Commentary on the NCOSA Audit of March 2014:

   

Specifically, we have suggestions that we believe will be helpful to all parties involved; the evaluation was a small start to addressing a huge problem.  Much more needs to be done, the majority of issues outlined on this website were totally ignored by the NCOSA despite their being provided the data.

1)    The need for transparency regarding the activities of the NCMB, NCMS, & NCPHP now and in future processes.

2)    The 4/8/14 NCOSA virtually ignores the NCMB/NCMS concentrating on the NCPHP instead.

3)    There have been numerous deaths associated with this process.  It is possible to track the deaths of providers associated with disciplinary actions.  It’s not possible to track the number of patients who have died, often-psychiatric patients who have committed suicide after the loss of their trusted, regular caregiver.

4) “The audit found no indications of abuse by (the NCPHP)...” this website clearly documents abuse by all agencies leading one to question the validity and thoroughness of the audit. However…

5)   All considered, what it found was that:

a) there was no assurance of due process for physicians evaluated;

b) no assurance of a fair evaluation by NCPHP or its preferred programs;

c) no assurance of a fair evaluation by NCPHP or its preferred programs without undue burden;

d) no assurance of absence of one or more levels of conflict of interest;

e) no prevention of violation of medical protocol in terms of ability to access to one’s assessment report and amend it (= “no medical due process”)

f) no means to protest evaluation done by NCPHP (also “no medical due process”) as the complaint process was not explained and the complaint committee consisted of the same people who did the evaluation;

g) no internal self-monitoring controls by the NCPHP program itself or its extensive Board of Directors;

h) no external control by the two agencies legally responsible both for parenting the program and for monitoring its function (i.e. NCMB and the medical society - NCMS)

i) and, therefore, very real potential for adverse harm to career, reputation, finances [and, not mentioned, one’s patient population].

j) The NCOSA report is soft-spoken and requires that one must “read between the lines”; it’s unclear in many    respects.

6)    “Abuse could occur and not be detected…” At least this is admitted and indeed appears to be true.

7)    “…The Clinical Director excessive influence over the process for reviewing physician complaints, physicians were not allowed to effectively represent themselves when disputing evaluations.”  The NCPHP claimed to be providing “Peer Review” yet did NOT follow the requirements for Peer Review.  Their evaluations were a sham designed to funnel practitioners to their “chosen” evaluation centers without recourse.  The report admits that the Clinical Director is responsible for dealing with complaints about his own program; he can easily bury these complaints and has ample opportunity for retribution against any who complain despite being intimidated by the process.

8)    “The NCMB did not periodically evaluate the program…”.  True.  Evaluation by a corrupt agency would likely not provide any insight or significant change in the process.

9)    “The North Carolina medical Society did not provide adequate oversight.”  True.  Yet the NCMS has long arranged that NCMS members were treated differently by the NCMB as documented on this site.

10) “The program created the appearance of conflicts of interest…”  Appearance?  This statement appears to be “watered down”!

11) “…That physicians received quality evaluations and treatment…”  The NCPHP has been funneling practitioners to it’s “chosen” evaluation and treatment centers for years without giving the practitioner any recourse to utilize additional treatment facilities.  This has only been challenged once, challenged successfully, from the NCMB's own website.

12) “Treatment centers had a potential interest in evaluation outcomes because the treatment center could change thousands of dollars if a physician was found to need treatment and chose to stay at the center that provided the evaluation.”  There was no “choice” provided!

13) “State law requires due process procedures for peer review activities…”  This has been completely absent in the opinion of many participants of the NCPHP and licensees of the NCMB, which also fails to provide due process—a problem unaddressed by the audit.

14) The NCMB maintains physicians for months to years without formal charges in either a “Non-Practice Agreement” or “Voluntary Surrender of License” that have been obtained through duress and coercion.  These physicians are then forced to sign untruthful and inflammatory “Consent Orders” in order to return to practice.  If they fail to do so, they are held out of practice for years, accumulating debt, lost income and damaged reputation.  Those who sign these untruthful and unjust “Consent Orders” are then reported to the National Practitioners Databank where their professional career will be hampered for the remainder of their career.

15) The need to utilize the expertise of those who have been adversely affected and who have studied this issue intensively so that the system can be optimally corrected to the benefit of all.

16) In the interim of instituting these changes which assure due process and clarity/transparency about all board processes and before any anticipated future audit review, there needs to be an overseer outside of NCMB ensuring that changes take place in an efficient, comprehensive and transparent manner.

17) The NCMB, especially it’s legal department has a corporate culture of corruption.  We would encourage replacement of the entire legal division and probably the members of the Board themselves.  The Board Members are responsible per the “captain of the ship” premise; they bear responsibility for the actions of those that are responsible to them.

18) There should be an ombudsman independent of the board who advises any practitioner who has been brought into the purview of the board on board processes and rights and who can expedite an immediate complaint process in the event that protocols and rights have been violated.

19) While these are future oriented, an abiding and heartfelt concern is bringing justice, fairness and restoration of career to those who have been adversely affected by these grossly unfair actions involving NCMB and NCPHP and perhaps other parties.

20) There needs to be an independent "truth and justice" commission which will examine from the beginning of these illegitimate actions, whenever they are likely to have occurred (perhaps a decade or more ago), which will review, case-by-case, in an exquisitely sensitive and confidential manner each of the cases of the licensees who have been harmed.  This commission needs to interview providers harmed by the NCMB with special attention to the “Consent Orders”; the consent orders were coerced and signed under duress.  They rarely reflect the actual events and circumstances portrayed as they were written up by the NCMB legal staff in a manner that slanted the information presented.

21) A moratorium on consent orders should be considered.  This would put the members of the Board in better touch with the practitioners who MAY need discipline, restoring the function of the Board to what was originally intended for it to achieve it’s mission.

22) As part of this commission, consideration needs to be given to investigating any adverse impact on patient care that also resulted from physician career interruption. Attention needs to be given to how to most sensitively examine these issues. Amends need to be made, whether they are financial or some other manifestation of contrition and promise of goodwill.  Part of this amend process should include notification of the National Practitioners Databank of errors made, with names of those unjustly harmed removed from that database.  This investigation of adverse patient care impact also needs to look at what patient harm has happened; the Board’s responsibility is to ensure patient safety.  The vast majority of severe, inappropriate (in the eyes of this group of practitioner/licensee) actions against licensees happened in the absence of patient harm.  

23) It would be understandable if the state government were very reluctant to impanel such a commission. However, this would seem more expeditious and practical rather than having a private commission undertake these efforts in an adversarial and litigious manner. Such would consume inordinate resources, financial and otherwise, and would probably tie up the state's legal and other resources for the greater part of a decade. The goal here is to make amends, correct the system and move forward.

24) In fact, this could be a prime opportunity for this state to show leadership in its capacity to acknowledge its shortcomings and be an example of a state willing to take such ownership and make reparations.  It can also give NC an opportunity to provide a template for future actions in other states with similar issues to the Federation of State Medical Boards.

25) Clearly this issue worsened under Gov. Perdue’s watch.  Gov. McCrory should take the high road on this matter, step up to the plate and deal with it effectively, decisively, fairly.  It is of concern that the audit results were distributed to the NCMB, NCMS, NCPHP in January 2014 and the results have still not been made public almost 4 months later.

26) It is fair to say that what has been revealed about these deficient processes that resulted in such broad harm to physicians and patients and all their families and their communities is – and ought to be – greatly embarrassing for the state. The state could show great leadership in advancing the cause of healing by undertaking such a boldly assertive truth and justice commission.

27)  Other states have similar deficiencies.   Once the details of this audit are publicized. This would be a prime opportunity for the state to devote resources to assembling a panel of experts from multiple sectors - law, medicine, admistrative, justice, federal regulatory … who have intensively studied this issue as a nonpartisan task force to make themselves available to other states in helping them comprehensively examine their flaws and vulnerabilities and correct their similar systems to the benefit of all.

28) Gov. McCrory should direct Attorney General Cooper in the need for a State Bureau of Investigation in-depth study of those involved in these criminal actions.  Replacement of personnel and criminal charges as indicated should be levied both for the sake of justice and to serve as a deterrent for future wrongdoing by their replacements.  The scope of this problem violates the Federal RICO statutes. The entities involved would include all of those involved/implicated in malfeasance and criminal negligence from all agencies investigated.

29) There needs to be a mechanism in place that if false accusations are made against a provider, the accuser will be held liable and will be prosecuted by the state for the false charges which will cost money to investigate etc.  The state should be able to have recourse against the false accuser.

30) The role of the NCMS needs to be re-examined.  The 2007 lawsuit  aimed at severing the ties clearly did not work, strong prejudices remain.  There may be a role for the NC Institute of Medicine either transitionally or in a more permanent capacity, but something needs to be done!

31) Finally a review of NCMB actions going back 6 months was undertaken as demonstrated below, there has been a lessening in the number and severity of disciplinary actions since the NCOSA study was begun.  New disciplinary actions seem to be treated more leniently than actions that began before the NCMB became aware of the NCOSA investigation; this needs to be carefully re-examined and corrected:

32) August 2013 Actions; 19
  

a.     Licensure loss-3
        

b.     Indefinite Suspensions-3

c.     Suspension-0
       

d.     Reprimands-3

e.     Fines-0
          

f.      Public Letters of Concern-4


33) September 2013 Actions; 16
         

a.     Licensure loss-3
        

b.     Indefinite Suspensions-2

c.     Suspensions-1
           

d.     Reprimands-0

e.     Fines-2
         

f.      Public Letters of Concern-4


34) October 2013 Actions; 25
 

a.     Licensure loss-3
        

b.     Indefinite Suspensions-6

c.     Suspensions-1
     

d.     Reprimands-3

e.     Fines-2
          

f.      Public Letters of Concern-6


35) November 2013 Actions15 (NCMB included in NCOSA investigation of NCPHP)
         

a.     Licensure loss-0
           

b.     Indefinite Suspension-1

c.     Suspension-1
        

d.     Reprimands-2

e.     Fines-0

f.      Public Letters of Concern-10


36) December 2013 Actions; 10
          

a.     Licensure loss-1
        

b.     Indefinite Suspensions-2

c.     Suspensions-0
           

d.     Reprimands-2

e.     Fines-0
         

f.      Public Letter of Concern-1


37) January 2014 Actions 12
  

a.     Licensure loss-2
        

b.     Indefinite Suspension-0

c.     Suspensions-0
       

d.     Reprimands-2

e.     Fines-2
          

f.      Public Letters of Concern-0


38) February 2014 Actions; 18
           

a.     Licensure loss-0
        

b.     Indefinite Suspensions-2

c.     Suspensions-0
           

d.     Reprimands-3

e.     Fines-0
         

f.      Public Letters of Concern-4

39) March 2014 Actions;

 

Trends in NCMB Disciplinary Actions

 

 

There is concern among numerous parties, especially regarding;

§ 147-64.6B. Reports of improper governmental activities

(b) The Auditor shall investigate reports of allegations of improper governmental activities of State agencies and State employees within the scope of authority set forth in G.S. 

147-64.6, including misappropriation, mismanagement, or waste of State resources, fraud, violations of State or federal law, rule or regulation by State agencies or State employees  administering State or federal programs, and substantial and specific danger to the public health and safety. When the allegation involves issues of substantial and specific danger to the public health and safety, the Auditor shall notify the appropriate State agency immediately

When the Auditor believes that an allegation of improper governmental activity involves matters set forth in subdivisions (1), (2), or (3) of this subsection, those matters shall be referred as follows: 

(1) Allegations of criminal misconduct to either the State Bureau of Investigation or the District Attorney for the county where the alleged misconduct occurred. 

(2) Allegations of violations of Chapter 138A, Chapter 120C, and Article 14 of Chapter 120 of the General Statutes to the State Ethics Commission. 

(3) Allegations of violations of Chapter 163 of the General Statutes to the State

 

There have been deaths associated with, possibly directly attributed to the actions of one or more of the entities being investigated.

There has been criminal activity in terms of fraud, misrepresentation, and violation of state and federal statutes by the three entities investigated.

There have been ethical violations by all entities.

 

The NC Office of the State Auditor is charged to respond immediately in matters related to public health and safety.  This office is indirect violation of this directive.

Months have elapsed since completion of the audit.  The final, formal report was not issued until April 8k 2014, in apparent violation of § 147-64.6B. (b) Among other statutes.

 

Will litigation or federal assistance be required to obtain the results of the audit or is it forthcoming?

 

§ 147-64.6. Duties and responsibilities.

(14) The Auditor shall notify the General Assembly, the Governor, the Chief  Executive Officer of each agency audited, and other persons as the Auditor  deems appropriate that an audit report has been published, its subject and title, and the locations, including State libraries, at which the report is available. The Auditor shall then distribute copies of the report only to those who request a report. The copies shall be in written or electronic form, as requested. He shall also file a copy of the audit report in the Auditor's office, which will be a permanent public record. 

(19) Whenever the Auditor believes that information received or collected by the Auditor may be evidence of a violation of any of the provisions of Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, or Article 14 of Chapter 120 of the General Statutes, the Auditor shall report  that information to the State Ethics Commission and the Secretary of State as appropriate. The Auditor shall be bound by interpretations issued by the State Ethics Commission as to whether or not any information reported by the Auditor under this subdivision involves or may involve a violation of 

Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, or Article 14 of Chapter 120 of the General Statutes. Nothing in this subdivision shall be construed to limit the Auditor's authority under subdivision (1) of this subsection.