was the most likely source for diversion (leakage). Pharmacists felt that pharmacy theft was the major source of diversion, with almost 80 percent viewing it as a serious or moderately serious problem. Almost all respondents answered the question by indicating a number of sources of diversion or controlled substances which were being abused. As expected, pharmacists were the most responsive profession to answer this question.

(2) Limitations of Professional Associations in Drug Abuse and Diversion Control

Although there have been some efforts to involve the professional associations in regulatory processes, there appears to be considerable communications between the boards and associations with respect to board license actions and proceedings. Also, just under a majority of the board respondents feel that self-regulation should be a joint effort of boards and associations. However, association effectiveness in self-regulation is seen as being limited to ethics violations. This no doubt results from the lack of a legal or statutory basis for investigating and punishing its members. Any contribution that these organizations can make toward regulation of their members is therefore limited to unofficial and informal actions. A number of board members have been exposed to situations in their States where a voluntary and loosely structured intraprofessional regulatory program exists. These board members recognize that the anticipation of sure and rapid license actions is one of the best available tools for selfregulation by inducing voluntary compliance on the part of the practitioner. Hence, the possibilities of delays, court actions claiming improper delegation of the board's statutory authority, and the political pressures not to take more severe actions (which can be engendered after the practitioner has served or paid association-imposed penalties), lead many board members to the conclusion that the voluntary program will prove to be inadequate to prevent serious problems created by individual members of the profession.

4. PROBLEM SITUATIONS BASED ON RESEARCH OBSERVATIONS

Few authoritative works address the regulatory aspect of licensing boards and the related problems of drug diversion, standards of practice, and discipline of violators.

The overwhelming majority of the State statutes extend to the individual practitioner a lifetime privilege to practice a chosen profession. Periodic registration requirements provide little in the way of professional review. (Although there is an increasing trend toward more stringent professional review, it has not significantly affected State legislation.) The statutes define certain instances whereby a practitioner's license may be revoked or suspended. Although these sanctions appear to be an effective and potent means of obtaining high standards of health care in the public interest, many licensing boards are severely restricted in taking disciplinary actions against practitioners.

Much of the following discussion has been extracted from the publications researched and from the data received directly from the States.

(1) Statutory Vagueness

The study team's finding of statutory vagueness is consistent with Derbyshire's study of 938 cases of disciplinary action for narcotics violations taken by State medical boards from 1963 to 1967. Of the 13 grounds for action identified by Derbyshire's study, three-narcotics, abortions, and conviction of a felony-accounted for 62 percent of the total actions.1

Because these grounds are more clearly defined and interpreted, they obviously present fewer problems in processing and thus constitute a much higher proportion of disciplinary action than the more difficult to interpret "unprofessional conduct" clauses. Forgotson, et al reported that judicial uneasiness and reluctance to enforce nebulous terminology results in licensing boards that generally "discourages disciplinary actions, except possibly when a statute is clear or where the evidence is clear cut."

(2) Impact of State Laws on

Practitioners

Derbyshire points out a noteworthy impact of the State laws on professional practice:

"For a long time physicians have prided themselves on the fact that their profession is selfregulated. But this is true to a limited extent only; self-regulation today is confined to the medical societies which have some disciplinary powers over their members. However, their actions have no force of law. As far as the legal aspects of medical practice are concerned, the profession is anything but self-governing. Although the boards of medical examiners, composed of physicians, ostensibly supervise the practice of medicine, these bodies are controlled in varying degrees by all of the branches of the State governments."3

This appears to hold true for the five professions under study. The licensure boards are primarily administrative bodies with quasi-judicial functions,4 but many have deficiencies in terms of their knowledge of the law. Because of this, many boards often breach due process procedures and board decisions have been reversed by the State courts. This in itself may contribute to a board's hesitancy to initiate disciplinary action.

The overall conclusion of several authors on the disciplinary process is summarized succinctly by one observer: "The result is that disciplinary process of the licensure statutes protects the public only against relatively infrequent and extreme cases."5

"In sum, professional associations generally have encouraged State regulation by means of personnel licensure. In addition to its function of guaranteeing a minimal standard of services, licensure as indeed other means of credentialing has afforded the professional associations a very tangible measure of social prestige, status, and influence. This suggests that organizational interest in occupational credentialing and its attendant problems is very significant and must be seriously considered in the ensuing discussion of issues."7

(4) Interaction Between the Boards and the Associations

Significant overlaps exist in the functions performed by licensing boards and associations. The essential problem is one of independence, parhticularly in investigations and disciplinary actions taken against a professional. This problem is summarized as follows:

"A related phenomenon in the disciplinary activities of licensing boards is the close interaction and almost coalescence of the boards with the professional associations. In some instances, the board, in effect, delegates the burden of disciplining a practitioner to its constituent association, relying, as it were, upon its good judgment. Disciplinary action following this route is quite common; and, in some cases, takes the form of a State subsidy of the association with the licensing board relying on the grievance committee of the corresponding association to discipline its members. Where the association cannot effectively discipline a practitioner, the board may proceed with legal sanctions."8

The influence and impact of State professional organizations are as varied as the States themselves. As pointed out by one observer, for example, boards have complete authority to refuse to initiate disciplinary proceedings against a licensed practitioner.9

(5) Initial Conclusions

Derbyshire has drawn two basic conclusions from a study of State board disciplinary actions.10 First, disciplinary action by medical boards is almost insignificant in terms of the total number of practicing professionals. Second, there is strong evidence of leniency in the few cases that result in formal board actions. These conditions are apparently fostered by the empathy felt by fellow practitioners who sit on the boards. As Derbyshire points out:

"Without a doubt the most onerous duties demanded of members of boards of medical examiners lie in the field of medical discipline. The awesome responsibility of having to revoke the license of a physician, thus depriving him not only of a means of livelihood but also of his entire way of life, weighs heavily upon them."11 Aside from the problems caused by the lack of uniformity among State board practices, the universal lack of adequate funding is the most neglected but imposing problem facing licensure boards. Funding structures range from professional associations contributing to the boards to the reverse situation, and from boards surviving on collected fees to being entirely dependent upon the State legislature for budgeted funds. Almost no currently available documentation specifically addresses this funding problem, although many do mention it. Additional research is needed into the impact of funding upon the ability of boards and States to meet their regulatory responsibilities.

5. COMPILATION OF DATA RESULTS

This section is concerned with the establishment of a data base to support the analysis presented in this chapter. The major sources of information developed in this chapter include:

• Field survey of selected States • Legislative review

• Questionnaire survey.

(1) Field Survey Results

A field survey of the State boards and related professional associations was conducted in Maryland, New York, and Virginia.

The time and scope limitations of the field survey did not provide for a point-by-point comparison of all State boards surveyed. Emphasis was directed to the "retail" level of the functions performed by the State boards of medicine and pharmacy and their interactions with regulatory and enforcement agencies. The following objectives were accomplished:

• To obtain information not available from the legislative review

• To gain additional insight into the factors that influence the regulation of health professionals • To assist in the development of questionnaires to be sent to the 50 States and the District of Columbia.

Six State licensing board questionnaires were developed for this study. In the following three sections, an effort is made to consolidate the responses into a series to tables. In this manner, a cross-comparison of responses from the professions can be made.

The following considerations were used in compiling the tables which summarize the regulatory board survey.

• In the analysis of the responses some responses were found to be too scattered to be specifically treated and/or mentioned. These cases have been combined under the classifications "other" or "other responses."

• The percent (%) row represents the number of responses as a percentage of the total number of questionnaire respondents or, if appropriate, the total number of State regulatory board representatives responding to a previously qualifying question. For example, when the respondents responded unfavorably to a proposed program, only the responses of those individuals who indicated in the earlier question that they favored the program were presented in the tabulations although in all such cases all responses were analyzed

• The "S" row indicates the number of States for which a specific condition exists. For purposes of this survey, the 50 States and the District of Columbia are referred to as "51 States."

• "Total" represents the professional regulatory boards for dentistry, medicine and osteopathic medicine, nursing, pharmacy, and veterinary medicine. "Total Medicine" represents the professional regulatory boards of medicine and osteopathic medicine.

• For a number of questions the respondents were encouraged to provide multiple responses. In the tabulation of these responses the percent row again represents the number of responses as a percentage of the total number of respondents.

Recognizing the desirability of directly comparing the overall responses to the individual responses by profession, each of the six individual by profession responses are presented alongside the aggregated "total medicine" res

ponses. As readability would have been impaired by further reductions in the size of print, it was necessary to utilize abbreviated forms of the respondents' answers and comments in a number of the data tabulations. Whenever this step was necessary, the "actual responses" are presented either as a part of discussion or immediately before the tabular presentation of the data.

The initial survey of State regulatory activities resulted in observations which formed a baseline for a more in-depth analysis of the boards' operations. The study team determined the applicability of these observations to each State and to five professional boards as groups. In order to validate these observations, each of the State licensing/ regulatory board chairpersons/presidents and/or executive secretaries/directors who received the questionnaire or were interviewed were asked to provide the following types of input: Direct information on on board board appointments, communications, funding sources, resources, disciplinary actions, and investigative activities of the profession and the board

Review of initial study findings to assess the applicability of those findings to their profession and its licensees

• Evaluation of the desirability and possible difficulties in implementing the recommendations which had been developed as a part of this study.

Data obtained from the legislative, field, and questionnaire surveys will be presented first in terms of the operational characteristics of the State professional regulatory boards, second in terms of study findings and observations, and third in terms of the detailed recommendations for regulatory and statutory efforts to control drug diversion and controlled substances abuse at the retail level.

6. OPERATIONAL CHARACTERISTICS OF STATE

REGULATORY BOARDS

State regulatory boards are responsible for the admission and continuation in public practice of health professionals under their jurisdiction. To a considerable extent, the authority, composition and procedures of the boards determine the manner in which the licensure laws are administered. Thus, the State boards exercise an important influence on the discipline, ethics, professional performance, and scope of professional practice of its member licens

ees.

Extensive data collection and field surveys of several State regulatory boards and professional societies enabled the project technical team to obtain a detailed assessment of many of the above operational characteristics of State boards. In assessing and validating the information received from the

board respondents, the following issues were reviewed:

• The process of appointing board members and related experience requirements

• Effective means of communication between the State board and its licensees

• The sources of funding and how the resources are allocated in support of the board's various activities

• The effect of voluntary and mandatory peer review on self-regulation activities

• The types of disciplinary actions resulting in the suspension or revocation of a license.

The use of the entire board sample results in the misinterpretation of data when a disproportionate number of the larger or smaller States responded to any given question requiring absolute number responses (e.g., referrals, budget data, or sessions of continuing education). Hence, only a single respondent for each State professional board was used to prevent biasing the data. This does not affect the use of common statistical tests of the survey data base as the entire respondent sample is used in the findings and recommendations section; but the standard statistical measures (standard errors of the means) are inappropriate for use in statistical tests of this filtered data set.