Discipline of Doctors Delayed by Weeks, Months

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In early May, the Oklahoma Medical Board suspended a Midwest City doctor’s license for six months after an investigation connected two prescription overdose deaths to his prescribing practices.

But it took four weeks before Dr. Dwayne Roush’s suspension became official.

In mid-January, the medical board barred Dr. H. Peter Koenen-Myers Jr. from reapplying for his lapsed medical license after determining he had overprescribed opioids to a patient who later died of an overdose.

It took 10 weeks before the suspension went into effect, board records show.

Since 2015, some state licensure boards for health professionals have waited anywhere from two weeks to three months for disciplinary actions to become official. The delays have provoked complaints from board directors, who say when they revoke or suspend a physician’s license and weeks pass before the action takes effect, it puts public health at risk.

The delays are caused by a requirement, enacted in 2015, that the Oklahoma attorney general’s office review and approve every disciplinary action taken by the state licensure boards. Former Attorney General Scott Pruitt recommended the change in response to a U.S. Supreme Court ruling, seeking to protect the state from lawsuits alleging anti-competitive practices. Gov. Mary Fallin issued an executive order approving the process.

Directors of the state medical, chiropractic and osteopathic medicine boards have reported delays of as long as several months and raised concerns with Pruitt, though nothing changed.

“If we discipline a doctor for improperly prescribing or overprescribing … you’d like to be able to have that final decision to at least have some impact without having to wait for some time. It does raise some concern,” said Lyle Kelsey, executive director of the Oklahoma Board of Medical Licensure and Supervision.

No board director could immediately think of a case in which a doctor whose license was ordered revoked or suspended continued to practice until the action became official.  But the risk was unsettling.

Earlier this year, when Attorney General Mike Hunter replaced Pruitt, who was named head of the Environmental Protection Agency, directors raised concerns with Hunter.

In May, Hunter’s office advised the boards that they could take immediate action when it comes to emergency disciplinary rulings that might impact public health and safety. He also said his office would provide expedited review of such cases at a board’s request. He is evaluating the review system for other possible changes.

“Innocent citizens should not face potential harm while our review of board actions take place,” Hunter wrote in a letter to all state licensure boards.

Yet significant delays can still occur for less severe disciplinary actions, such as probation, requirements for doctors to change their prescribing habits, or requiring them to attend continuing education courses.

Deborah Bruce, executive director of the State Board of Osteopathic Examiners, said that while she understands any review process takes time, “my objection is to a process that slows down discipline to the doctor – any process that slows down what we are statutorily required to do.”

Despite the reviews, the attorney general’s office rarely rejects licensure boards’ disciplinary rulings. Beth Kidd, executive director the Oklahoma Board of Chiropractic Examiners, said the office has never opposed her board’s decisions. Kelsey said roughly one in 50 of the medical board’s disciplinary actions have been disputed.

How Reviews Came About

The review system traces back to actions of North Carolina’s dentistry board, which sent about 50 cease-and-desist letters to unlicensed teeth whiteners and encouraged malls to remove their kiosks. That led to an antitrust lawsuit and the U.S. Supreme Court ruling in early 2015.

In that case, North Carolina Board of Dental Examiners v. the Federal Trade Commission, the high court upheld the 2010 claims against the dental board, finding it harmed competition by attempting to knock the teeth whiteners out of the market. Licensure boards aren’t immune from antitrust laws, and states must supervise their actions to have that immunity, the court ruled.

In response, Pruitt raised concerns to Fallin and initially recommended either changing the composition of state licensure boards or giving oversight responsibilities to a state agency or officer.

Fallin issued the order giving the attorney general oversight over all licensure and prohibition decisions.

Pruitt wrote a letter to licensure boards that called the possibility of a federal antitrust suit “a significant risk” to state agencies. He described anti-competitive actions as any action that removes industry participants, including license revocations, disciplinary measures, written reprimands and fines.

As delays began to occur, several representatives of licensure boards reached out to Pruitt about the issue, but he wasn’t responsive, said Bruce, of the osteopathic board.

“Our concern was the board would have revoked a license of a physician, but we couldn’t shut the physician down on the day of the board meeting because the decision had to be reviewed,” Bruce said.

Pruitt did not respond to a request for comment.

Several board directors said their boards hadn’t had any antitrust lawsuits for the past two decades.

“What most of us think is that was an isolated case,” Kelsey said of the North Carolina board’s actions against teeth whiteners“The dental board was going after a group they didn’t license. They had no jurisdiction over those individuals.”

More Changes Possible

Hunter said his office expects to complete its evaluation of the review process soon.

“What we don’t want is to be exposed to antitrust lawsuits, but we want to make sure this oversight is proportional to and meets the requirements of the Supreme Court case,” he said.

A spokesman for Fallin referred questions to James Williamson, the governor’s general counsel. “Unless we receive different advice from Attorney General Mike Hunter, the governor’s office is not inclined to change the executive order,” Williamson said in a written statement.

The emergency review process has led to quicker responses to some board decisions from Hunter’s office.

Susan Rogers, executive director of the Oklahoma Board of Dentistry, said her agency had fewer delays than other boards because most of its disciplinary actions were emergency measures. Pharmacist Justin Wilson, the president of the State Board of Pharmacy, said the process has gone smoothly, with no delays.

Last month, the Board of Chiropractic Examiners sought an emergency suspension of the injection certification for Bernard Fuh, a Tulsa chiropractor who injected a cancer patient with drugs he wasn’t authorized to use. Afterward, the patient was hospitalized.

The area of Fuh’s office where he prepared injections was “very unsanitary” and in violation of Occupational Safety and Health Administration standards, board records show.

Hunter’s office approved the suspension within 24 hours, said Kidd, who heads the board.

“They’re making an effort to turn around the reviews of the more serious ones, but I feel like any complaint that goes through any board with regards to any license of a health professional is urgent and should be immediate,” Kidd said. “We’re talking about public health.”

Contact Mollie Bryant at mbryant@oklahomawatch.org or (405) 990-0988. Follow @MollieEBryant