May 24, 1990 Number 5

May 24, 1990 Number 5 Mary Ann Walsh Secretary of Consumer Affairs and Business Regulation One Ashburton Place Boston, Massachusetts 02108 Barbara Neuman Executive Director Board of Registration in Medicine Ten West Street Boston, Massachusetts 021 1 . . Dear Secretary Walsh and Ms. Neuman: My opinion has been requested on behalf of the Board of Registration in Medicine (the Board) concerning the extent to which a physician leave of absence is a ^'restriction" of staff privileges which a hospital must report to the Board pursuant to G.L. c. 1 1 1, § 53B. Since March 2, 1987, the Board has had in effect regulations which require hospitals to report all leaves of absence, voluntary and involuntary, which are related to physician competence. The Board believes that even prior to these regulations such reporting was required by the terms of section 53B, relevant parts of which have been in effect since 1980. It is con- cerned, however, that hospitals may have misunderstood the reporting require- ments of section 53B and, prior to the promulgation of the Board's 1987 reporting regulations, may not have consistently been reporting leaves of absence to the Board. It is in connection with the Board's intention to request hospitals to now report those leaves of absence they may have previously failed to report that the Board seeks my interpretation of the requirements of section 53B. For the rea- sons set forth below, it is my opinion that a leave of absence taken for any reason related to the physician's competence to practice medicine is a reportable restriction pursuant to section 53B whether the leave is labelled as voluntary or involuntary. Since its enactment in 1980, see St. 1980, c. 374, § 1, section 53B has required a hospital to report to the Board when it "restricts" the staff privileges of a physician "for any reason related to the [physician's] competence to practice medicine." Section 53B reads in relevant part: Any person licensed [to operate a hospital or other institution licensed by the Department of Public Health under G.L. c. Ill, § 5 1 ] shall report to the hoard of registration in medicine when the licensee denies, restricts, revokes, or fails to renew staffprivileges, or accepts the resignation of any physician registered wi'h the board as qualified to practice medicine in the commonweahh for any reason related to the registrant's competence to practice medicine or for any reason related to a complaint or allegation regarding any violation of law or regulation, or hospital, health care facility or professional medical association by-laws, whether or not the complaint or al- legation specifically cites violation of a specific law, regulation or by-law. . . . [emphasis added].' 32 PD. 12 Initially, 1 note that the Board itself appears, through its 1987 regulations, to have interpreted section 53B to require the reporting of leaves of absence related to physician competence. Sec American Family Life Assurance Co. v. Commis- sioner of Insurance, 388 Mass. 468. 474-475 (1983) (regulations are good indica- tors of an agency's interpretation of a statute it is charged with administering). These regulations, which were promulgated in part pursuant to the specific legislative authorization to eflectuate the intent of section 53B (see. n. 1. ante). expressly require hospitals to report any "disciplinary action"' to the Board. 243 Code Mass. Regs, ij 2.07 (17)(c). "Disciplinary action." in turn, is defined to include a "voluntary or involuntary . . . leave of absence" provided it "relate[s] directly, or indirectly to . . . the licensee's competence to practice medicine." 243 Code Mass. Regs. § 3.02, "Disciplinary Action." (3)(1) and (4)(a). The Board's interpretation of section 53B as expressed in these regulations requires the re- porting of leaves of absence whether voluntary or involuntary and is entitled to weight. See Kvitka v. Board of Registration in Medicine. 407 Mass. 140, 144 (1990); School Committee of Springfield v. Board of Education, 362 Mass. 417. 441 n. 22 (1972).- The Board's interpretation, moreover, in my opinion, reflects a correct appli- cation of the principles of statutory construction which require that a law be interpreted so as to effectuate the intent of the Legislature as evidenced by the usual and natural meaning of the language used and considering the purposes and remedies intended to be advanced. Deas v. Dempsey, 403 Mass. 468, 470(1988); Conroy v. Boston, 392 Mass. 216, 219 (1984). By its plain terms, section 53B requires a hospital to make a report to the Board when it "restricts" a physician's privileges for reasons relating to physician com- petence. During the period of any leave of absence, a physician's staff privileges are in suspension, albeit temporarily. The suspension of staff privileges is mani- festly a "restriction" on those privileges as that term is ordinarily understood. See Webster's Third New International Dictionary 1937 ( 198 1 ) (defining "restrict" as "to set bounds or limits to . . ." and giving "limit" as its synonym). Thus, where a hospital directly imposes a leave of absence on a physician for a reason related to the physician's competence to practice medicine, there is no question that the hospital "restricts" the physician's privileges and must report the leave of ab- sence under section 53B. In my view, moreover, a hospital also "restricts" the privileges of a physician when it permits a physician whose competence to practice medicine has come into question to "voluntarily" take a leave of absence in order to avoid potential disci- plinary action by the hospital. Although the restriction of privileges may in this circumstance have been brought about through more indirect means, the hospital may still be said in practical terms to have restricted the physician's privileges. Placing the "restricts" language within the context of section 53B, moreover, further supports the conclusion that a leave of absence whether labelled as voluntary' or involuntary' is reportable. See International Brotherhood of Electrical Workers v. Western Mass. Electric Co., 15 Mass. App. Ct. 25, 27 ( 1982), and cases cited (wordsof a statute must be read in context). Section 53B requires reporting not only when a hospital "restricts" staff privileges but also when it "denies . . . revokes, or fails to renew staff privileges, or accepts the resignation of. any physician" for reasons relating to competence. By expressly requiring a report when a hospital "accepts the resignation" of a physician, the statute itself clearly rejects any distinction based on claimed voluntariness. P.D. 12 33 Finally, when the language of section 53B is read in light of its purpose, it is plain that its reporting requirement must extend to any leave of absence related to physician competence whether imposed directly by the hospital or taken by the physician in order to avoid potential affirmative disciplinary action by the hospi- tal. The role of the Board in the over-all statutory scheme is to take primary responsibility for the regulation of the practice of medicine in the Commonwealth in order to promote the public health, welfare and safety. See Levy v. Board of Registration & Discipline in Medicine, 378 Mass. 519, 524 (1979). In that capacity, the Board has been given the duty and authority to investigate physician compe- tence and to protect the public against physician incompetence through the revocation of physician licenses and other means. See G.L. c. 112, §§ 5, 5A. The reporting requirements of section 53B are plainly aimed at furthering the ability of the Board to fulfill its function by providing a means to alert the Board to potential instances of physician incompetence. If a physician could be shielded from having his or her possible incompetence come to the attention of the Board by the simple expedient of taking a voluntary leave of absence rather than risking affirmative disciplinary action by a hospital, incompetent physicians could easily evade the notice of the Board, and the purpose behind section 53B would be frustrated. I cannot impute to the Legis- lature an intention so easily to permit circumvention of so important a legislative purpose as the assurance of competent physicians. See Lexy v. Board of Registra- tion & Discipline in Medicine, 378 Mass. at 524-525 (interpreting statutory powers of the Board broadly "given the strong public interest in promptly disciplining errant physicians"). In sum, I conclude that a leave of absence, whether voluntary or involuntary, is a restriction on staff privileges within the meaning of G.L. c. 11 1, § 53B. Since section 53B went into effect in 1980, therefore, hospitals have been required to report any leave of absence which occurred for any reason related to the physi- cian's competence to practice medicine.^ Very truly yours. JAMES M. SHANNON ATTORNEY GENERAL ' The Medical Malpractice Reform Act of 1986 (St. 1986. c. 351) added the word "denies" to the list of reportable limitations on staff privileges and added the last- quoted phrase requiring reports on limitations of staff privileges "for any reason related to a complaint or allegation regarding any violation of law . . . ." The Act also amended section 53B to expressly authorize the Board to promulgate "such regula- tions as are necessary to carry out the intent of this section." ~ I note, however, that the Board has the authority to require by regulation reporting beyond that mandated by section 53B. See Beth Israel Hospital v. Board of Registration in Medicine, 401 Mass. 172, 178 (1987) (section 53B does not state exclusive circum- stances in which Board reports may be required); id. at 176 (specific statutory require- ment does not bar consistent agency action under general regulatory authority). The 34 P.D. 12 1987 regulations therefore may not strictly speaking represent an agency interpreta- tion of the precise mandate of section 53B. I need not pause over this question. however, since, irrespective of any agency interpretation, my reading of section 53B is fully supported by the plain language of the statute. ^ I note that in this opinion you have asked me for my interpretation of the meaning of the section 53B reporting requirement concerning restrictions on staff privileges relating to physician competence, and I have confined myself, as is my general prac- tice, to answering only the specific question you have asked. See 1985/86 Op. Att y Gen. No. 3, Rep. A.G.. P.D. No. 12 at (1985). You have not sought, nor do I provide, any guidance as to what means may be available to you to either determine or enforce hospital compliance with G.L. c. 11 1, § 538. P.D. 12 35