the applicable physician, the 2018 Amendments now provide that the Board “shall” appoint a “director of investigations to act as the lead investigator for any complaint regarding a physician” otherwise subject to the Act. La. R.S. §§ 37:1270(A) (9). This director of investigations shall (a) serve at the pleasure of, and be answerable directly to, the Board, (b) not concurrently serve as the Board’s executive director, and (c) be a physician licensed to practice in Louisiana, who has engaged in the active practice of medicine for at least five (5) years. Id. Presumably, this “director of investigations,” who must be a licensed Louisiana physician, replaces the “lead investigator” referenced in the 2015 Amendments, who could be any staff member of the Board, except the Board’s executive director.
CONSENT ORDERS The 2015 Regulations provide that before, during or following an investigation, or after filing an administrative complaint, the Board may dispose of any complaint through informal disposition. See La. Admin. Code 46:XLV § 9713. Informal disposition includes informal settlements and consent orders. The 2018 Amendments now require that prior to offering a consent order to a person licensed by the Board, the Board shall make available to that person all files and records which pertain to the case against him or her—and which are not required by law to remain confidential or are otherwise privileged—except that the Board may object to making particular files and records available – which objection may (or may not) be overruled by the independent counsel. La. R.S. § 37:1285.2(F)(1). SITE VISITS AND MEDICAL RECORDS REQUESTS OUTSIDE OF ACTIVE INVESTIGATIONS The final amendment of note for physicians concerns action that may be taken under circumstances in which physicians are not subject to (or not yet subject to) an active investigation under the Act. Specifically, the 2018 Amendments provide that the Board may only conduct a site visit concerning, or request medical records from, an individual licensed by the Board who is not subject to an active investigation if the executive director of the Board first requests, and ultimately obtains, approval therefor by a duly adopted motion of two-thirds vote of the Board, meeting in executive session. La. R.S. § 37:1285.2(D)(1). The 2018 Amendments further provide that the executive director’s request for such approval must include the basis uponwhich the site visit or records request is warranted, the number of records to be requested, if applicable, the date, time, and anticipated length of the proposed site visit, and the dates of any previous sitevisits. Id. Significantly, the2018Amendments alsomake clear that the Board “shall” be prohibited from disclosing the identity of any individual included in any such request for approval, while clarifying that these provisions are applicable to practice performance reviews of physicians practicing telemedicine.
THE ADMINISTRATIVE COMPLAINT
If, as a result of its formal investigation, the Board determines that there is sufficient information and evidence to indicate that a violation of the law has occurred, an administrative complaint may be filed with the Board against the applicable physician. La. Admin. Code 46:XLV § 9711(G). In connection with such a complaint, the 2018 Amendments now provide additional rights and protections for the applicable physician. Significantly, these rights and protections often require action by the “independent counsel,” which although not defined within the Act, presumably refers to legal counsel that may assist the Board and who otherwise “is independent of complainant counsel” and “has not participated in the investigation or prosecution of the case.” See La. Admin. Code 46:XLV § 9921(D). In any event, the 2018 Amendments now provide that, in connection with the filing of an administrative complaint, (a) the Board “shall” notify the applicable physician that he or she has the right to face any complainant at the administrative hearing unless the independent counsel, after reviewing all evidence related to the complaint submitted by the complainant and physician, rules that the complainant may remain anonymous – which ruling may be overruled by a duly adopted motion of two- thirds vote of the Board, (b) all files of the Board regarding the complaint which are not required by law to remain confidential or which are not otherwise privileged shall be made available to the applicable physician (although it is unclear whether the physician must engage in formal discovery to obtain these files or may simply request such files), (c) any evidence which may potentially exculpate the applicable physician shall be disclosed to the physician whether or not requested and whether or not reduced to recorded or documentary form (emphasis added); and (d) all relevant information, documents, and records gathered in an investigation of the applicable physician shall be noted in the record or file of the case, except that the Board may object to including particular material in the record or file of the case – which objection may (or may not) be overruledby the independent counsel. La. R.S. § 37:1285.2(E) and (F)(2). The 2018 Amendments also provide that the Board “shall” notify the applicable physician (and his or her counsel) if the Board intends to use records from any prior investigation of the physician in a current case, which records shall then be deemed records of the case otherwise subject to certain provisions of the Act (although it is unclear whether or how any conflict with such other provisions will be resolved). La. R.S. § 37:1285.2(F)(3).
Disclaimer: The information provided herein (1) is for general information only; (2) does not create an attorney-client relationship between the author or the author’s firm and the reader; (3) does not constitute the provision of legal advice, tax advice, or professional consulting of any kind; and (4) does not substitute for consultation with professional legal, tax or other competent advisors. Before making any decision or taking any action in connection with the matters discussed herein, you should consult with a professional legal, tax and/or other advisor who should be provided with all pertinent facts relevant to your particular situation. The information provided herein is provided “as is,” with no assurance or guarantee of completeness, accuracy, or timeliness of the information.
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