| The Board of Medicine’s Proposed
“Stealth Summary Suspension” Regulation
It is often repeated that The Massachusetts Board of Registration in Medicine
is one of the more powerful state medical boards, both substantively and procedurally.
Now the Board has proposed a regulation that will add to its power in a significant
way.
Summary Suspension Background
Probably nowhere has the Board come closer to the edge of due process requirements,
than in the case of its summary suspension regulation, 243 CMR 1.03(11). Reduced
to its essence, the regulation allows the Board to suspend a license without
a prior hearing, if the Board can support the action with a sworn statement
or other documentary evidence that the physician is an “immediate and
serious threat to the public health, safety or welfare.” The physician
has a right to a hearing on the necessity of the summary suspension within
seven days. (Although there is no requirement that the Hearing Officer render
a decision within seven days.)
It is hard to exaggerate the enormity of a summary suspension’s consequences.
With few exceptions, a summary suspension effectively ends the physician’s
career. It starts the physician on what is likely to be a multi-year trek down
a dark, expensive, procedural road with hearings, delays, a complete loss of
income, reports to the National Practitioner Data Bank and other states which
respond with reciprocal suspensions, all without the benefit of a final decision
on the merits of the initial charges. To be sure, summary suspension has its
place when the Board’s investigation reveals it is dealing with a truly
dangerous professional. But such cases are rare indeed.
The Proposed “Stealth
Summary Suspension” Regulation
With this background on summary suspension, it should come as an alarm to all
physicians in Massachusetts that the Board of Medicine has put out for comment
an amendment to its licensing regulation which has the potential to function
as a “stealth summary suspension” provision. Currently, a “good
moral character” requirement is in initial license applications only.
The Board is proposing a new requirement that when renewing a medical license,
the physician “has the burden to demonstrate that the applicant is of
good moral character.”
Presently, a physician accused of wrongdoing responds to a Statement of Allegations
in an adjudicatory hearing where the prosecutor has the “burden of proof.” But
under the Board’s proposal, the same physician whose license is up for
renewal suddenly has the burden of proving that he or she is of “good
moral character.” The prosecutor merely delivers the Statement of Allegations
(or really any pending complaint) to the Licensing Committee and sits back.
If the physician cannot prove he or she has “good moral character,” the
license is not renewed. The result has all the catastrophic effects of a summary
suspension, without the name, and without troubling the prosecutor to prove
his or her case as currently required — “by a preponderance of
the evidence.”
It would be cold comfort for the Board and its staff to reassure the profession
that it will never use the proposed regulation this way. However, the Board
has not been shy about using summary suspension. The issue is not whether the
Board will ever use the “stealth summary suspension” weapon if
it is in its arsenal, but whether the weapon should be in its arsenal in the
first place.
William Ryder, Esq., the Society’s Regulatory and Legislative Counsel,
recently stated, “The MMS is actively involved in the process of reviewing
and commenting on the full scope of the Board’s regulations. Individuals
with questions about the content of the regulations or the comment process
may contact the MMS Department of Government Relations.
– Andrew L. Hyams,
Esq.
A partner at the Wellesley law firm, Kerstein, Coren & Lichtenstein,
LLP, Mr. Hyams was General Counsel at the Board of Medicine from 1985-90. He
currently represents physicians and other health professionals in regulatory
and peer review proceedings. Contact
Andrew Hyams
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