North Carolina Medical Board disgraced… again.

Dear (member of the media),

I’m a regular follower of Modern Physician and thought your magazines might be interested in the following developing story.

The State Auditor of North Carolina (NCOSA) has just released the results of a year-long performance audit concerning the North Carolina Physician Health Program (NCPHP) and its oversight (or lack of) by the North Carolina Medical Board (NCMB) and the North Carolina Medical Society (NCMS).

This audit was initiated because several psychiatrists became increasingly concerned about allegations of coerced treatment based upon alleged fraudulent diagnosis by NCPHP.  They attempted to take their concerns both to the NCPHP Board as well as NCMB, the medical licensing board.  Their concerns were repeatedly brushed off.  As they learned that this appeared to be more than an isolated event, they approached the Governor of North Carolina whose Chief of Staff was sufficiently alarmed to refer them to the NC State Auditor.  After discussion with the State Auditor, she decided to assign a performance audit team initially to investigate NCPHP.  However, as developments ensued, the focus of the audit was expanded to include NCPHP’s relationship with the medical board and the medical society.  All physicians are licensed and subject to the regulations of the medical board, and in NC, under a formal signed agreement between and among NCMS, NCPHP and NCMB, all physicians may be subject to some form of “assessment” by the NCPHP. (The nebulous nature of this “assessment” is in fact part of the problem.)

The allegations and concerns that they had were many, including NCPHP not meeting the standard of care in the community, an abuse of power by NCPHP, and a total absence of due process rights at NCPHP.  The signed agreement among the NCPHP, NCMB, and NCMS stipulates very clearly that all due process rights will be afforded to any accused physician, but it was clear that there was no due process.  There were many other concerns, such as NCPHP conducting “peer review” but not being in compliance with a federal law entitled the Health Care Quality Improvement Act (HCQIA) governing peer review and not being in compliance with the ethical standards of the American Medical Association and numerous other professional organizations.

While the audit appears to be extensive and have broad implications (see my commentary below), this is more than just a story about a routine audit of several state regulatory agencies.  Rather, it is about state regulatory agencies having extraordinary power over physicians’ lives and careers, about state regulatory agencies that give the perception of having internal checks and balances but do not, about state agencies that are supposed to have oversight but do not, and about the nightmare of physicians routinely being ensnared by such an out-of-control system and having absolutely no recourse of action.

We believe that this story ought to be of interest to physicians nationally.  Many legal interest groups and physician and healthcare provider groups throughout the U.S., as well as insurers and government watchers will find much to be alarmed about and yet encouraged by this story.  Admittedly, it is a complex story and would probably be best if it were delivered in a series of expository pieces.  This is not just a story about physicians battling with their licensing board, nor is it just a story about the heroic intervention of an investigative state agency which mobilized the resources to thoroughly investigate wrongdoing and set the pathway for necessary change.  It is also a story of how physicians can get caught up in a Kafkaesque nightmare in which anonymous complaints are received by a state agency, there is no investigation to determine the veracity or integrity of the complaint, and the physician ordered for an involuntary “fitness for duty” psychiatric evaluation, then diagnosed with an illness or syndrome when the physician does not meet the diagnostic criteria for that alleged illness or syndrome.  The physician is denied all due process rights, cannot get access to the anonymous complaint, cannot examine or cross examine witnesses, and cannot get a second opinion consultation. He may be ordered then by his Board to attend a costly out-of-state evaluation and treatment program which contributes to the PHP and which features a polygraph expert on staff. And afterwards, he may find himself given the “choice” of signing a costly multiple year “monitoring” contract with NCPHP or risk being reported to NCMB, and then the public, as a disruptive physician, a substance abuser or mentally ill.  In short, a physician can, on the basis of an anonymous complaint with absolutely no vetting of the complaint, or even on the Board’s own motion, find himself in immense difficulty for years.

It is important to stress that these wrongdoings are not limited to the immediate past.  They may have been going on for the past decade.  Perhaps as many as 1000 physicians have been subjected to these abuses of power and process. (That is not to say that none may have some underlying problem, only that all have been deprived of requisite due process.) One physician asked the Medical Director of NCPHP to state in writing why he was being detained in the NCPHP “Program” when the physician did not meet the diagnostic criteria for any illness (as confirmed by multiple independent consultants); the Medical Director refused to respond.

Overall, it appears that NCPHP has been conducting diagnostic evaluations and making diagnoses that are simply not supported by the established diagnostic criteria which are necessary to make a valid diagnosis.  NCMB repeatedly refused to meet with the concerned physicians and, worse, multiple leaders at NCMB, NCMS and NCPHP refused to talk with them at all about their grave concerns and the legal implications.

Through our contacts with physicians in other states, we have reason to believe that this pattern of abuses is occurring with alarming regularity at hands of other state licensing boards and PHPs.

I and several physician colleagues would welcome the opportunity to meet with you to discuss these profoundly important issues and to serve as a resource to you as you more thoroughly study the findings of the audit.  We believe you will be shocked at the abundant cases which substantiate our allegations; this material served as the central reference point at the outset of the audit.

While not necessary, I think it would be helpful for you to know that the physicians who brought this forward have no substance abuse or mental health problems and have not been under investigation of any kind by NCMB, NCPHP or any other group.  They had no “sour grapes” or other retaliatory agenda in trying to make things right.

(above co-written by myself and colleague Jesse Cavenar, MD)

Below is my commentary which I sent to colleagues yesterday:

The NC Auditor report on the NC Physicians Health Program (NCPHP) was released today.

Its self-limited scope was to determine if NCPHP’s program controls provided reasonable assurance that a) an abuse of its authority would be prevented or detected in a timely manner if such were to occur; and b) physicians (referred to it and any of its derivative programs to which it refers) would receive objective and quality evaluations (from it or elsewhere) without undue burden.

In essence, it found that current controls provided essentially no reasonable assurance of either.

That’s like asking a state if its nuclear weapons program has assurance of a) internal monitoring and b) well-tested fail-safes … and coming up with two negatives. How does one reveal that without creating a panic? That’s the artistry of this report.

While one would have hoped that such a comprehensive performance audit would have assessed whether existing program controls were of such a state that a) abuse of authority had in fact occurred; and b) that physicians in fact did not receive objective and quality evaluations without undue burden, it did not set that as its objective, and perhaps could not.

All considered, what it found was that:

a) there was no assurance of due process for physicians evaluated;

b) no assurance of a fair evaluation by NCPHP or its preferred programs;

c) no assurance of a fair evaluation by NCPHP or its preferred programs without undue burden;

d) no assurance of absence of one or more levels of conflict of interest;

e) no prevention of violation of medical protocol in terms of ability to access to one’s assessment report and amend it (= “no medical due process”)

f) no means to protest evaluation done by NCPHP (also “no medical due process”) as the complaint process was not explained and the complaint committee consisted of the same people who did the evaluation;

g) no internal self-monitoring controls by the NCPHP program itself or its extensive Board of Directors;

h) no external control by the two agencies legally responsible both for parenting the program and for monitoring its function (i.e. NCMB and the medical society – NCMS)

i) and, therefore, very real potential for adverse harm to career, reputation, finances [and, not mentioned, one’s patient population].

I’m writing a detailed commentary on the report which I’l send later. It’s taken quite a while to let the report’s findings (and limitations) percolate.

All said, I believe it’s a very courageous report by an independent state agency which must maintain a delicate balance amongst advocacy; neutral assessment of findings; and legal vulnerability created by its stated findings. It is clear they devoted tremendous effort to this undertaking, and spoke their truth in their frank findings.

Of course, a slew of issues went unnamed – NCMB’s protocols; the definition of a NCPHP assessment; NCPHP’s corporate licensure; the definition of “peer review” etc.

Nevertheless, this report is clear in its assessment of systemic problems which need immediate and serious attention. Now, with these very powerful results, various of us “afflicted docs” need to come together to determine next steps.

I’ve attached a copy of the report. The website for the NC Auditor is:

http://www.ncauditor.net/pub3/Default.aspx

I’d be pleased to talk with you about this and to introduce you to my colleague (vice chair emeritus of psychiatry at Duke) who was instrumental in urging the investigation.

It may also interest you to know that a number of us have formed a national association to combat abuse of authority and process by medical licensing boards and their associated physician health programs.

Thanks,

Kernan Manion, MD