
and literally—this is what happened. The doctor was walking down the hallway bumping
into the wall as they were walking down the hallway. Very obvious right? That‟s
something that pretty much anyone could look at and figure out. But no one had
mentioned this to this physician at this hospital.

He was referred, he was a neurologist who was doing electromyographic studies. Yeah,
a neurologist of all things. No one said, “Hey, you had a stroke and you‟re still not quite
right.” They sent him to our program. We said obviously there are some deficits here.
Unfortunately we have many, many stories like that unfortunately.

Mr. Boal: Quickly just wrapping up the different parts of Phase I. We use those series of
different exams that we purchased from the National Board of Medical Examiners that
we try to suit to their specialty. They‟ve got a menu of like 30 exams. We‟ll choose the
best three or four that match up with their specialty. It‟s not perfect, I‟ll be honest with
you. The more sub-specialized you get the more irrelevant standardized tests become.

You could have a doctor by the 35th year of his practice where he‟s only doing one or
two things. If he‟s just doing this one type of noninvasive cardiology, no there‟s not a
standardized test in the world that exists that‟s really going to give you great information.
But it‟s still an undifferentiated medical license. It‟s still reasonable for them to have
some kind of basic understanding. But we understand that we‟re not expecting someone
who is so sub-specialized to be you know, performing at the 90th percentile on some of
these tests. So we do take that into consideration and do our best to make the
assessment tailor to exactly to their practice.

Then one of the other things we do is watch each and every doctor do a physical exam
on a mock patient. This is extremely valuable for us to look at their interpersonal skills
and to see that they have a good ability to do a detailed history and physical on the
patient. We give them notice. Even though it‟s not a specialty-specific exam, we let them
know ahead of time you‟re going to be expected to do a complete history and physical.
Most of them take it seriously, but some of them don‟t. That‟s unfortunate.

Dr. Bazzo: Then the cost for Phase I is $8500 for just the two days. We‟ll get to the cost
of the Phase II because it varies on specialty.

Mr. Boal: So just to give you a sense for how long it takes doctors that are going to
come through PACE, I wanted to let you know so if you are referring someone you‟ll get
an idea of when you can expect things. The enrollment process is totally on the doctor,
on average anywhere from two to four weeks. It depends on their motivation. I‟ll show
you a statistic here in a minute. But the shortest it‟s been from someone from Arizona
was four days. The longest was 101 days.

So as far as scheduling the assessment once they‟re enrolled it takes usually about
three to four weeks. We do have a service offer for expedited scheduling for $1,000.
Most doctors don‟t need this because we‟re pretty quick about getting them scheduled.
We send out, pretty much 90% of our reports will come out between 30-60 days. Usually
about 45. I‟ll show you what the averages look like for Arizona referred physicians.

This is the first column there is the metric, average, medium, longest and shortest. Then
there‟s the number of days to enroll, number of days from enrollment to Phase I and
number of days from Phase I to report. Under that number of days to enroll I‟ve put in
red the median because the longest made the average so high and it wasn‟t reasonable.
She—there was an outlier for whatever reason. Maybe she wasn‟t forced to come and
just kind of applied early. I don‟t know what the real reason was. But on average it‟s
really closer to about three weeks for a doctor to enroll in PACE.

They have a series of forms to fill out. They have to get charts to us. They have to come
up with the money. It‟s reasonable for them to take about two to three weeks. I think
Arizona‟s doctors are probably about on average with any doctors that apply to PACE.

Now number of days from enrollment to Phase I, that‟s from the time they have officially
enrolled to the start date of their assessment. Part of this is on us because we have to
get them scheduled, but part of it is on them to say, “Hey, I‟m ready to be scheduled.”

Dr. Bazzo: Just to clarify, enrollment means that they have their charts in to us. They
have their payment into us, and they have all of the pre-forms into us. Once we have
that then we will schedule their assessment.

Mr. Boal: I just took a look at one of the recent consent orders for a doctor to come here.
I think it said 60 days to enroll and then six months to complete. Does that sound
reasonable? Or maybe it‟s 30 days to enroll, something like that. But that‟s totally
reasonable.

Male: That includes the 360…?

Mr. Boal: Yeah, the 360 it starts the minute that we get their application actually so that
process gets going. Then so number of days to Phase I again, that person who took 101
days to enroll took 174 days to come. That wasn‟t on us so I wanted to make sure I
could show you in red what the median was, which was 27.
The average was not 41 days. It‟s about 4 weeks from the time, and this is what we‟ll tell
everyone over the phone. It takes us 3-4 weeks to get you scheduled. Now the last
column, that‟s all us. That‟s how long it takes us on average to get a report out. The
significant number wouldn‟t be the average because any outliers are our fault. But we do
our best to try to get it around 45 days. You can see the number is 47. You can look at
the bottom on the shortest, it shows 27.

The reality is it takes us about 3-4 weeks just to gather our results back from the
assessment. So 27 was a miracle. I don‟t know how we even did that. But we did. But
you can see the longest was 67 days. That‟s certainly not acceptable. We try our best to
avoid that happening.

But generally speaking it‟s going to take us from the time we get the results we have to
have a case conference to review all that information and then we write a report that has
a detailed three-stage editing process. The case manager who was working with this
doctor writes a first draft. Then I edit it. Then Dr. Norcross, the director edits it. Then it
goes through one final read over. So that actually does end up taking another like 7-10
days sometimes just for the editing. But that‟s about what it‟s going to look like to get a
report to you. We want to make sure we dot our i‟s and cross our t‟s.

So Phase II, Phase II is the five-day onsite clinical education portion. Again, it‟s not
seeing as any deficiency in Phase I why they‟re coming back, but what we do try to do is
take the results, take the information that we learn about the doctor in Phase I and use it
to learn more about them in Phase II. So where Phase I might have information that it‟s
got standardized tests that aren‟t perfect to the doctor‟s practice, we can come really
close to mirroring their practice in Phase II and set them up with faculty that are doing
very similar things to them. Again, the faculty that we use are educators and evaluators
at UCSD and they provide us with information about the doctor that they saw while they
were there.

Again, we look at the six competencies, are looking at their communication skills, their
knowledge, their ability to access evidence-based medicine and so on. The doctors
themselves are required to do some things while they‟re there and keep a detailed log of
every patient they see. They are required to do literature researches. We want to make
sure that if a problem or recurrent problem comes up in their practice they know what to
do about it.

Doctors that come to the PACE program in general aren‟t that computer savvy. We try to
get them some skills and abilities to look things up. But in today‟s age that can be a
weakness in your clinical practice so we try to help them with that. But we want to make
sure that regardless of the way they look up information, if they‟ve got a problem they
don‟t know how to solve we want to make sure they have the means to do it. It‟s not just
well I‟m just going to do the consult. If it‟s something that you should reasonably be
expected to handle in your practice you should be able to look that up.

Dr. Bazzo: So they are shoulder to shoulder with the faculty that they‟ve been assigned
to in their specialty. When they are seeing a patient liability wise they‟re not allowed to
touch or independently care for the patient, but they are there and the discourse
happens that they are there they can certainly talk to the patient. They can get history.
The faculty may say, “So what do you think is going on here?” What we‟re getting at
there is medical decision making of an undifferentiated patient, which is really the crux.
We want to sort of be sure that they are able to have a reasonable and logical approach
to patient care which is something that always you can gain from a test.

So this is really an important type of real life clinical situation. They go to the operating
room, they get in their scrubs and they are asked, “How would you manage this
particular complication if this came up?” “How would you—what would you do for this
patient?” It‟s almost, for those of us who went through medical education it‟s like pimping
a little bit. But it‟s in an informative way. It‟s done very professionally, collegially. So we
look at this as a formative assessment. We‟re assessing their knowledge and seeing
where any gaps might exist. But we‟re also teaching them during this time as well to try
to improve their practice.

Mr. Boal: [It takes about 45, 48 days to get the final reports out to you.] Doctors aren‟t
the greatest at writing reports so sometimes we just have to hammer faculty a little bit to
get the information in, so it takes a few days longer for us to get the final results out to
you.

Dr. Bazzo: [The cost for Phase II varies.] For a primary care physician the fee for that
week long education is going to be $4,000. If you‟re a neurosurgeon or orthopedic
surgeon it‟s going to be $10,000. That‟s again based mostly on the faculty salary scale.
We pay our faculty to do this work. So we pay them at our rate mentoring with our
specialty fees. That‟s where the variability comes in.

Male: Does that include Phase I testing?

Dr. Bazzo: Phase I is $8500 and then it‟s an additional amount for the Phase II
based on their specialty….

Mr. Boal: So I touched on the case conference already, but what the ultimate goal after
a doctor comes from Phase II is to render a final judgment about the doctor‟s
competence. We have come up with four categories to describe that. A clear pass, a
pass with minor recommendations. That‟s where they certainly are safe to practice but
they might have an area of minor weakness like their charting for instance, which is a
common one. We may say, “You know what? You need to take some kind of course to
get your skills there.”

Then pass with major recommendations. These are the ones that worry us the most
because we feel like they cleared that bar and met minimal levels of competence, but
they need additional help. They‟re probably going to need a monitor. They may need
additional updating in their specialty. Generally speaking they need somebody working
with them going into the future because they could at any moment dip below that bar.

Then fail, that‟s unsafe to practice in our mind. We have it as a low bar, but even still
about 10-12% of the doctors that have come to PACE in the past three years fall into
that range. I can give you some statistics on Arizona doctors, just so you know we didn‟t
develop that fourth category scale until about two years ago.

Since we‟ve been working with Arizona for 10 years and there weren‟t very many
numbers to put into the four categories I just went ahead and did it on a pass/fail just so
you could get a sense of the doctors who come here. 38 doctors have taken some part
of the program. 30 of them were passed. That‟s almost 80%. Fails were 3 doctors failed.
That was only about 8%.

Of the 2 that were incomplete, they came for Phase I and we had some serious
concerns. We documented this to the Board in our report but for whatever reason they
never came back. The other 2 that are pending are doctors who are just currently right
now in the program….

Dr. Bazzo: This is really what the process of everything is. You want to get as much
data as you possibly can without being overly burdensome to everybody, including cost
to the doctor, making the Board wait too long for the report. So the struggle here is how
much is enough? You really want to err on the side of making sure people are at least
safe. That‟s our whole process is really geared toward that.

Then when we talk about the four scales, whether they fail/pass, minor recommendation,
major recommendation or fail, the two in the middle those are where the learning plan
comes in and the remediation. So we have very specific recommendations on how this
doctor can remediate to get to a higher level of practice. They may be safe, but we want
them to be practicing optimally. That‟s where the benefit comes in.

I‟m going to just briefly, I know we‟ve got just a few minutes here. I‟m going to just hit the
high points here. The PEP is the Physician Enhancement Program. This is PACE‟s
version of the monitoring program. This was developed in 2004 really as a direct
response to the California Medical Board.

You heard a story today about the medical Board said, “Go find a monitor,” to the doctor.
The doctor would go and get a friend or somebody. There were very loose criteria with
regards to that. Frankly the Medical Board of California said, “Hey, you guys do
assessment. You do remediation. Can you help us out in looking at developing a
monitoring program?”

So we took it and we ran with it a little farther than I think they may have intended
because we view this as a mentoring program really. We actually call it more of a
mentoring program, even though it is a monitoring program, because we really want to
see people optimize and enhance their skills and abilities.

So the program that we developed was based on what was available that we found in
the literature and what we felt were best practices. So we view this as our in-practice
observation if you will. Again, we don‟t have the ability to view the physician when they
are directly delivering patient care just because of the liability issues.

So what this basically involves is a site visit. The site visit in our program typically
happens twice a year, every six months. Again, we have forms that are developed that
are kind of a checklist that you go through that looks at everything from how are your
medications stored? Do you have safety practices? Do you have a thermometer in your
refrigerator? All the way to how are your charts kept? The basic office practices and
principles. Do you have policy and procedure? Do you follow HIPPA?

Then we do a chart review while we‟re there. We do a complete cover to cover chart
review. Then we do what is called a chart stimulated recall. We‟ll talk to the physician
about perhaps some of the charts we have gone through. So that happens twice a year.
Between that time there are monthly chart evaluations and phone calls. These phone
calls happen either on the telephone or some of our faculty have experimented using
Skype, so doing video conferencing over the internet.

What we do is we get approximately 7-10 charts every month that are randomly chosen
by us from a patient list that the physician gives us. We then have our faculty review that
chart note and then about an hour phone conversation happens based on the charts.

In addition to that we ask the physician to become involved in a practice improvement

project. They get to choose it, but they have to do a project to improve the quality of care
that they are delivering to their patient, whether it be a new process. If they are a primary
care physician maybe they now put up signs in their scales or in the room that say, “If
you‟re diabetic take off your socks so we can check your feet.” Something that that effect
or something to improve the process.

The reports that come out from us are quarterly because that‟s mostly what the
California Board has recommended. It‟s a typical type of quarterly report based on
monitoring. If we have recommendations for improvement we‟ll list them in there. We‟ll
share that with the physician. Interestingly enough we‟ve actually expanded this program
to other states and we have one doctor we‟re monitoring in—is it Indiana?

Mr. Boal: Iowa and Missouri. There is to be more of an educational focus because it
would just be expensive for us to send our faculty. They all work at UCSD so that was
arranged with the Board and okay with them that the chart review still happens and
there‟s a more significant focus on educational development. We actually guide them
through that and they get to select some of their own.

But just on another quick point, the cost of the program is fixed. It‟s not an hourly rate. It
varies again by specialty. Most of the doctors that we‟re doing this for are in primary care
and it‟s $8500 a year for those doctors. It goes all the way to about $30,000 per year if
you‟re like a neurosurgeon. But most of the doctors are in the kind of $8000-12,000
range per year for the program.

Dr. Bazzo: Again, we‟re in one of these type of coaching situations here, but still doing
the monitoring. What I want to talk about is our Continuing Professional Development,
CPD or CME as people are typically…so I‟ll just run through these really quick because I
want to leave time for questions.

So these are the courses we currently offer. The top one we give most people is medical
record keeping. I‟ll show you some numbers here in just a second. Second is probably
anger management and prescribing. Actually they‟re pretty close in numbers. Anger
Management and prescribing following in second. Professional boundaries would fall
into the third category. Then physician/patient communication falls into the final
category.

You see there‟s a couple of other programs. These are custom programs that was
designed out of need. Actually this PA supervision course is one the Arizona Board
asked us to develop. We have developed it and now offer it as a stand-alone course
because this is a very important topic as I think all of you know.
Other ones that we put on, again started out of a custom request. Wrong side surgery.
We had a doctor who was told by a Board order in California that they had to take a
course on how to prevent wrong side surgery. Where do you find one of those courses?
Well we created one. Because there‟s been need now we‟ve had a couple of requests…

Mr. Boal: It happened more often than never.

Dr. Bazzo: Unfortunately. This one is kind of interesting. Because of our interactions and
collaborations we have created a course that is really meant for our law students and
administrative law judges. They are in this boat as well when working with us and they
have to learn the ropes.

A lot of times ALJs don‟t have a medical background and they don‟t understand the
process of how a patient works and moves through a medical system. They are the ones
that are sitting in judgment of these cases. So we have created an educational program.
We have offered this one at least once a year and sometimes twice a year. We do it for
law students and administrative law judges. It‟s been pretty successful. We do it on the
medical error type of situations. It‟s actually quite a nice course.

These are the numbers for your state, Arizona here, that have come to our courses
since July of 2000—excuse me, July of 2002. So we have had 141 physicians. The one
we don‟t have up there is the PA course. We have one that came for that, so it should be
142.

Our programs for CPD are not traditional CPD or CME type programs. We keep the
groups as small as possible. We make them very interactive. In fact it‟s almost 100%
interactive learning. It‟s from an adult learning situation is the best way for adults and
physicians to learn. So all of our courses are really geared around this.

We have pre and post tests for all of our courses to show that there has been knowledge
improvement. They are mandated to sit in the course so they can‟t just sign in and then
go shopping or go play golf. We have them sign in at each break, at each session. If
they‟re not there they do not get a certificate that shows that they completed the course.
Fair enough. If you ordered them to be there we help them in compliance with them
being there.

Just quickly, this is some data that we‟ve looked at pre and post testing. What you will
see here is this is for our prescribing course. We have changed our test after July 2009,
so this is the test up to 2009. We had 289 participants that took pre and post-tests, so
there was a total of 588 tests. You can see that the means went from 61 pre-test to 70
post-test. Again, with a standard deviation that was significant.

The same holds true for our prescribing test that we did since October of ‟09. Again, they
had improved their knowledge based on the pre and post-tests at the end of our
courses. This may seem a little mundane, but there‟s not a lot of information in the
literature that says doctors can learn. So this is proof that yes they can learn at least
something. But again, what they put into practice, that‟s a different one.

Then these are just the statistics from our medical records keeping course. Again, this is
from 1099 participants with 2098 tests, and again, a statistically significant improvement.
So I‟m going to stop here. We have some case studies, but I think it‟s better if we go on
with questions and answers at this point. Yes?

Male: How do you bench mark your success, if there is such a thing, how do you
benchmark yourself against your peers in the industry?

Dr. Bazzo: We haven‟t been able to. Comparison of courses or comparison of programs.
One of the things that we have informally looked at is sort of the failure rates. We have
openly published our failure rates. Other programs haven‟t at this point.

While it‟s not listed in the numbers of failure rates, [there are times that we] as a faculty
or the staff at PACE have to go to court. We sit in the administrative law cases and we
have to defend our assessment as to why we have determined why a particular
physician is unsafe to practice. Now over the last 14, 15 years we have gone to court—
I‟m going to estimate and Peter can check me on this, I believe about 15 times we‟ve
had to go to court on the failures that we have had. I‟ve been in court personally five
times. I know Dr. Norcross has been at least 10 times. Peter, am I right?

Mr. Boal: Yes...

Dr. Bazzo: And Peter has been a few times. We haven‟t lost any cases. When it
comes to scrutiny with both sides present our recommendations and our report has
stood up to that scrutiny.

Male: [What about assessments] from your clients, or the physicians who have gone
through, do you publish those?

Dr. Bazzo: We are actually working on those now believe it or not. Dr. Norcross had
actually gone through for each participant that comes through we do a post-interview
with them. It takes probably about 45 minutes, a half hour or so. [unclear which phase
he‟s talking about]

Dr. Bazzo: We send out a survey to the participants after they have been to PACE for
Phase I and Phase II. We have gotten feedback, the comments back. What‟s our
response rate Peter?

Mr. Boal: 60%.

Dr. Bazzo: 60% voluntary.

Mr. Boal: About 80% reported the program was good to excellent for them and
beneficial. Surprisingly, this is something we never intended but they said they learned
new procedural skills by watching our skills. Our surgeons said, “Well of course, that
would be expected.”

[Laughter]

Dr. Bazzo: What we‟re trying to do right now is we get a lot of subjective comments
back. We‟re trying to categorize those subjective comments so that we can report them
objectively. That‟s a current study that we are looking at.
Male: In terms of looking at the utility, other than validating it in court, you do a kind of
360 profile of the physician in your Part I. Not only you get the physician‟s feedback, but
you validate it through eight of the peers and eight of the staff and 25 patients. Do you
go back and really try to validate their experience with you with the performance?

Dr. Bazzo: I know where you‟re going with this and for your typical assessment
participant, no at this time. However, with the behavioral assessments we have—and
behavioral courses. So for example in our anger management course, it‟s a course. It‟s
three days. It‟s in San Diego. It‟s three very intensive days and they have to do some
pre-work before they come. What‟s the follow up for that?

Well we have a program in place that is a coaching/mentoring follow up that includes a

360 at the end. That‟s a three-month engagement. But at this time it is optional. We
haven‟t had Board‟s mandate the follow up program. We have had a couple of hospitals
that have sent people to anger management mandate that program. So we are in
process of doing that follow up. That‟s something we‟ve developed within the last six
months.

Mr. Boal: Just an important thing to think about with the 360, one of the problems we
have in trying to validate and compare the doctor‟s performance, rated by their peers
and self-insight, with the assessment the doctors themselves can hold up the 360
process. We don‟t want that to hold up the whole program. So we don‟t mandate that the
360 results are in before we write our report. We‟ll include them if they‟ll available or
send them after the fact.

Part of the other problem is not all doctors can do a 360 because they have an isolated
solo practice. They don‟t have enough peers that can rate them. But even still, with the
doctors who do get the whole 360 done, often times what we‟ll find is we‟ll see
information that mirrors what was reported by the Board. They come to us and they‟re
angels, but when you get this practice, the description about what‟s actually happening
in the practice you say, “Ah, ha!” I‟ll tell you they‟re not always angels.

Dr. Bazzo: We actually have a professionalism form that our staff completes on the
doctor‟s interactions while they‟re there with us. Again, you would imagine they would be
on their best behavior. Sometimes they‟re not. That is even greater insight.

Female: What is the requirement to complete Phase II. I know you talked about the
differentiation between, but what is the requirement?

Mr. Boal: Again, our philosophy is that we need both to make a final judgment. About
80% of all doctors who complete Phase I come back for Phase II. The Medical Board of
California just straight out mandates it. Hospitals that send out doctors consider it. I think
Arizona cases it‟s been, we‟ve kind of changed our policy over the years. More recently
more have come than in the past.

We have a change because we thought in Phase II it‟s going to be educational more

than anything else, but we don‟t always have enough information in Phase I. This really
needs to be an assessment. We need to be sure at the end of the seven days we feel
comfortable this person is competent or not.
Dr. Bazzo: You guys do things I think slightly different than California. It may be in the
investigatory process. If you‟re comfortable with a Phase I report I‟m not saying you
aren‟t going to change your mind. But just from our perspective it gives us a more solid
ground for ourselves to say, “This person has passed or failed.” We won‟t make those
comments in a Phase I report. We will do so at the end of Phase II. But the report will
speak for itself in terms of the performance and if that gives you enough information to
make a decision about that particular physician that‟s up to you.

I don‟t know if that helps you or makes it harder for you. We prefer to do Phase II. I don‟t
want to sound self-serving….

Mr. Boal: I think it gives the more complete picture. I think Arizona has used us in
different ways. They‟ve used us during an investigation. You‟ve also used us after the
fact in an order. There‟s an order that says you will complete Phase I and Phase II, then
that‟s great. That‟s what our preference is. If there‟s information that you want such as
information on Phase I and that‟s going to be your thought on the picture in sort of
determining where this investigation goes, that‟s fine. Just our report will not be able to
be as strong or as vigorous with a recommendation as to if they did Phase I and Phase
II.

Dr. Bazzo: Right now the consent order just reads, “Go take PACE.” So maybe that‟s
part of the confusion. I don‟t know if there was any intent on that, it‟s just how it was
written. But to us the conference and assessment process includes Phase I and Phase
II.

Physician’s Health Program (PHP): Dr. Michel Sucher

Dr. Sucher: Good afternoon! Thank you all for having me. You know we‟ve been
partnered with the Board for a long time, almost 20 years now. We have been working
together on a regular basis. Dr. Greenberg wasn‟t able to be here this afternoon…. Dr.
Greenberg and I have been working together pretty much since the beginning.

I‟m just going to kind of run through what our purpose is, the history of how we got to
where we are, what we do and some of the data which I think I find very interesting,
doctors versus PA‟s, male and female types of trends, things like that. Years ago we
developed and continue to evolve a purpose statement. I think it speaks for itself.

The important thing I think you really understand your mission of public safety protection.
It‟s interesting working with other physician health programs they often struggle with.
They‟re much more separate from the Board. Sometimes they either have no
relationship or not a good relationship with the Board.

We also added an addition to the alcohol and drug abuse issues which is most of what
we do, probably somewhere around 85-90% of physician health issues at some level
involve alcohol or drugs. Even with that said, some of them are initially suffering from
depression, isn‟t diagnosed starts self-medicating and then develops a substance abuse
disorder in addition to their psychiatric problem.

Our program is authorized by statutes. We‟re blessed to be able to have a confidential

program which I think is very helpful….
If you go back historically, before 1986 this was run directly inside the Board. It was
really done on a pretty much case by case basis without a lot of consistency. It was
much less formal. In 1986 the Arizona Medical Association formed a physician
professionals health program that contracted with this Board, [and others], until 1992.... I
think this Board was not all that happy.

I have to tell you though, over time the level and role of what we‟ve done has greatly
increased. In the very beginning Dr. Greenberg and I were simply medical consultants to
you. The other elements to the program is drug testing, relapse prevention, all the things
we‟re all independently operated, we have progressively assumed virtually more and all
of those responsibilities.

The good news is everything has overall clinical—consistent clinical oversight.

Everything works in concert today which I think is an improvement. We work very closely
with your leadership, with Ms. Wynn, Ms. Diehl, Kathleen as the program manager, and
we regularly interface.

Both Dr. Greenberg and I are certified by the American Society of Addiction Medicine,
board certified by the new American Board of Addiction Medicine, certified as medical
review officers for interpreting drug tests. We are members, active members of the
Federation of State Physician Health Programs which is essentially, the FSMB of
Physician Health Programs. In fact often our meetings are back to back. We‟re trying to
have much more interface.

We have case managers throughout the state doing relapse prevention group therapy.
Facilitators throughout the state. We work with two premier drug testing laboratories—
Southwest Laboratories who we worked with since before Dr. Greenberg came along.
The only substance abuse and mental health service administration certified lab in the
state of Arizona. We have a very close relationship, particularly when there are
questions of accuracy or tampering with specimens, those kinds of things. We work with
the United States Drug Testing Laboratory for our hair testing which is fabulous.

We also are actively involved in clinical research. We published I think four papers in the
last few years on outcomes and data, issues and controversy concerning addiction
medication in particularly in professionals. There are a lot of ways that people get into
trouble and subsequently get to us, and sometimes will come directly to us in which case
we call the Board then they get referred back to us.

Our self-referrals, most self-referrals are not truly voluntary. We just don‟t see doctors
who wake up and say, “I‟m having a drug problem. I think I‟ll call the medical Board
about it.” So usually there‟s a nudge from a spouse or a family member, from a co-
worker or colleague. Sometimes from law enforcement. Sometimes from the hospital.
There are often complaints from the various entities you see here.

Interestingly enough, patient complaints are really almost always well meaning. I mean
somebody says they just don‟t want to pay their bill or they‟re unhappy with the service,
not so in my experience. That can happen.

I remember a case a number of years ago where the mother of a patient of a pediatrician
called us. She said, “I‟m really worried about Dr. X. He‟s acting just like my brother who
had a methamphetamine problem.” It turns out after a little bit of investigation he did
have a methamphetamine problem. She was exactly right. We were able to get him help.

Then of course we here about arrest reports. It used to be one of this room‟s
predecessors told me one day, “Every time a doctor gets arrested it gets reported to the
medical Board.” That‟s pretty interesting. I started thinking about it. I said, “Wait a
minute. My driver‟s license doesn‟t say I‟m a doctor. My car registration doesn‟t say I‟m a
doctor. So how do they know?” He said, “Usually the first words out of their mouth are,
„I‟m a doctor.‟”

[Laughter]

Dr. Sucher: I used to give lectures and I used to tell doctors, “Don‟t tell them you‟re a
doctor.”

[Laughter]

Dr. Sucher: … When someone comes to the Board‟s attention if the Board decides it‟s
worth pursuing further which is true most of the time they‟re sent to us for what‟s called a
health assessment which is an initial screening evaluation.

Since most of these are substance abuse either Dr. Greenberg or I perform them.
Sometimes they are clearly psychiatric psychosexual disruptive behavior and we have a
number of psychiatrists who we work with who will do it when that‟s the appropriate
place to start.

Everybody who is assessed is drug tested. Comprehensive urine drug testing.

Comprehensive hair testing. Because as you might imagine, kind of like our friends from
PACE present, most people are kind of angelic and on their best behavior and first want
to present their best side….

Now the outcome of an assessment may result in [a belief that no] further investigation is
warranted. We don‟t think there is a health problem here. Sometimes they‟re referred to
a comprehensive residential evaluation which I‟ll talk more about in a minute.

Just two days ago I saw a physician who got an aggravated DUI. He was out with his
son, an 11-year-old kid. What happened is he—when he finished working he had a
couple of airline bottles of liquor in his car and he quickly downed those. Then he
decided, “I think I need to go to the strip bar on the way home,” which apparently was
something he does fairly regularly. He had five martinis in two hours.

He drove home and his kids were clamoring. “We want to go to the video game store.
We want to go to the video game store.” So he took them to the video game store. That
was all she wrote. He recognized, because this had been a pattern and a problem. He
said, “I want help. I want to go to treatment. I know I need help.” He‟s going directly to
treatment.

Sometimes if there‟s a medical or psychiatric condition we may simply recommend they

continue under the care of their providers to do that. Unfortunately the medical Board
gets a report—staff gets a report of our assessment. They make the final decisions….
Now comprehensive assessments are really a pretty cool process. Two to four days and
nights typically, sometimes longer. Medical evaluation, addiction evaluation, psychiatric
evaluation, psychological testing, drug testing, and occasionally a medical polygraph.
We have gone from doing urine testing to doing urine and hair testing to doing urine, hair
and polygraph when indicated. I‟ll give you another example.

I‟ve got a lot of stories, but this is a doctor who had got a DUI. He had been in the
monitoring program at the time four and a half years sober. He said, “You don‟t
understand, Mike. What happened is I woke up in the middle of the night. I couldn‟t
sleep. We just bought a new house. I was driving to the house and an officer pulled me
over and he gave me a DUI, but I haven‟t had a thing to drink.” Everybody on the
assessment team believed that.

Let‟s just get a polygraph to be sure. He completely failed the polygraph about what
happened, whether he had been drinking or not, whether he had been sober four and a
half years and all of those sorts of things. It turned out when he finally decided to get
more honest that he actually had a fight with his girlfriend, got up in the middle of the
night, drove to a strip club, had a couple of martinis and then he got pulled over. So in
my experience the polygraphs are always true.

Another key part of these types of assessments are what we call collateral information.
Kind of what you heard from PACE about 360s where we—not we, but the evaluation
enter, they are a Board-approved evaluation center. By the way, we‟ve visited every one
of them. We know the staff. We know what they do. They will call colleagues, family
members, partners and get other impressions of what somebody is like. Again,
remember they are presenting their very best side to us.

The outcome of the evaluation is critical. What‟s the diagnosis or diagnoses? What sort
of treatment do they need? Are they safe to practice? Those are things you have to
know. Those are the things I have to know to make follow up recommendations. If the
center can‟t do that for us then it‟s not much use to us.

I talked with a case manager of a place in California the other day in a case. I need to
know if this doctor is safe to practice. “I can‟t tell you that.” I was like, “You have to tell
me that.”

In terms of diagnoses, from a substance abuse perspective it‟s substance abuse versus
substance dependence or addiction. Those are varied levels of severity along the
spectrum of substance use disorders. There are actually two separate categories in the
DSM which is the psychiatric Bible if you will: abuse and dependency. It‟s going to
change. There‟s a DSM-V coming out that‟s going to collapse those categories into a
single category of substance use disorders which will probably make our lives a little
more challenging for a while, but we‟ll find a way to do it. It‟s still the same medical
illness.

Sometimes there are psychiatric, neurological behaviors behind those diseases that
need treatment. When there‟s recommendations for whether they need diagnostic
monitoring.

I‟ll talk about substance abuse in a second, but that‟s not as severe as addiction. While
there are criteria for the difference, the real essence of the difference is loss of control.
Somebody who has just got in trouble, say DUI or two DUIs will face the consequences
and stop. I saw one in the County Jail who had four DUIs. He killed his girlfriend in the
last one. He was looking at 15 to life. That‟s addiction. Those are people who continue to
drink and drive in spite of repeated consequences. The concern is safety to practice.

We have two programs, two tracks if you will in the monitored after-care program, which
is the historical substance abuse portion of the program. By the way, right now there are
16 participants in the abuse track; they haven‟t reached the threshold of addiction. They
are required to not drink, not use drugs, be randomly drug tested for a two-year period of
time and get some education on substance abuse. There are 83 Arizona resident
physicians in the substance dependence track.

There are two portions to that. The majority are in the confidential non-disciplinary
stipulated rehabilitation agreement phase. There are a number of them that are on
probation which is as you know public discipline. So again, substance abuse doesn‟t
reach that threshold. Two years of a confidential diagnostic drug testing, education and if
they very successfully complete that we will write that they didn‟t reach the threshold of
addiction and they can be released from the program.

If they fail through significant noncompliance or positive drug test then they did lose
control. They just made the diagnosis if you will. We‟ve had a couple of them this year.
So two of the 16 in this last year have failed. That‟s about right in my experience.

We‟ve been doing this—initially we treated everybody the same. Substance abuse,
substance dependence, they all went into the longer term more comprehensive
monitored after care. We knew we were over-treating some people. I think the mindset
was a substance abusing physician is just as potentially dangerous to the public as a
substance dependent one because of diagnostic criteria, attorneys and so on we haven‟t
been able to do that.

I don‟t think that‟s been so bad. But typically one quarter of the abuse participants fail
and really did have or progress to addiction. Three-quarters do fine. We were right that
they were fine.

The dependence track again comes through the same mechanisms of reporting or failing
the abuse track. They are now diagnosed with substance dependence and we have
found that requires 30 to 90 days of residential treatment. For people who have never
been through treatment before who don‟t have complicating things like chronic pain,
serious psychiatric illness, prior relapse, 30 days is probably enough.

By the way, this Board and we did a study about 15 years ago. We looked at all the
physicians who did primary outpatient treatment, not residential treatment. 95% of them
relapsed within 18 months or less. That‟s when we decided that was not okay. Intensive
outpatient was not an okay way to treat a substance dependent physician.

Most Boards and most physician health programs have found the same thing over the
years. Physicians who have relapsed or who have complications like psychiatric issues,
chronic pain, other issues, often need more treatment and virtually everyone who
relapses gets 90 days.
Once they complete treatment they sign the rehabilitation agreement, assuming it‟s their
first time and there‟s no serious criminal activity or serious patient care issues. We have
a physician, anesthesiologist who was abusing Fentanyl. One day he decided to add
[??] to the mix. He quickly became the anesthetized person in the operating room.
Obviously because it—another anesthesiologist stepped in and no patient harm
occurred. Clearly because of the risk he wasn‟t eligible for the confidential program and
appropriately so.

By the way, there is a trend toward longer treatment. This is a tough illness. It is a
particularly tough illness for physicians who are not used to being patients. We‟re not
used to being told what to do. We‟re just finding it‟s better in some cases to do a longer
treatment time.

The disciplinary side is again, if somebody has committed a serious enough criminal
issue or act and is a real risk of actual patient harm. They don‟t become eligible for the
confidential program either, even if it‟s their first time. But if somebody has relapsed
while they‟re on the stipulated rehabilitation agreement, relapse while they‟re on the
probationary order, they don‟t get to go back to non-discipline.

And prior MAP participants, people who have finished the program but then relapse and
come back also end up on probation. They have to have additional treatment. They may
have additional discipline. It‟s not confidential.

The beauty of the stipulated rehabilitation agreement and the abuse track is also
confidential and doesn‟t go to the data bank. Years ago that was not a particularly big
deal. It was a nuisance. But today it can be an economic death sentence. You can‟t get
on insurance panels. You can‟t get malpractice insurance. You can‟t get hospital
privileges. So that‟s a really valuable gift.

I will tell you that the philosophy of this Board has changed over the years. If you go
back a few directors you had somebody who had a substance abuse problem, …
somewhere around 60% of our participants were on the disciplinary track. Today it‟s
around 23-24% which is consistent with most confidential programs.

We‟ve really moved in the right direction. I give a lot of credit to this room, your
immediate predecessor who was very helpful in that regard.

These are the things that we have people do who are in our program after they‟ve been
treated. Obviously they have to abstain from alcohol or other drugs. They are randomly
drug tested. That varies from two to four times per month on a routine basis. When we‟re
worried we increase that.

We have an ability to direct people for tests. If we have people who are out of town for
more than two weeks they get an automatic hair test two weeks after they come back
because it takes about two weeks for drugs to get into the hair.

They have to attend a weekly relapse prevention group led by a therapist who is used to
working with professionals who the groups contain only other licensed physicians and
PA‟s. They have case management quarterly or more frequently if necessary,
evaluations by us. They have to attend self-help meetings like Alcoholics Anonymous or
Narcotics Anonymous. That‟s all documented.
They have to have a Board-approved primary care physician. They can‟t be their own
doctor anymore. No self-prescribing. Any controlled substances we have to be notified in
advance if it‟s routine, within 48 hours if it‟s urgent.

Also they can‟t—in addition to not drinking any alcohol they can‟t have foods with
alcohol. They can‟t eat things with poppy seeds because those can produce false
positives. If there‟s something comes up that‟s not a relapse, their behavior is
concerning or they‟re concerned about the medical we can require that they be
evaluated,… and they have to obey all laws. They have to let us know if they‟re going
out of town. They have to pay fees. They have to report relapse.

It‟s a five-year monitoring period. There‟s also a trend toward longer monitoring. There‟s
a lot of research that shows certain factors puts people at higher risk. Strong family
history, opiate addiction is a particular risk particularly with psychiatric issues and opiate
addiction. Some anesthesiologists which you‟ll see in a minute is the most frequent and
highest risk here which might be career long monitoring. We don‟t have the statutory
authority to do that. That‟s not a standard of care nationally, but that‟s the direction that
we are heading in.

Male: If something comes up on a screening test, do you do a quantitative analysis then

to follow that or do you just assume there‟s a problem?

Dr. Sucher: No. First of all you can tell if it‟s consistent with poppy seeds both by the
ratios of morphine to codeine and the time frame. Secondly, we‟ll repeat tests, do hair
testing. If it‟s prolific we‟ll send people for evaluations if possible. But we‟re very diligent.

One thing is if somebody accidentally eats poppy seeds, would you please tell us so we
can be on the lookout. Typically poppy seeds won‟t last more than 24 hours. So if the
story is I drove by this shop and I just couldn‟t resist the smell. I had 12 poppy seed
bagels on my way to work.

[Laughter]

Dr. Sucher: Clearly if they‟re missing their [sessions], that‟s going to be a significant
thing. We allow them to miss a certain number of groups on an excused basis. We just
reported somebody to the Board who has only shown up once. No shows, no show no
calls are not okay.

If they don‟t have an approved primary care physician— and we review everyone‟s
request. It can‟t be anyone else in our program at the same time. Since we do work with
the osteopathic Board as well they can‟t be in their program. They can‟t be anybody who
is in trouble with you.

They can‟t self-medicate at all, even over the counter drugs and stuff. Aspirin, Tylenol
and ibuprofen. We really want them to stop being their own doctors. They have to keep a
medication log. Basically everything in there that they‟re required to do if they don‟t do it
can be a noncompliance.

Now they get to complete the program if they‟ve complied with all the terms, if they finish
the five years the agreement terminates on the five-year anniversary of the Board‟s
signing of it. Now there are some people where there are other investigations going on
initially and they‟re on an interim agreement. Typically the Board will give credit for time
served. So monitoring really is a five-year monitoring.

If there‟s noncompliance it is significant and not correctable because we‟re on this and
we‟re talking to these participants. Jessica is checking everything every night,
sometimes more frequently.

When we find out about something we‟ll be talking to or meeting with the participant. If
it‟s not major and we can fix it, no problem. But if they can‟t, we may refer them for
potential discipline for noncompliance. If they relapse they have to agree to stop
practice. They have to go get additional treatment.

While they are formally terminated from the MAP program while they are in treatment,
we are on a weekly basis or more in touch with the treatment program on how they‟re
doing, how is their progress, if there are any key issues, those kinds of things. After—
and Arizona by the way has probably one of the most firm and solid ways and consistent
ways of dealing with this.

There have been articles in the paper. There was an article in The Washington Post
some years ago about the Washington D.C., Virginia, and Maryland medical Boards
allowing doctors with five, six or seven relapses to keep practicing. We don‟t do that. So
the first relapse, after the first time your treatment is considered a second strike. You
have to agree to not practice, complete additional treatment, almost always 90 days.
Then you come back and typically on probation and the five-year clock starts over again.

By the way in the last year, last two years we‟ve had ten participants relapse who are
currently in the MAP program, two of whom are in the abuse track, two out of the 16.
The other eight were in the dependence track and relapsed. So they got strike two.
Typically if you‟re looking at about 100 people in the program and five per year, that‟s
pretty good.

… [with strike two, the program becomes nonconfidential.]

Now if it occurs another time we consider that strike three. That means voluntary
surrender or revocation and referral to a hearing. That‟s a five-year revocation
traditionally.

By the way, in the last two years three years have been in this category. So again, it‟s
not a common occurrence, but it does occur. A couple of them have been out of MAP
the second time for quite a while actually.

Now we have done a lot of things I think over the years to make your life easier and to
improve the program. You don‟t see us at Board meetings very often. When I started
doing this we were at every Board meeting. In fact on…the last day of the Board meeting
was every participant had to come in public and meet with the Board…. It really wasn‟t
very good use of anybody‟s time. Of course if the newspaper or TV cameras were
around that just wasn‟t very good.
We‟ve gradually taken that away and I think very successfully. I think when we come to
you with a case it‟s a serious issue that the staff and we haven‟t found a way to resolve
it. I can‟t remember the last time we did that.

We have put these compliance standards in place. They‟ve been very effective. They‟ve
helped us hold people accountable to the agreement.

I think because we‟ve been around a long time there‟s a lot of trust in us within the
hospital and medical community, with you and I think that‟s allowed more people to
come. The fact that we have real confidentiality has really helped us be more adept to
reach more people, help more people and help them earlier.

Now there‟s the numbers. There are 109 people in the program presently. 16 on the
abuse track. 83 in the dependence track. The other ten, eight of them are out of state
people, people who have Arizona licenses are in other states and we get reports from
those other states on a quarterly basis.

Now we do require any of our participants who either move out of state or who live out of
state but hold an Arizona license to be in that state‟s approved program. They send us
quarterly compliance reports. We have two we are monitoring for pure psychiatric
reasons. 84% MDs, 16% PA‟s. About three-quarters male to female. By the way, that‟s
up. It used to be when I started about 10% female. I don‟t think addiction is gender
specific disease.

At least we‟re helping more people get help. We get about 20-30 people a year new. We
get a certain number that finish the program. The overall success rate is somewhere
around 90%. That‟s pretty darn good.

I don‟t know how many of you are familiar with [??], which is the public drunk tank out of
Van Buren which I‟m also now the director. Those are people who are typically helpless,
indigent, uninsured, and we detox and treat about 5000 people a year. If 5% of them are
sober a year later I would be pleased and tickled to death. Here we have 90+%.

If you look at our data published in the British Medical Journal, that looks at broad, large
samples of physicians that typically those are pretty consistent results. The most recent
study in the November ‟08 British Medical Journal looked at 904 physicians in 15 states.
78% never had a single slip from the day they walked into treatment for an average of
7.1 years. Of the remaining 22%, three-quarters of them had one brief slip and went on
to do well. Only about 6% were chronic problem doctors. That pretty much mirrors our
experience.

These are just some numbers, breaks down SOA, probation, abuse, out of state and so
on and MD to PA, male to female which I already talked about. The most common
specialties—anesthesia is almost always number one here and elsewhere. It‟s a really
serious problem.

The first clue that an anesthesiologist has a drug problem 25% of the time is death by
overdose. The first clue is they‟re found dead. Many of them have to change specialties
or retrain….Imagine being an alcoholic bartender and trying to go back to being a
bartender except you‟ve got much more potent drugs, virtually unlimited supply and not
terribly well accounted for. Internal medicine just by sheer numbers is very common,
emergency medicine, psychiatry.

Alcohol being legal is still the most common drug. Opiates are right up there. You don‟t
see a lot of heroin addicts, but we do see a lot of Vicodin, Percocet, Oxycotin and
Demerol, Fentanyl and things like that. We do see some benzos….

We also have about 40% of our participants in addition to having a substance use
disorder have a psychiatric disorder…and clearly they have to be treated for and
managed for that therapy and medications. We get quarterly reports from their approved
psychiatrists in these cases as well. That just gives you that same kind of breakdown in
a picture format.

The Physician‟s Health Program component which you guys have statutory authority for
five or six years ago was initially operated internally within the Board. You guys asked us
to take over that responsibility a little over a year ago for all of these other issues. These
are significant issues. They do affect patient safety. Yelling and screaming doctors
disrupting their teamwork flow is very disruptive and very potentially risky.

You‟ve just heard from PACE that there are ways of dealing with this. You just heard
from again the ways of monitoring these things. While we don‟t have a lot of them in our
program as yet, I would hope that more people would seek us out on a confidential
voluntary basis and allow us to help them.

[We‟ll have increasing issues with] aging physicians over the next number of years, all of
us are sort of going down that road. If you look at the consequences of just normal
aging, that‟s scary. If you start adding dementia and other neurological problems it gets
extremely scary. But we do work with consultants in every specialty. We work with
treating physicians. And again, you can help somebody and protect the dignity of the
doctor while protecting the safety of the public. I think that‟s a really cool [ability?] to
have….

We really run the program pretty independently. All of the records—we are the custodian
of your records, all the medical records although they belong to you. I think that‟s a really
good thing.

We‟ve had the confidential program get established and be well-regarded. I think that‟s
helpful in today‟s environment. We‟ve added the abuse track. We continue to improve.

[Alcohol testing is much improved. Formerly a negative urine screen didn‟t mean you
weren‟t drinking, and with a positive I wasn‟t sure you were.] Now we have tests that
detect a single drink for 36 hours, heavy drinking for five to seven days and it keeps
getting better all the time. We‟re much better at—much more consistent about testing.
We do use comprehensive assessments including polygraph .

We have a private monitoring program. To be in this program you have to be an actively

licensed Arizona MD or PA. There are physicians at the Indian Health Service on other
state services, physicians who just move here and don‟t have a license. So we‟re able to
help those on a private basis, but on a virtually identical way. That‟s pretty cool.
By the way, in terms of lab testing, pretty soon we‟re going to be able to detect in hair
[drug] and also alcohol metabolites, which allows us 90-day windows for drinking which
is really excellent….

I think we‟re recognized as a quality program…. We‟re active members of the Federation
of Physician Health Programs.

[With the advances] coming in drug testing, we‟re probably going to come to you at
some point for statutory changes about longer monitoring. That‟s really indicated. So we
can adequately protect the public over long periods of time when that‟s necessary….

Male: [You said that amongst different specialties], the success rate is somewhere you
said around 85% on the top end. Of the 15% that is not successful is there a
demographic or something [that predicts that].

Dr. Sucher: [One group at high risk is those who give drugs with high abuse potential in
the operating room. The other group is those who are prescribed opiates.] Most of us
can get through life without drinking, without using cocaine, without smoking pot. But no
one gets through life pain free. We see a lot of relapses.

We had a physician who had 10 years of recovery and last year he had to have a multi-
level spinal fusion, got back on opiates, went back to his drug of choice, which was a
third strike. He‟s out. We need to find ways to deal with trauma. The other thing is people
who have really deep psychiatric issues along particularly with opiate addiction are the
most difficult types.

Male: How does the physician pays for the services? Especially when he is suspended
and out of work?

Dr. Sucher: That‟s been an ongoing challenge. We will work with people who…have
real hardships…. If you look at chronic disease management it‟s probably around
$10,000 a year, which insurance will cover some of it…. We have not refused care to
anyone for inability to pay ever. Ever…. Thanks, that‟s a great question.

Potential Statutory Amendments and Initiatives

Ms. Wynn: Why don‟t we start with House Bill 2545. This was legislation that was
passed last year. It was written largely by the Arizona Medical Association.

We had a real concern about non-disciplinary items being on profiles. It was written to
encompass many regulatory Boards, both health regulatory Boards and non-health
regulatory Boards like real estate and contractors.

What we found in doing our own research is that there is a gamut when you look at
medical Boards around the country some do and some don‟t post non-disciplinary
actions. When you look at all the Boards in the state some do and some don‟t….

Unfortunately there is a lot of lack of clarity in the law. It should go into effect Jan 1,
2012. The AMB could do this sooner. If the record of the nondisciplinary action is
available from the AMB to the public at all times. This would be an added burden to the
staff….
A provision in the Omnibus bill is clearly contradictory.

There have as yet been no changes to the website. Nondisciplinary actions are still
there.

Dr. Lee: What would happen if we took nondisciplinary actions down? We need to
support AMB staff.

Dr. Petelin: There‟s plenty of time…. No one wants to cross ArMA…. The publicity
serves as a deterrent. Doctors know that if they do something, even if it‟s not egregious,
it could give them a black mark. Yesterday at a SIRC meeting something that might have
resulted in discipline ended up with an advisory letter. So there was someone close to
discipline who got exonerated on the basis of a technicality. People looking up the
doctor‟s profile would lose some knowledge unless they constantly call up the AMB
asking for information. Since things were up in the air, there was no harm in waiting.

A motion to remove from the website nondisciplinary actions that did not involve some
sort of practice restriction was withdrawn to avoid and up-or-down vote.

It was decided to work with legislators and stakeholders to clarify the situation.

There is rough draft language to permit physicians to treat partners of patients with
STDs without seeing them. Also to permit them to provide immunizations to members of
their household and to patients they have not examined. Currently pharmacies are able
to give vaccines that physicians couldn‟t. The DHS favors this change.

The question of whether AMB profiles should contain information not strictly relevant to
medical practice such as results of criminal background checks, which is maintained on
other databases, was discussed.

Dr. Petelin: The Board should concern itself with serving the public and pay no attention
to ArMA.

Other issues: dispensing licenses; requirements for nonradiologists who interpret

imaging studies such as surgeons who do biopsies; waiver of fees in an effort to attract
primary care physicians; access to the pharmacy database; medical use of marijuana.