DUE PROCESS RIGHTS FOR PHYSICIANS W. Scott Keady & Joshua G. McDiarmid Kantrow, Spaht, Weaver & Blitzer (APLC)
New Restrictions and Requirements Relating to Investigations Of Physicians by the Louisiana State Board of Medical Examiners
T he Louisiana Medical Practice Act, La. R.S. §§ 37:1261- 1292 (the “Act”) was enacted with the stated purpose of protecting the public against the unprofessional, improper, unauthorized or unqualified practice of medicine by physicians. In 2015, the Louisiana legislature amended the Act (hereafter, the “2015 Amendments”) to specifically require the Louisiana State Board of Medical Examiners (the “Board”) to “adopt rules . . . to provide for the investigation of complaints against physicians and adjudication of alleged violations by physicians of any provision” of the Act. La. R.S. § 37:1285.2(B). The 2015 Amendments further required the Board to ensure that the rules adopted thereby satisfy the “minimum due process requirements” of the Louisiana and United States Constitutions and specifically address the requisite notice to be provided in connection with such investigations, the time limits for initiating and completing such investigations and scheduling adjudicatory hearings, the procedure for conducting adjudicatory hearings , informal settlements and consent decrees in connection with such investigations or adjudicatory hearings, and how notice of final decisions of the Board shall be provided. Id. As required by the 2015 Amendments, on December 20, 2015, the Board published the final rules for processing and investigating complaints against physicians and initiating and resolving administrative complaints filed by the Board against physicians. See La. Admin. Code 46:XLV Chapters 97 and 99 (collectively , the “2015 Regulations”). On May 31, 2018, the Louisiana legislature further amended certain provisions of the Act, including La. R.S. § 37:1285.2(A) and (D), and also supplemented the Act with the addition of La. R.S. §§ 37:1270(A)(9), and 37:1285.2(E) through (G) (collectively, the “2018 Amendments”). Unfortunately, the 2018 Amendments are somewhat unclear and, at times, inconsistent with the 2015 Regulations. When such inconsistency exists, the 2018 Amendments control. With this tenet in mind, we provide the following summary of those recent changes to the Act that we believe may be of particular interest to Louisiana physicians. However, we strongly encourage physicians and physician practices faced, in the future, with a complaint or investigation governed by the Act to seek advice from their own legal counsel in connection with their specific circumstances.
THE PRELIMINARY REVIEW Prior to enactment of the 2018 Amendments, the Act and the 2015 Regulations provided that the Board “may” conduct a “preliminary review” to determine whether a complaint regarding a physician, whether received by the Board from a third party or initiated by the Board on its own motion, warranted formal investigation. La. Admin. Code 46:XLV § 9709(A). The 2018 Amendments now provide that the Board “shall” initiate a “preliminary review” to determine if cause exists to warrant formal investigation of a physician and only if: (a) a complaint is received from a person other than an employee of the Board; (b) a report is received from a law enforcement agency, federal or state regulatory agency, reporting authority verified by the Board chairman through electronic means or other means, or physician health program or other treatment program that contains information that supports an indication that a possible violation of the Act, or any rule promulgated in connection therewith, may have occurred; or (c) the Board, in executive session, duly adopts a motion by a two-thirds vote of the members of the Board making an affirmative finding that sufficient evidence exists to conclude that a violation of the Act, or any rule promulgated in connection therewith, may have occurred. La. R.S. § 37:1285.2(A)(1). In addition to mandating that the Board first conduct a preliminary review and only in certain circumstances, the 2018 Amendments also reduced the timewithinwhich the Boardmust complete a preliminary review to ninety (90) days, as opposed to the one-hundred eighty (180) days provided by the 2015 Regulations, although the Board is still authorized to extend the time for completion. La. R.S. § 37:1285.2(A)(2). Finally, in connection with a preliminary review, the 2018 Amendments clarify that the Board“may obtain all files and records related to the complaint and to the complainant, and may obtain no more than twenty additional files or records in connection with the review unless the board authorizes review of additional files or records.” La. R.S. § 37:1285.2(A)(3).
THE FORMAL INVESTIGATION
If, as a result of its mandatory preliminary review, the Board determines that cause exists to warrant formal investigation of
J LA MED SOC | VOL 171 | NO. 1 13
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