Attached is an annotated version of a letter I sent to the Board of Physicians (Board) regarding its proposed new regulations on mandatory hospital (and other healthcare facilities) reporting of any changes in privileges and employment related to their physicians.

Previously, the Council of the Health Law Section of the Maryland Bar Association wrote the Board to protest its unilateral change in policy (the "2014 Policy") requiring hospitals, ambulatory surgical centers and other "employers" to report "all and every" change in physician privileges and employment to the Board. The policy change was to be implemented by simply taking down the old reporting policy on the Board’s website and putting up the new policy.

The Board appeared reluctant to address the concerns raised in my letter. However, this month, without any further notice to interested parties, the Board proposed to now implement its policy change by regulation.

The proposal was termed a draft (Draft) and was not emailed or published anywhere except the Board website. I found this Draft by mere luck and briefly discussed it with Scott. With only 5 days left to respond, I prepared the enclosed letter to the Board identifying the most obvious problems and deficiencies found in their Draft. I hope our Section will write the Board adopting this letter.

In addition to many of the problems evident in the Draft, the status of the Board’s requirements on hospital reporting and applicable law is now, also, entirely confused. For instance, the Draft grants some relief from reporting a physician who goes on maternity leave or a physician who self-limits with respect to specific procedures, but the Board’s 2014 Policy still states these changes need to be reported. The 2014 Policy also oddly requires reporting when no action is taken against a physician as in the Board’s training directive below:

Question 15: If there is an adverse incident (such as a wrong-site surgery) but the root cause analysis committee of the hospital does not find the physician at fault, is that reportable?

Answer: Yes. This should be reported because the incident impacts the practice of medicine and the health, safety, and welfare of the public. It is the Board, not the facilities, that determines from the facts whether or not the underlying circumstances constitute reasons that might be grounds for disciplinary action under the Maryland Medical Practice Act.

Last, it is thoroughly impossible for a hospital to unravel years of action based on Board instructions that preceded the 2014 Policy, even further complicated by the overlapping non-retroactive effect of the Draft. So, for instance, see the Board’s training directive below:

Question 17: How far back do you have to go if a facility has not been reporting?

Answer: Facilities are mandated by law to report all reportable actions. The mandated reports should have been reported from the time a physician obtained or applied for privileges or contractual status with the facility. If a facility has not been submitting the mandated reports, the facility must submit all the outstanding reports to the Board because the statutes require the reporting of all reportable actions.

One last problem this 2014 Draft creates is that it is entirely inconsistent with but nevertheless connected to the National Practitioner Data Bank reporting requirements. Thus, among other issues, it is entirely uncertain what hospital reports made to the Board will end up becoming part of a practitioner’s profile.

It is suggested that this Section write the Board and obtain agreement that hospitals can be guided by the reporting exceptions in the 2014 Draft and do not need to review all its hiring and privilege actions unless final regulations, when adopted, give clear guidance on what actions were and remain reportable.