by Daniel J. Schulte, MSMS Legal Counsel
QUESTION:
I have always believed that self-regulation was an important characteristic of any profession. I realize that self-regulation is a part of the medical profession. This includes the voluntary reporting of our own illegal or unethical conduct and that of our fellow physicians. However, the methods and availability of reporting mechanisms are not well known. Can you advise us of the ways to report illegal and unethical conduct?
ANSWER:
What follows is a list of some of the more common mechanisms used by physicians in the self-regulation of the profession. The list is not meant to be complete, instead it sets forth the most common methods of reporting illegal or unethical conduct.
1) Michigan’s Public Health Code – MCL 333.16222(1) requires that a physician having knowledge of another licensed health professional’s violation of the public health code or having committed and act or omission that could be grounds for discipline has a duty to make a report to the Michigan Department of Licensing and Regulatory Affairs (“LARA”). The allegation packet and other information to do so is available on LARA’s website: https://www.michigan.gov/documents/lara/BPL-LAD-100_523225_7.pdf. The duty to report includes knowledge of any of the grounds for discipline listed in MCL 333.16221 which includes a variety of personal disqualifications (incompetence, substance abuse, a mental or physical inability to practice in a safe manner, conviction of certain felonies and misdemeanors, adverse licensure actions in other jurisdictions, etc.), the commission of prohibited acts (various forms of fraud, false and misleading advertising, etc.), unprofessional conduct, violations of laws applicable to the health professions, etc.
This duty to report is subject to only one exception. A physician who learns that another health professional has committed an act requiring reporting as a result of providing physician services to that health professional is prohibited from making disclosure of information learned in the course of that physician-patient relationship.
2) MSMS Judicial Commission – Section 7 of the MSMS Bylaws and the rules and procedures of the MSMS Judicial Commission establish a mechanism for the reporting, investigation and potential discipline of members who violate the Principals of Medical Ethics of the American Medical Association, engage in unprofessional or dishonest conduct as proscribed by Michigan’s Public Health Code, commit a felony or violate or disregard the MSMS Bylaws, principals, rules or regulations of MSMS, the Judicial Commission or the American Medical Association. Section 7.30 of the MSMS Bylaws limits the Judicial Commission’s authority to: (1) reprimanding a member; (2) suspending or expelling a member; or (3) for a grievous offense making a recommendation to the Board of Medicine to revoke the member’s license. The Judicial Commission does not have jurisdiction over non-members (and will mediate a grievance against a non-member only if he/she voluntarily agrees to participate).
3) OIG’s Self Disclosure Protocol – Physicians may self-report to the U.S. Department of Health and Human Services Office of Inspector General (“OIG”) violations of federal laws for which civil monetary penalties may be imposed. These include violations of the Medicare and Medicaid laws/regulations and the fraud and abuse laws (e.g. the anti-kickback statute, False Claims Act, etc.) other than the Stark Law (see below for Stark Law self-reporting) violations using the OIG’s Self-Disclosure Protocol. Further information and forms are available at: https://oig.hhs.gov/compliance/self-disclosure-info/protocol.asp.
4) Stark Law Self-Reporting - A similar self-referral disclosure protocol is available for violations of the Stark Law’s prohibition on physician self-referral. Information on this self-reporting mechanism is available at: https://www.cms.gov/medicare/fraud-and-abuse/physicianselfreferral/self_referral_disclosure_protocol.html.
5) Medical Staff Bylaws – If you are on a hospital or other medical staff you should carefully review the medical staff bylaws and any applicable policies and procedures. These documents frequently contain requirements for both self-reporting your violations of rules and policies of the medical staff and may also require your disclosures of the violations of others on the medical staff.