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Will FMA defeat its former president in Legislature?

When doctors are arrested or indicted for “pill-mill” violations, the public expects the state health agency to act. But often, it can't move until there is a conviction, which can take years.

A TV report last summer said: "Doctors accused of drug trafficking continue to treat patients," which made the Department of Health and Board of Medicine look incompetent. Such reports don't mention restrictions written into Florida law.

Now, DOH and its chief, Surgeon General Frank Farmer, are trying to do something about them.

This week, legislative committees approved bills that would give DOH easier access to law-enforcement records and give Farmer the authority to issue an emergency restriction after an arrest.

But the bills still face powerful opposition from the Florida Medical Association and others. FMA says the restriction should wait for "due process" to play out, since the accused doctor may later be found not guilty.

Farmer, who was president of FMA in 2001, said this morning in a phone interview that he understands the desire to protect doctors who are unfairly accused.  But his mission, he said, is to "protect the public."

Make bail, go back to work

One of the most bizarre examples of the disconnect between law-enforcement and state licensure occurred last February, with a Drug Enforcement Administration crackdown on South Florida pain clinics called “Operation Pill Nation.”

 At a press conference, the DEA released the names of 32 Florida doctors caught in the sweep and said the agency had revoked their licenses to prescribe narcotics.
 
But in May, as Health News Florida reported, two dozen of those doctors still had clear and active state medical licenses, with no pending complaints. At least three were still in active practice.

Florida statutes don’t always make it easy for DOH and the professional boards that it supports to do their jobs. Among other things, the law doesn’t even allow the agency to run criminal background checks on most of the professions it licenses, and law enforcement hasn’t had to report the arrests of health professionals to DOH.

DOH has had to depend on the professionals it licenses to self-report. That has been a far from reliable system, as Health News Florida reported last April in  “Flying Blind on Crime.” 

Many of the problems noted in that report haven't been addressed in the current session, but some have. HB 943, which deals with background checks of caregivers and filed on behalf of the Department of Elder Affairs, was amended so that DOH can be alerted if the Florida Department of Law Enforcement gets an arrest report on a doctor or nurse.

That bill, filed by Rep. Doug Holder, R-Sarasota, has been approved by subcommittees on Criminal Justice and Health & Human Services Access.

A bill that has drawn much more attention and opposition is SB 594, by Sen. Ronda Storms, R-Valrico. (It has a compansion in the House, HB 1143.)

Storms wants to give Surgeon General Farmer the power to intervene if a doctor keeps working after being arrested, indicted, or officially identified in some other way as an over-prescriber of dangerous addictive drugs, as in the case of the DEA crackdown.

But as soon as she filed it, FMA and the Florida Dental Association saw it as a threat.

'I went too far'

When Storms presented her bill Wednesday to the Senate Health Regulation Committee, she was more subdued than at past hearings. She said the medical groups and DOH had persuaded her that taking a doctor's license away after an arrest but before a conviction was a violation of "due process."

The new language of the bill allows the surgeon general only to issue an emergency restriction of the doctor's right to prescribe controlled drugs.

Within 20 days, DOH would have to persuade a "probable cause panel" from the disciplinary board that the restriction was justified. Then the doctor could request a formal administrative hearing.

Storms said that when she initially wrote the bill calling for suspension, she was thinking about the highly publicized cases in which over-prescribing led to patients' deaths and the doctors remained in practice for years waiting for trial.

"I was much tougher when I started, but the FMA and dental association made me see the light," Storms said. "They want to protect the innocent accused, and I agree with that...I went too far."

Speakers for the dental and medical associations then thanked Sen. Storms, but said they still couldn't go along with the bill. 

A right or a privilege?

Even without a suspension, Panama City surgeon Neal Dunn said, the emergency restriction order would trigger a report to the National Practitioners' Data Bank. It contains reports of malpractice settlements and adverse actions by hospitals, health plans, and licensing boards; hospitals and insurers check it when a doctor applies.

Thus an emergency restriction "besmirches, stains the doctor's reputation to such an extent than he can no longer apply for privileges," Dunn said.

A doctor's license, he said, is a "Constitutionally-protected right."

Renee Alsobrook, deputy general counsel for DOH, said she understood the doctors' "angst," but said medical practice is not a Constitutional right but a state-granted privilege. She said that being unable to prescribe narcotics for 20 days is an inconvenience that doesn't compare to the potential harm that an over-prescriber can inflict on the public.

The committee passed the bill, but Farmer knows it has many more steps to go. He said today his staff and the FMA will keep on talking: "Hopefully we can find a solution so I can act more swiftly to protect the public."

--Health News Florida is an independent online publication dedicated to public-service journalism and financed by donations. Contact Carol Gentry, Editor, at 727-410-3266 or by e-mail.