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F I S C A L I M P A C T R E P O R T
SPONSOR Trujillo
ORIGINAL DATE
LAST UPDATED
1/21/2008
2/12/2008 HB
177/aHHGAC/aSPAC/
aSJC
SHORT TITLE
Medical License Suspensions & Reporting
SB
ANALYST Moser
APPROPRIATION (dollars in thousands)
Appropriation
Recurring
or Non-Rec
Fund
Affected
FY08
FY09
NFI
(Parenthesis ( ) Indicate Expenditure Decreases)
REVENUE (dollars in thousands)
Estimated Revenue
Recurring
or Non-Rec
Fund
Affected
FY08
FY09
FY10
0
0.1
0.1
Recurring Medical Board
Fund
(Parenthesis ( ) Indicate Expenditure Decreases)
SOURCES OF INFORMATION
LFC Files
Responses Received From
NM Medical Board (NMMB)
SUMMARY
Synopsis of SJC amendment
The Senate Judiciary Committee Amendment to House Bill 177 as amended:
•
removes Senate Pubic Affairs Committee amendments 2 through 6; and
•
removes provisions amending Section 41-9-5 NMSA 1978 amending the provisions for
Confidentiality of Record of Review and to Section 61-6-23 NMSA 1978 which sought to
amend the Investigation and Subpoena powers.
The Amendment does not modify the Bill’s language regarding the summary suspension or
restriction of license
pg_0002
House Bill 177/aHHGAC/aSPAC/aSJC – Page 2
Synopsis of SPAC amendment
The Senate Public Affairs Committee Amendment to House Bill 177 clarifies that:
•
Malpractice settlements reported to the NMMB will only be those “that are paid as a direct
result of the licensee’s care."
•
The NMMB must inform the review organization of a third party subpoena within 15 days
of receipt of the subpoena;
•
The review organization has standing as a third party intervener to bring action to oppose
release of peer review records that are in possession of the NMMB; and
•
That the opinions expressed by individuals in the peer review documents may not be used
as the basis for a NMMB decision without the written approval of the author of the opinion.
Synopsis of HHGAC amendment
The Health and Government Affairs Committee Amendment to House Bill 177 serves to clarify
that the Board will only seek peer review records relevant to disciplinary actions "that are
reportable to the Board." What is required to be reported to the Medical Board by healthcare
entities is defined in our existing rules. The amendment clarifies language already in the bill
stated on page 8, Subsection E.
Synopsis of Original Bill
House Bill 177 proposes to amend portions of the Medical Practice Act.
•
Power to Subpoena Review Organizations
:
o
Section 41-9-5 of the Review Organization Immunity Act, Confidentiality of
Records of Review Organization is amended to allow the NM Medical Board
access to peer review records via subpoena only, without the requirement for
court review.
o
Section 61-6-23 of the Medical Practice Act authorizes the NM Medical Board to
investigate a complaint against a licensee and issue investigative subpoenas prior
to the issuance of a notice of contemplated action. HB177 adds a subsection B to
Section 61-6-23 that details the investigative subpoena authority including notice
and confidentiality.
•
Emergency Suspension Powers
o
HB177 would add a new Section, 61-6-15-1, granting the NM Medical Board
authority to issue emergency summary suspensions of licenses under certain
conditions which are specified in the proposed language. Any licensee whose
license is suspended under this Section is entitled to a hearing on the suspension
within 15 days.
•
Fees
o
HB177 would add to Section 61-6-19 an administrative reprocessing fee of no
more than the current license application fee for those cases that require an
applicant to resubmit a corrected application, or a licensee to resubmit a corrected
renewal. The fee would be limited to those applications and renewals that include
minor but significant errors, and would otherwise be subject to investigation and
pg_0003
House Bill 177/aHHGAC/aSPAC/aSJC – Page 3
possible disciplinary action.
o
HB 177 would also authorize the NM Medical Board to charge a fee for
nationwide and statewide criminal history screening.
FISCAL IMPLICATIONS
The NM Medical Board indicates that HB177 should save the NM Medical Board and health
care facilities around the state unnecessary legal and court costs related to disputed access to peer
review records. Additionally, HB177 would allow the NM Medical Board to recoup at least
some of the costs of reprocessing certain applications and renewals. The Medical Board reports
that these cases often consume as much staff time as full investigations.
SIGNIFICANT ISSUES
•
Emergency Summary Suspension.
Presently the Medical Board reports that it may only
utilize an emergency suspension when the physician is already under Board order or
stipulation, i.e., if there is a violation of an existing Board agreement. No matter how
egregious the perceived risk to public health, the Board is not allowed by statute to suspend
a license without first issuing a notice of contemplated action, then holding a hearing, and
then having a Board vote. Unless the Board can convince the licensee not to practice
during this time, he or she may continue to put patient health and safety at risk.
The language proposed by HB177 requires that if the license is suspended that the licensee
is entitled to a hearing on the suspension within 15 days of making such a request. This
would ensure timely due process.
The board notes that this is a power which it does not anticipate utilizing very often.
However, there are perhaps one or two cases a year which might merit this action to
provide significant public protection. The board indicates that at least 25 other states have
given their medical boards this authority.
•
Peer Review Records.
The Medical Board reports that board, the NM Medical Society and
the NM Hospital Association have discussed this amendment extensively, and have agreed
on language that would both serve the public interest by allowing the Medical Board the
information necessary to perform its job while at the same time protecting the
confidentiality of the peer review process.
o
When and why does the Board request records.
The Board investigates all
complaints; these can originate from a variety of sources, including receipt of a
report of an action by a health care facility or plan. When there has been a peer
review conducted, the review, the reports of the expert(s) and the decisions made
by the organization are clearly pertinent information. The Board notes that it does
not conduct “fishing expeditions." Peer review records would be requested in the
absence of an on-going investigation. Further, if the hospital takes an action
against a physician, that action would be reported to the Board.
o
Confidentiality of records:
All records obtained via subpoena would be covered
by the same confidentiality provided all Board investigative materials –
confidential and not public records for the purposes of the Inspection of Public
Records Act, pursuant to NMSA 61-6-34. The board indicates that the only
possible manner that the records could become public would be via subpoena
from an attorney or other entity; the Board would demand court review and argue
pg_0004
House Bill 177/aHHGAC/aSPAC/aSJC – Page 4
for confidentiality in this situation, just as the original peer review organization
would. To date, no confidential Board investigative records have been made
public in this way.
o
Confidentiality for reviewers:
The Board may, as part of its investigation,
communicate with the reviewers for additional information; however, unless those
individuals independently agree to be expert witnesses for the Board, their
identity remains confidential.
o
Possible use in legal action:
The actual expert peer review reports would only be
used if the expert who prepared the report independently agreed to be an expert
for the Board. If the expert reviewer does not want to be an expert for the Board,
then his or her report would not be used by the Board in any legal action.
o
Due Process:
Medical Staff bylaws within each facility provide for due process at
the facility; the Medical Practice Act and the Uniform Licensing Act provide for
due process for all Board actions.
o
Protection from legal action:
The Medical Practice Act provides that no person or
legal entity providing information to the Board, whether as a report, complaint or
testimony, shall be subject to civil damages or criminal prosecutions. See NMSA
61-6-34.
o
Cases involving substance abuse
: The Board notes that it remains committed to
encouraging licensees to seek voluntary treatment with MT and that this policy
will not change. Licensees who are voluntary participants in MTP are not
reported to the Board unless they violate their contract in a manner that poses a
direct and immediate threat to patient safety.
o
Cost savings:
To date, the board indicates that while it has been successful in
obtaining records in all but one of the cases that have been court reviewed that
compliance at the subpoena level would save the Board and review organizations
the cost and the delay involved in going to court.
The Board affirms that it understands that review organizations perform important functions
to ensure patient safety, and the necessity to maintain confidentiality for all involved.
Hospital and health review organizations are mandated to protect patients of the hospital or
health system while the board’s mandate is to protect the general public.
PERFORMANCE IMPLICATIONS
The NM Medical Board indicates that it would anticipate increased efficiency due to a reduced
workload in conducting investigations that involve peer review records. The board also indicates
that the emergency suspension authority would enable the NM Medical Board to perform its
basic function of protecting the public more efficiently and more in-line with public
expectations.
ADMINISTRATIVE IMPLICATIONS
The NM Medical Board may need to develop and hold rule hearings to implement portions of
HB177.
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