Unprofessional Unprofessional ConductConduct

……and Controlled and Controlled Substance AbuseSubstance Abuse

The BasicsThe Basics In the United States, medical In the United States, medical

licensure boards are professional licensure boards are professional boards, rather than administrative boards, rather than administrative boardsboards

70 boards, some states with separate 70 boards, some states with separate MD and DO boards (Oklahoma), MD and DO boards (Oklahoma), others are combined (Missouri)others are combined (Missouri)

All have an enabling statute that All have an enabling statute that defines the powers of the Board, defines the powers of the Board, which can and do vary significantly which can and do vary significantly across the USAacross the USA

Unprofessional Unprofessional ConductConduct Board powers are defined by the Enabling Board powers are defined by the Enabling

StatuteStatute and by and by Rules and RegulationsRules and Regulations, , promulgated by the Board… promulgated by the Board…

Rules and Regulations are developed over Rules and Regulations are developed over years, based on the experience of governance years, based on the experience of governance by the Boardby the Board

In Oklahoma, a rule is proposed by the Board, In Oklahoma, a rule is proposed by the Board, approved by both the Legislature and the approved by both the Legislature and the Governor of the State, following a public Governor of the State, following a public hearing process, and has the effect of law hearing process, and has the effect of law

Board Board Policy StatementsPolicy Statements give a sense of the give a sense of the Board’s use of the Statute and Rules and Board’s use of the Statute and Rules and Regulations, but do not have the force of law Regulations, but do not have the force of law

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The traditional actions of a licensure The traditional actions of a licensure board have included drug/alcohol board have included drug/alcohol abuse, narcotic or controlled abuse, narcotic or controlled substance diversion, and sexual substance diversion, and sexual boundary violationsboundary violations

Areas such as incompetence, Areas such as incompetence, illegitimate business practices, abusive illegitimate business practices, abusive behavior and supervision of employed behavior and supervision of employed professionals or staff have only professionals or staff have only recently become important recently become important

The public Board The public Board Agenda for Agenda for September 2010 September 2010 shows a typical mix shows a typical mix of case allegations of case allegations

Controlled substances, alcohol, sexual boundary violations

Quality Assurance, Incompetence, supervision of staff

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Unprofessional Conduct is defined in the Unprofessional Conduct is defined in the enabling Statue Title 59 OS, Section 509 (19 enabling Statue Title 59 OS, Section 509 (19 provisions) and Oklahoma Administrative provisions) and Oklahoma Administrative Code Title 435:10-7.4 (49 provisions)Code Title 435:10-7.4 (49 provisions)

12/19 of the statutory provisions and 12/49 of 12/19 of the statutory provisions and 12/49 of the Rules and Regulations deal directly or the Rules and Regulations deal directly or indirectly with controlled substancesindirectly with controlled substances

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From a broad social viewpoint, Unprofessional Conduct From a broad social viewpoint, Unprofessional Conduct is divided into is divided into two groupstwo groups: :

(1) (1) Drug/Alcohol violations, Fraud/Felony convictions Drug/Alcohol violations, Fraud/Felony convictions and Sexual Boundary violationsand Sexual Boundary violations , which are problems of , which are problems of society at large…society at large…

(2) (2) Professional StandardsProfessional Standards violations, such as abusive violations, such as abusive behavior, negligence, paraprofessional supervision, and behavior, negligence, paraprofessional supervision, and standards of care, including informed consent, standards of care, including informed consent, confidentiality, misrepresentation of skill… confidentiality, misrepresentation of skill… Quality Quality AssuranceAssurance issues from inside the profession issues from inside the profession

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The majority of the Board’s actions have to do with the The majority of the Board’s actions have to do with the first group of issues (“sex and drugs”), and violations in first group of issues (“sex and drugs”), and violations in these areas are well-defined, well understood…these areas are well-defined, well understood…

The public at large (and the Legislature) believe the The public at large (and the Legislature) believe the Licensure Board deals with Quality Assurance issues, Licensure Board deals with Quality Assurance issues, wants us to do more in this area than has been done wants us to do more in this area than has been done traditionally…traditionally…

Career-long Career-long professional competenceprofessional competence A far more contentious area of enforcement, which A far more contentious area of enforcement, which

Licensure Boards…in general…do less wellLicensure Boards…in general…do less well((SeeSee Handout, “Commentary” by Steven Altchuler) Handout, “Commentary” by Steven Altchuler)

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Controlled substances (legal or illegal) and Controlled substances (legal or illegal) and alcohol can be consumed by the physician alcohol can be consumed by the physician (“habitual drunkenness or the habitual use of (“habitual drunkenness or the habitual use of habit-forming drugs”), or “sold” to others habit-forming drugs”), or “sold” to others (diverted) in exchange for a fee (money or (diverted) in exchange for a fee (money or goods) or sexual contactgoods) or sexual contact

The internet has expanded the ways and degree The internet has expanded the ways and degree to which such violations can occur to which such violations can occur

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Federal and State law now govern off-shore Federal and State law now govern off-shore and interstate prescribing of and interstate prescribing of controlled/addicting drugs using the internetcontrolled/addicting drugs using the internet

A recent change in the Oklahoma Rules and A recent change in the Oklahoma Rules and Regulations impact the use of all medicationsRegulations impact the use of all medications

The “Face-to-Face” Rule…The “Face-to-Face” Rule…

Unprofessional Unprofessional ConductConduct The The Face-to Face RuleFace-to Face Rule [435:10-7-4(49) [435:10-7-4(49)

Unprofessional Conduct], combined with Unprofessional Conduct], combined with the definition of the definition of The Physician/Patient The Physician/Patient RelationshipRelationship [435:10-1-4 Definitions] are [435:10-1-4 Definitions] are the key provisions for deciding the the key provisions for deciding the intersection between the traditional areas intersection between the traditional areas of enforcement (“sex and drugs”) and of enforcement (“sex and drugs”) and professional standards violationsprofessional standards violations

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Without a professional relationship, sexual boundary Without a professional relationship, sexual boundary violations are absentviolations are absent

Narcotic Diversion violations normally include findings Narcotic Diversion violations normally include findings of a sham professional relationshipof a sham professional relationship

A face-to-face encounter impacts virtually all of the A face-to-face encounter impacts virtually all of the internet prescribing schemes, illegitimate telemedicine internet prescribing schemes, illegitimate telemedicine practices, and paraprofessional supervision violations practices, and paraprofessional supervision violations (“franchising” schemes)(“franchising” schemes)

Arguably, the final frontier for maintaining professional Arguably, the final frontier for maintaining professional competence and quality health care in a very politically competence and quality health care in a very politically motivated legal environment motivated legal environment

A final word to the wise…A final word to the wise…

The Oklahoma Health

Professionals Program“A confidential,

effective, compassionate approach to recovery and treatment for physicians and medical professionals who are experiencing difficulty with substance abuse and/or behavioral issues”

Lanny Anderson 405-601-9571

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Thank YouThank You