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Exception to Mandatory Reports - PHS

Board of Registration in Medicine Regulations 43 CMR 2.07(23)

Exception to Mandatory Reports

(23) Exception for Reports to the Board under M.G.L. c. 112, § 5F.

(a) Requirements for Reporting Exception to Apply. A health care provider (reporter), as defined by M.G.L. c. 111, § 1, who is required to report a physician to the Board pursuant to M.G.L. c. 112, § 5F, is exempt from filing such a report if all three of the following conditions are present.

  1. Reasonable Basis to Believe Impairment. The reporter has a reasonable basis to believe that the physician is or has been impaired by, dependent upon or misusing alcohol or drugs such that a report could be required under M.G.L. c. 112, § 5F, and that the physician has not violated any other Board statute or regulation as set forth in M.G.L. c. 112, § 5 or 243 CMR 1.00 through 3.00; and
  2. No Allegation of Patient Harm. The physician's involvement with alcohol or drugs has not involved an allegation of patient harm; and
  3. Confirmation of Compliance with the Treatment Program. The physician is currently in compliance with a drug or alcohol program, and the reporter obtains direct confirmation from such drug or alcohol program, within 30 days of acquiring the Reasonable Basis to Believe under 243 CMR 2.07(23)(a), that the physician is in compliance with such program. If the reporter fails to obtain direct confirmation from such program or if the physician at any time fails to comply with such program, the exception to the reporting requirement set forth in 243 CMR 2.07(23) ceases and the health care provider must report the impairment as required by M.G.L. c. 112, § 5F.

(b) Requirements for drug or alcohol program to qualify for 243 CMR 2.07(23).

  1. The drug or alcohol program must be approved by a majority vote of the Board. Approval may be withdrawn, at any time, for cause, by majority vote of the Board and with reasonable advance notice to the program of the reasons for the proposed withdrawal of approval and an opportunity to dispute such reasons. However, nothing herein shall be construed to provide a right to an adjudicatory hearing
    pursuant to M.G.L. c. 30A.
  2. The drug or alcohol program requires as a condition of the physician's participation that the physician consent, pursuant to 42 CFR 1, subpart A, part 2, subsection C, to disclosure of relevant information to the Board, under any of the following conditions: 
    1. If the physician fails to correct, within a reasonable period of time, a failure to provide documentation of his or her continuing freedom from unauthorized substance use;
    2. If the physician is known by the program to be in a state of unauthorized substance use, or if the physician is in a state of unauthorized substance use after signing his or her contract with the program;
    3. If the program has a reasonable basis to believe that the physician, for any reason, cannot render professional services without undue risk to the public;
    4. If the physician revokes consent to disclose information to the Board during the course of his or her contract with the program; or
    5. If the physician terminates his or her contract with the program for any reason other than his or her successful recovery, in which the program concurs.
  3. The drug or alcohol program requires that the physician consent to confirmation to the reporter, pursuant to federal regulations, that the physician is participating in the program, to the extent that the reporter needs such confirmation pursuant to 243 CMR 2.07(23)(c).

This regulatory language, updated March 22, 2012, is provided for convenience. Please consult current regulatory language and legal counsel before any action is taken or decision is made in reliance on the language above.  

The complete Statutes and Regulations Concerning Hospital and HMO Physician Health Committees is available for download (.pdf, 48kb).

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