Five Years Post-Bradley

Written By Joanne Ceballos 

Five years ago, on September 1, 2010, one of the nine “Bradley” bills, House Bill 459, took effect in Delaware.  Among other things, this bill clarified the obligations of hospitals to report any disciplinary action affecting a physician’s privileges, the obligations of law enforcement to report unprofessional conduct by a physician, and that a physician’s failure to report unprofessional conduct of another physician is itself unprofessional conduct.  Subsequent legislation incorporated “failure to report” into the definition of “unprofessional conduct” applicable to other health care professionals as well. 

The Delaware Division of Professional Regulation’s website includes links to lists of physicians and nurses who have been publicly disciplined.  The physician list dates back to 1963, the nurse list back to 1990.  As one might expect, the number of physicians and nurses who were disciplined by their respective professional boards increased dramatically beginning in 2010.  With respect to physicians, prior to 2010 the highest number of physicians disciplined by what was then the Board of Medical Practice was 10 physicians in 2008.  Of the ten physicians disciplined that year, two of them had their licenses revoked.  In 2010, 15 physicians were disciplined, and while no licenses were revoked in 2010, 12 physicians received some type of suspension, including six emergency temporary suspensions.  According the DPR’s list, from 1963 through 2009, a total of only 11 physicians (including Earl Bradley) had their licenses suspended (although 24 licenses were revoked during the same time period, with the highest number of revocations being 4 in 2007).  Below are figures for physician disciplinary actions for the period from 2011 to the present (the DPR last updated the physician list on August 25, 2015):

Year	Physicians Disciplined	Suspensions	Revocations
2011	22	7	1
2012	23	5	2
2013	35	6	3
2014	34	3	4
2015	17 (to date)	1	2

As illustrated above, in 2011 and 2012, the Board of Medical Licensure and Discipline sanctioned double the number of physicians it had disciplined during its former peak year of 2008, and three times as many physicians in 2013 and 2014 as it had in 2008.  While the number of suspensions increased more or less proportionately (the 12 suspensions imposed in 2010 being somewhat of an aberration), the number of revocations did not.  Thus the figures indicate that while more violations of the physician licensing statute and regulations are being reported and investigated, there has not been a concomitant increase in violations that merit the most serious sanction of revocation.

The list of publicly disciplined nurses also shows a jump in the numbers beginning in 2010.  Prior to 2010, the highest number of nurses publicly disciplined in a given year was 43 in 2005, with the Board of Nursing suspending seven and revoking two licenses.  After 2005, the number of disciplinary actions declined steadily to 14 in 2009, when the Board revoked one license and suspended one license.  In 2010, the Board disciplined about two and a half times as many nurses as it had in 2009, suspending 16 of them and revoking 6 licenses.  The figures for the period from 2010 to the present are as follows (the DPR last updated the nurse list on August 17, 2015): 

Year	Nurses Disciplined	Suspensions[1]	Revocations
2010	39	16	6
2011	47	13	4
2012	68	14	4
2013	83	42	3
2014	68	26	0
2015	69 (to date)	17	0

 

While the Board of Nursing had imposed at least one suspension every year from 1990 through 2009, the number of suspensions in proportion to the total number of disciplinary actions in a given year was generally less than a third.  In 2009, however, over 40 percent of the sanctions imposed were suspensions, and half the sanctions imposed in 2013 were suspensions.  As with physicians, however, the number of revocations did not increase proportionately to the number of disciplinary actions.

The tables above demonstrate that since the Bradley legislation was enacted, the total number of disciplinary sanctions imposed on physicians and nurses was the highest in 2013    (thus far).  It remains to be seen whether the numbers will level off or decline in the coming years. 

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[1] “Temporary suspensions” and “Stayed suspensions” are not included in the below figures.

New Guidance on Mobile Device Security for Health Care Providers

Written By Joanne Ceballos

At the end of July the National Institute of Standards and Technology of the U.S. Department of Commerce (“NIST”) released a draft practice guide, Securing Electronic Health Records on Mobile Devices, that demonstrates how health care IT professionals can use existing technologies, including commercially available and open source tools, to better protect electronic protected health information (“ePHI”) systems and facilitate secure sharing of ePHI through mobile devices.  According to the guide, the full text of which is available here, “many health care providers are using mobile devices in health care delivery before they have appropriate privacy and security protections in place.”  The guide is intended to provide a technical roadmap for achieving HIPAA-compliant use of mobile devices by health care professionals.

In order to arrive at their recommended solution, which can be implemented as outlined in the guidance or customized to a particular health care provider’s IT environment, NIST simulated interaction among mobile devices and an EHR system supported by the IT infrastructure of a medical organization.  They tested hypothetical scenarios in which a primary care physician uses a mobile device to send a referral containing a patient’s clinical information to another physician, to send an electronic prescription to a pharmacy, or to add information to a patient’s electronic health record.  In each scenario the mobile device interacts with an EHR system.

Health care providers using mobile devices to access or transmit patients’ ePHI are well-advised to confirm that their IT professionals are familiar with the guide’s recommendations.  Business Associates of health care providers who access or transmit ePHI via mobile devices should also consult with their IT personnel to determine whether those recommendations should be implemented by the Business Associate.  

Comments of the draft guidance may be submitted to NIST by September 25, 2015 via e-mail at HIT_NCCoE@nist.gov.         

Governor Markell Signs Delaware Medical Orders for Scope of Treatment Act

 Written By Joanne Ceballos 
On May 28^th Governor Markell signed House Bill No. 64, the Delaware Medical Orders for Scope of Treatment or “DMOST” Act.  The legislation establishes a clinical process to facilitate communication between an adult patient with a “serious illness or frailty” and the patient’s physician (or other health care practitioner licensed to write medical orders under Title 24 of the Delaware Code) who “would not be surprised if [the patient] died within the next year” regarding what life-sustaining treatments, if any, the patient wishes to receive.  Based on that consultation, the legislation allows the physician to complete a DMOST form documenting the patient’s wishes as a medical order intended to be honored by personnel attending the patient in any health care setting, including the patient’s home, a health care institution, or by emergency personnel.

The legislation makes clear that a DMOST form differs from an advance health care directive.  While an advance health care directive may be made by any adult and is intended to express the individual’s preferences with respect to life-sustaining treatment in the event the individual is incapacitated, a medical order is required to give effect to those preferences, and a new order must be issued if the individual is transferred from one health care setting to another.  The DMOST form, on the other hand, is a medical order that is intended to be effective in any health care setting, whether or not the individual is incapacitated, although a patient with decision-making capacity may at any time void the DMOST form or otherwise request treatment different from that specified on the form. The legislation also provides that a DMOST form may be completed after consultation between an individual’s physician and the individual’s authorized representative if the individual lacks capacity. 

Health-care practitioners and providers, institutions, and emergency-care providers (as all defined by the Act) have an obligation to treat a patient who has a completed DMOST form in accordance with the directions and options indicated on such form, except as otherwise provided in the Act.  In addition, the legislation provides guidance regarding how conflicts between health-care practitioners and a patient’s authorized representative may be resolved and how conflicts between an advance health care directive, a DMOST form, a patient’s expressed oral or written directives, or the decisions of a patient’s authorized representative should be resolved in determining the scope of treatment.  The failure to act in accordance with the Act’s requirements can result in professional discipline and civil monetary penalties.

The bill authorizes the Department of Health and Social Services to promulgate regulations regarding the process for completion, modification and revocation of the DMOST form as well as directing the Department to prepare a standard DMOST form.  It also requires Delaware health care providers to honor a medical order form executed in another state if it is valid under the laws of that state or meets the requirements for a valid DMOST form.  A majority of states have enacted legislation similar to the DMOST Act, although they may refer to it as POLST (“Physician’s Orders for Life Sustaining Treatment”), MOLST (“Medical Orders for Life Sustaining Treatment”), or a like term.  In fact, regulations of the Delaware Department of Public Health previously permitted Delaware health care providers to use a MOLST form, but in 2013 the Department directed Delaware health care providers to stop using the form due to concerns that it was being used beyond the parameters specified in the regulation.  The DMOST Act, and regulations promulgated thereto, should provide more clarity about the proper use and function of the DMOST form. 

The DMOST Act takes effect upon the adoption of regulations by DHSS which the bill specifies will occur no later than a year from the legislation’s enactment.  Click here to review the full text of the DMOST Act.