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SUMMARY
The Office of the Auditor General has conducted a performance
audit and sunset review of the Board of Podiatry Examiners (Board) pursuant to
an October 5, 2006, resolution of the Joint Legislative Audit Committee. This
audit was conducted as part of the sunset review process prescribed in Arizona
Revised Statutes (A.R.S.) §41-2951 et seq.
The Board's mission is to protect the health, safety, and
welfare of the citizens of Arizona by maintaining and regulating standards of
practice in the field of podiatric medicine. The Board licenses and regulates
podiatrists, who specialize in the diagnosis and treatment of the foot and its
related structures. The Board's various responsibilities include issuing and
renewing licenses to qualified persons, conducting investigations and hearings
concerning unprofessional conduct or other statutory violations, disciplining
licensees who commit violations, and providing consumer information to the
public.
Board needs to improve complaint-handling
practices (see pages 9 through 17)
The Board should take several steps to address problems with
its complaint-handling practices, some of which were identified when the Office
of the Auditor General conducted its 1998 performance audit and sunset review of
the Board. Although the Board took steps to address the 1998 problems, similar
problems were found during this audit. Specifically, the Board should:
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Separate complaint investigation from adjudication—The
Board typically performs the necessary steps to investigate a complaint, but
the full Board acts as both investigator and adjudicator. This practice
conflicts with the Attorney General's guidance in the Arizona Agency
Handbook, which states that to minimize problems, decision-makers, such as
board members, involved in adjudicating a complaint should consider not
participating in investigating that complaint. Combining the investigation
and adjudication of complaints can create the appearance of bias because
board members may not appear objective when adjudicating the complaint.
Therefore, the Board should identify and implement a process that allows it
to separate the investigative and adjudicative functions. One option the
Board should consider involves assigning one of its members to conduct
complaint investigation activities and then having this board member recuse
himself/herself from all other decisions and discussions regarding the
complaints he/she investigates.
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Improve complaint-handling timeliness—The Auditor
General's Office has found that Arizona health regulatory boards should
typically resolve complaints within 180 days. However, it took the Board
longer than 180 days to process 15 of the 106 complaints it received between
July 1, 2005 and December 31, 2007. Further, 12 of the 106 complaints
remained open as of June 1, 2008, and were open longer than 180 days,
including 5 complaints for one licensee. Two factors contribute to the
Board's inability to process all of the complaints it receives in a timely
manner. First, the Board investigates complaints during its monthly
meetings. Since the Board generally meets only one day per month, complaint
investigations can take considerable time, particularly if the process
requires multiple meetings. Separating the Board's complaint investigation
and adjudication functions, as discussed above, could help it process
complaints in a more timely manner.
Second, licensees are sometimes nonresponsive to board requests for
information. According to statute, it is an act of unprofessional conduct to
withhold some types of information from the Board. A.R.S. §32-854.01(17)
states that it is an act of unprofessional conduct for a licensee to refuse
"to divulge to the board on demand the means, method, procedure, modality of
treatment, or medicine used in the treatment of a disease, injury, ailment
or infirmity." Auditors found that for 4 of the 27 complaints open longer
than 180 days and for which the Board issued letters of concern or pursued
disciplinary action, the licensees did not provide information prescribed by
statute and were not sanctioned by the Board. Therefore, the Board should
take action against licensees who do not respond to requests for treatment
information as prescribed in statute. In July 2008, the Board began using
subpoenas to initially request documentation from licensees, which may
facilitate how timely licensees provide documentation to the Board.
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Improve some complaint-handling processes—Because
of inadequate processes and documentation, auditors could not always
determine whether the Board addressed all allegations indicated in a
complaint, the basis for its complaint decisions, and its consideration of a
licensee's prior disciplinary history when determining discipline for a
current complaint. Further, the Board has inconsistently communicated
complaint investigation results and the decision to the complainant. In
August 2008 the Board adopted a policy for consideration of a licensee’s
disciplinary history when taking disciplinary action against a licensee. The
Board should also develop and implement complaint-handling policies and
procedures that help ensure that it completely and appropriately addresses
all complaints and documents its processing of all complaints.
Board should improve public information (see pages 19
through 25)
One of a regulatory board's important responsibilities is
providing information that allows the public to make informed decisions about
using the services of licensees whom the Board regulates. However, when auditors
made calls to the Board and asked for information, board staff did not provide
complete information about licensees. Complete information was similarly
unavailable on the Board's Web site.
One problem that contributed to the lack of complete
information was the Board's database, which is incomplete and inaccurate. The
Office of the Auditor General’s 1998 audit report recommended that the Board
develop a complaint-tracking database and procedures to ensure its accuracy and
completeness. Although the Board took steps to implement these recommendations,
as of May 2008, only 37 of the 123 complaints received between calendar years
2003 and 2006 had been entered in the database. Further, auditors' tests of 113
complaint records in the database identified at least one piece of missing
information for 64 of these complaints. Board staff are aware of these problems,
have begun to address them, and should continue to do so. The Board should also
create a database report that can detail an individual licensee's complaint and
disciplinary history. As of May 2008, such a report has not been created in the
database, and instead, board staff manually search the database for this
information. This takes time and potentially leads to information that might be
missed or not accurately disclosed to the public.
A second problem affecting the information provided to the
public was the lack of written public information policies and procedures.
Although the Board reported that it had developed public information guidelines
for its staff in 2006, it has not developed formal, written policies. A board
employee, who was hired as of September 2007 and answered auditor phone calls,
was unaware of these guidelines and did not follow them. For example, contrary
to board guidance, board staff provided information on dismissed complaints and
a letter of concern that dated from more than 5 years before the auditor's call
and did not provide information on all complaints that resulted in disciplinary
action. Additionally, information on the Board's Web site is not consistent with
its guidelines. To address these matters, the Board should develop and implement
written public information policies and procedures.
Sunset factors (see pages 27 through 36)
Auditors analyzed the Board's performance in accordance with
the 12 sunset factors outlined in A.R.S. §41-2954, including its compliance with
open meeting laws. In addition to the matters already discussed above, auditors
found problems in the following areas:
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Meeting notice requirements—Until April 2008,
board meeting notices did not comply with A.R.S. §38-431.02(G), which
requires state agencies, at least 24 hours in advance of the meeting, to
include a meeting agenda with the posted notice or inform the public where
one could be obtained. Further, the Board did not post the notice for its
June 11, 2008, board meeting 24 hours in advance of the meeting. Therefore,
the Board should ensure that it complies with the open meeting law
requirement and post its meeting notices and appropriate agenda information
24 hours in advance of the meeting.
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Meeting agendas—Although the Board significantly
improved its meeting agendas during the audit, additional improvements are
needed. Improvements already made include more clearly and specifically
identifying the items to be discussed, considered, and potentially acted
upon. After these changes were made, however, auditors still found that the
June 11, 2008, board meeting agenda listed two complaints without indicating
the specific matters for discussion or possible action. Auditors also
identified circumstances where the Board held discussions or took actions on
items that had not been included on the meeting agenda. Therefore, the Board
should continue to work with the Attorney General's Office to ensure the
appropriateness of its meeting agendas and that it restrict board business
and discussion to matters that have been appropriately included, described,
and noticed on its meeting agendas.
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Examinations inappropriately conducted—One of the
Board's duties involves administering an oral examination to those seeking
to become licensed as podiatrists in Arizona. The Board inappropriately
handled its December 2007 oral exam in a board meeting by failing to
properly notice the meeting and executive session, post an agenda, or take
and produce meeting minutes. The Board addressed these issues by holding a
meeting to ratify its actions related to the December 2007 oral exam.
Additionally, consistent with the advice of its Assistant Attorney General
to review previous administrations of the exam to see if this would
constitute a meeting and then address any potential open meeting law issues,
the Board held a ratification meeting in July 2008.
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Executive sessions—According to A.R.S. §38-431.03,
there are seven reasons that the Board may hold executive session, including
discussion or consultation for legal advice, or receipt and discussion of
information or testimony that is specifically required to be maintained as
confidential by state or federal law. However, the Board inappropriately
conducted investigative interviews, citing witness safety concerns, in two
executive sessions held during separate board meetings in December 2007 and
January 2008. During its May 2008 meeting, the Board's Assistant Attorney
General advised the Board of the problems associated with conducting an
interview in executive session, indicating that witness fear is not a
permissible reason to conduct an interview in executive session and that the
information gathered would need to remain confidential. Therefore, the Board
should ensure that it complies with A.R.S. §38-431.03 and uses executive
session only for purposes permitted by law.
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