by Dana Gentry, Nevada Current
The chronic shortage of medical providers in Nevada may have more to do with turf protection and overzealous regulation than with the state’s desirability as a place to practice, according to some experts.
The Nevada Board of Medical Examiners “has gone off the rails,” Las Vegas attorney Keith Weaver proclaimed during public comment at a recent meeting. Weaver, who represents physicians facing complaints and disciplinary action, told the Current the board “needs significant legislative reform which I and others will advocate for next session.”
Weaver says the principles of due process and fair play are foreign to the eleven-member board, which is made up of gubernatorial appointees, six of whom must be licensed physicians.
“The Board’s indefensible conduct, specifically its constant filing of non-meritorious formal complaints against licensees, is a greater threat to the recruitment and retention of desperately needed primary care physicians and specialists than the threat of civil professional liability lawsuits,” Weaver said in an interview, adding it’s especially true for “hospital-based clinicians and academic-based physicians whose careers can be substantially negatively impacted by formal discipline.”
Weaver says the board files complaints against licensees years after an alleged incident of malpractice, including those where a civil case has been dismissed with no settlement paid.
Additionally, lawsuit settlements are “deterred by the fact that years later the Board may use that settlement to pursue formal discipline…. against the doctor,” Weaver says.
A 2022 state audit determined the board’s complaint process “can take as long as several years to finalize.” The average complaint took 326 days to resolve, with some taking as long as 800 days.
“Excessive amounts of time to finalize complaints and notify medical providers of allegations allows potentially dangerous providers to continue serving patients,” the audit said.
Weaver contends the board ignores due process by keeping experts’ opinions concealed from licensees and their attorneys, leaving them to cross-examine experts “on the fly.”
The board notes its complaints provide licensees “with enough specificity so that the Respondent has notice of the charges and allegations against him,” board counsel Deonne Contine said in a statement. “The Board does not rely on its peer review (expert) report in prosecuting the Board’s case and therefore… does not provide a copy to Respondent’s counsel.”
In the end, licensees are required to pay attorney fees and costs associated with the complaint whether they win or lose, including for the board’s expert witnesses. Costs and fees are “seldom if ever” covered by insurance, says Weaver.
In 2023, the board imposed $259,000 in costs and fees in 51 complaints, resulting in an average assessment of $5,000, according to Contine. The largest amount was “an outlier that exceeded $54,000 after adjudication,” she says.
“…a lot of interest groups don’t want more competition.”– Larry Matheis, former executive director, Nevada State Medical Association
State auditors found “costs were not adequately supported to determine whether the amount assessed was accurate,” given the state’s failure to track the hours spent on each case.
The board is following “its legislative declaration to protect and benefit the public,” Contine asserts in response to Weaver’s criticism. “It must ensure the continued competency of licensees, regulate so that the interests of licensees do not outweigh the interests of the public, and apply its enforcement powers liberally to carry out its public protection purpose,” as required by the law.
Weaver suggests the state’s regulatory scheme deters doctors from practicing in Nevada.
High bar
“The threshold for licensure (in Nevada) is high,” says the board’s executive director Ed Cousineau.
For instance, the state requires three years of progressive postgraduate training, which is “something you only see in about seven or eight states in the country,” he says. “Most of them are two years. Some are one.”
“You can nitpick those things, but why?” says Larry Matheis, former executive director of the Nevada State Medical Association, of the board’s postgraduate requirements. “That’s the kind of thing you do when you’ve got a surplus.”
Are Nevada’s high standards, compared with other states, posing an obstacle to attracting physicians?
“Some of them do, and that is a problem,” Matheis says.
Nevada ranked 45th in the nation for the ratio of active physicians to the population in 2021, with 218 per 100,000 residents, compared with the national average of 272, according to the American Association of Medical Colleges. About 70% of the state’s population live in areas with a shortage of primary care providers, according to data from the state.
“No states are saying ‘we don’t need practitioners. Everybody has the same issue. Everybody’s just fighting for a finite piece of pie. Nevada obviously wants to bring people into the state,” says Cousineau.
Matheis counters that “a lot of interest groups don’t want more competition,” noting Nevada has rejected efforts to engage in licensing reciprocity agreements with other states.
‘Close pulse’
In 2003, Nevada lawmakers approved licensure by endorsement, allowing the board to approve an applicant currently licensed to practice in any U.S. state, territory, and the District of Columbia. The board opposed the measure, which passed unanimously in both houses.
“This bill was written not to weaken the medical licensing requirements but to add some much needed flexibility in some key areas,” Dr. Greg Hayes of the University of Nevada, Reno, testified to an assembly committee in 2003. “The people in Nevada lose out in terms of being able to utilize the services of some quality doctors who are turned away unnecessarily, in my mind.”
In another hearing on the measure, Assemblyman Lynn Hettrick noted a doctor signed a contract with a Northern Nevada hospital that operates in California, as well. The doctor later learned “his license wouldn’t work in Nevada based on the requirements of the board as they exist. He didn’t have enough residency acquired, even though his training went far beyond and would far more than satisfy [the requirements].”
In a similar scenario last December, the board declined to grant a license by endorsement to a doctor who manages 27 clinics in California for Concentra, a company that also provides medical care for Washoe County School District employees. The state asked Concentra to address a shortage of occupational physicians in Northern Nevada, the applicant said.
Board member Dr. Bret Frey, according to the meeting minutes, “said he keeps a close pulse on the state’s needs and he has not heard of this public health crisis.” Frey went on to say license by endorsement is “usually reserved for those individuals that have a very unique subset of skills that hardly anyone else or no one else can bring to the state.”
The physician, who intends to appear again before the board, declined to speak on the record for fear of retaliation.
Cousineau, the board’s executive director, agrees with Frey.
“We don’t want people to circumvent that (traditional licensing) because we don’t think it’s necessary,” he said. “If you don’t bring something unique or some skill set that is desirous, the Legislature has made it clear that endorsement is to be used under discretionary circumstances and otherwise you go the traditional route.”
Matheis, who attended the 2003 hearings on the legislation that allowed licensing by endorsement, says that’s “not really” his recollection of the law’s intent.
“If there was a shortage, then the board had authority to license. And I think there’s a shortage in almost every specialty in the state,” says Matheis, adding the bill was intended to provide a path to licensure for those “practicing in good faith, and who had no problems with their licensing board or with the law.”
The average time to obtain a license from the board is 89 days, down from three to five months, according to Cousineau. He says the state is making progress attracting new providers, thanks in part to Nevada’s participation, along with 37 other states, in the Interstate Medical Licensure Compact (IMLC), an expedited path for physicians who want to work in more than one state. But a significant portion are not physically present in Nevada.
“They get licensed wherever they can because reimbursement rates for telemedicine are now on par with in-person visits,” says Cousineau, adding more than half of applicants for licenses go through the compact. “That’s one of the big reasons we’ve got so many applicants applying for the last two years.”
In 2021, the Board licensed 1,158 physicians, including 454 through the IMLC. In 2022, 1,443 physicians obtained licenses, with almost half (687) licensed through the compact.
“COVID really impacted in a unique way where a lot of practitioners got burned out,” says Cousineau. “It’s further strained the available practitioners.”
Cousineau says retiring physicians don’t always inform the board that they are no longer practicing. “They just let their licenses expire.”
The outlook for Nevada’s physician shortage is made dimmer by the state’s aging population of patients, as well as doctors. About a third of Nevada physicians are 60 years of age or older, according to state data.
