By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
In 2010, the American Board of Internal Medicine (ABIM) sanctioned 139 physicians for seeking out and sharing board examination questions with a testing preparation company. For the physicians involved in that cheating scandal, disciplinary action taken by the ABIM included revocation of board certification or suspension of certification for one to five years, depending on the severity of the offense. The ABIM also reported these actions to state medical boards. The ABIM routinely takes such actions against physicians, investigating any similar type of “misconduct” or “irregular behavior” which it comes across.
Recommendations to the individual physician (“Physician”)who finds himself or herself in receipt of a letter notifying of investigation or possible disciplinary action from the ABIM:
1. Retain the services of an experienced healthcare attorney who is familiar with such matters, immediately. The American Health Lawyers Association or your state bar association are good sources. Ask for a referral of a health lawyer who represents physicians.
2. Avoid e-mailing or discussing your situation on any listservs or blogs. You do not know how many places such communications may wind up and your complete identity will be easily determinable.
3. Be completely candid with your attorney and reveal all facts, documents and prior communications that have occurred. Your attorney cannot effectively represent you otherwise.
4. Do not let any deadlines go by without requesting, in writing, via a verifiable method (not e-mail) that you have requested a review, hearing, appeal or other due process rights. “Verifiable” means sent by a method that can be tracked and receipt of which is documented (e.g., U.S. express mail with a return receipt requested, Federal Express, etc.). It does not hurt to send by two or three different methods.
5. If there is documented proof that you have actually been involved in a compromise of the examination, sometimes it will be advisable to admit this to the committee, produce any mitigating factors, apologize and propose a less harsh sanction (note: this will be contrary to what most defense attorneys would ordinarily recommend.) In the face of convincing evidence that you breached the rules, this may be the most reasonable and least damaging course to pursue. Discuss this with an experienced health care attorney first, though.
6. Review any employment contracts, independent contractor agreements, provider agreements with third-party payers and medical staff bylaws (for hospitals at which you have privilege) with your attorney to determine if you are required to report this event.
7. Advise your employer (or prospective employer) of the situation and offer to do whatever is required to help alleviate any problems this causes to your employer.
8. See if your employer (or prospective employer) would be amenable to negotiating an amendment to the terms of your employment, including different duties, more supervisory, administrative or managerial duties, lower salary, etc., if necessary. Also consider requesting a postponement of starting date, leave of absence, sabbatical or other alternatives to full-time employment.
9. Explore charitable work and community service opportunities, such as service in community health clinics, volunteering in free/charity clinics and hospices, volunteering for overseas medical organizations such as Physicians without Borders, service in medically under served areas, and similar opportunities. This might also serve as a basis to convince ABIM to reduce the period for retaking the exam or becoming certified.
10. Every individual, every case and every situation is unique. You should consult with your attorney on every issue and follow his or her advice.
Recommendations to the employer or prospective employer of a Physician who has received notice from ABIM that he or she will not be certified:
1. Consult your health care attorney regarding the matter immediately.
2. If your contract with the Physician requires him or her to be board certified (as almost any well-written contract will require) and it does not appear he or she will be able to meet this requirement, this will most likely be grounds to terminate or void the contract.
3. Attempt to obtain complete information from the Physician on what his or her exact circumstances are and whether or not he or she is likely to become certified in the near future.
4. The easiest and least expensive resolution may be to terminate the Physician’s contract, if the contract provides for this. A voluntary agreement from both parties or voluntary resignation by the employee may be the least harmful way out. The more complex and more expensive resolution may be to negotiate an amendment to the Physician’s contract and to try to find alternative duties for the Physician.
5. If it looks like you will be terminating or voiding the contract, start looking for a replacement physician right away. (The law requires you to mitigate your damages.)
6. If you have a medical group, use group numbers to bill third-party payers, and the physician is a member of your group or is a participating physician on the panel of the payer, review your provider contracts to determine if you must report this or take action to avoid having the payers patients treated by the physician.
To read further on the cheating scandal in 2010, click here to read my prior blog.
Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.
The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in investigations and hearings of all types. This includes board certification hearings, medical board hearings, Drug Enforcement Administration (DEA) hearings, Food and Drug Administration (FDA) hearings, medical staff peer review and clinical privileges hearings, FBI Investigations, DOJ Investigations, Drug Enforcement Administration (DEA) investigations, Medicare and Medicaid overpayment demands and hearings, and other types of investigations of health professionals and providers. We also undertake civil litigation in the same types of cases.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
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