Medical Licensure – Continuing Medical Education – Due Process
In a recent case, I represented an out-of-state doctor who had applied to the West Virginia Board of medicine for a reactivation of his West Virginia license that had been inactive for six years. During his last two year licensure period in West Virginia, he had certified on his renewal application that he had completed the required 50 hours of CME, including 2 hours of coursework in“end-of-life care including pain management.” During this two year period, the Legislature passed a statutory mandate that physicians complete 2 hours of such coursework during every two year licensure interval. My client had completed a 4 hour course in pain management that included subjects that he in good faith believed were sufficient to meet the requirement and thus he signed the application certifying his compliance with all CME requirements.Thereafter, my client surrendered his license because he practiced in another state and no longer felt that he needed a West Virginia license.
West Virginia’s Board of Medicine’s process for ensuring CME compliance is based solely on retroactive audits on a very limited basis. The Board does not actually approve coursework in advance, maintain a record of CME courses attended by physicians, or otherwise actively manage CME compliance on an on-going basis. In fact, physicians who routinely apply for renewal of their licenses and certify their compliance are not audited. It is only those physicians who allow their licenses to lapse and then reapply who are audited and required to have been in compliance during the period their licenses were lapsed.
During the six year interval when my client’s license was lapsed, the Legislature amended the statute to require physicians complete the end-of-life course work on a one time basis during a lifetime, rather than every two years. In this interval, my client completed another course in end-of-life care including pain management that did satisfy the amended or lifetime requirement of West Virginia. My client then received an employment opportunity in West Virginia and reapplied to activate his license, and his CME coursework was audited. The Board determined that he did not have sufficient CME course work in end-of-life care during two year interval during which he had last applied for a license in West Virginia, six years earlier. The Board denied my client’s application unless he agreed to sign a consent order agreeing to pay a $300 fine for certifying to “false” information on the prior application, notwithstanding that the Board believed that my client did nothing at that time to intentionally deceive the Board. The course work he relied on did in part meet the criteria but was one-half hour short of meeting the 2 hour requirement, as subjectively interpreted by the Board.
My client refused the consent order and challenged the administrative order on appeal to the circuit court acting as an appellate court, and raised two issues: (1) The Board lacked subject matter jurisdiction to enforce a repealed or amended statutory mandate; and (2) The Board’s methodology of managing, approving, and accounting for CME credit lacked fundamental due process protections afforded by the West Virginia Constitution. The circuit court agreed with my client’s position and found that it was abundantly clear that my client had not attempted to deceive the Board in filling out his prior application, that at the time of reapplication he met the lifetime requirement, that he in good faith believed that he had met the earlier requirement at that time, and thus the court reversed the Board’s administrative order with instructions to issue a license to my client in West Virginia.