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Legal Services

by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the February 1994 issue of the Journal

Question: I understand that a comprehensive new licensure and discipline law will go into effect in April 1994, and that it requires health professionals to report other health professionals who may violate the law. Can you explain?

Answer: For the first time, health professionals will be required to report other health professionals to the state licensure authorities. This applies to all licensees who have "knowledge" that another licensee or registrant has committed a violation under Section 16221 or Article 7 or a rule promulgated under Article 7.

The specific section sets forth the grounds for discipline of all healthcare professionals and Article 7 relates to controlled substances. The report must specify the conduct and the name of the subject. The information reported is confidential and, unless the person making the report agrees otherwise in writing, that person's identity must remain confidential unless disciplinary proceedings are initiated and the reporting professional is required to testify.

This mandatory reporting requirement does not apply to a health professional who obtains knowledge of a violation while providing professional services to the health professional as a patient, or who is serving on a duly constituted peer review committee of a professional association or health facility.

A separate section extends this reporting requirement to a health professional who has "reasonable cause to believe" that another health-care professional is "impaired". This report may go to the Health Professional Recovery Committee or consultant, rather than the state licensing authorities, as is discussed below.

Impairment is defined in the Public Health Code as "the inability or immediately impending inability of a health professional to practice his or her health profession in a manner that conforms to the minimum standards of acceptable and prevailing practice for that health profession due to the health professional's substance abuse, chemical dependency or mental illness, or the health professional's use of drugs or alcohol that does not constitute substance abuse or chemical dependency." This section also excludes mandatory reporting in the instance of a health professional-patient relationship.

Significantly, failure to report either a known violation of the law or reasonable cause to believe that an impairment exists does not give rise to a civil cause of action for damages for failure to report. Failure to report could, however, subject the non-reporting health professional to possible administrative action. The Public Health Code also provides immunity to a person who does report in good faith.

I also understand that the new licensure and discipline law will require health professionals to provide information to patients relative to filing an allegation against the doctor for violation of the law. Can you explain this provision?

Each licensee who is in private practice must make available, upon request of a patient, a pamphlet provided by the state outlining the procedures for filing an allegation with the state under the Public Health Code. The health department is mandated to prepare the pamphlet in consultation with appropriate professional associations. Under a separate section, a hospital or other health facility must conspicuously display in the patient waiting areas and other common areas copies of such a pamphlet outlining the procedures for filing a complaint against a health facility. The original draft of the legislation required individual private practitioners to also conspicuously display the pamphlet. This was replaced with the less onerous requirement at the insistence of health care professionals and their representative organizations, including the MDA.

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