The question now facing lawmakers and the agency's new administration is how they'll cure the patient.
The auditor general's report, released last week, suggests adding another public member would help balance the 12-person board. Currently, only three of BOMEX's board members are laypersons specifically there to represent the public. Eight are doctors; one is a nurse.
"[P]ast audits of profession-dominated boards found insufficient investigation of consumer complaints, untimely resolution of consumer complaints, and a general disregard for consumers in the regulatory and disciplinary process," the auditors wrote.
But while Executive Director Claudia Foutz agrees with most of the audit's recommendations--in fact, she says she's already taken steps to implement them--she and the board don't want to add another non-doctor.
"The recommendation is not based on any knowledge. It's just throwing out another idea with no facts behind it," she says.
Foutz cites a national study that indicates physicians are tougher on their peers than members of the public.
"This old thing of the fox watching the henhouse, which has been thrown around for years, is not the case," she says.
Representative Sue Gerard, chair of the House Health Committee, says she is open to the idea, however. Gerard has tried to pass amendments to BOMEX's statutes that would allow another public member in past sessions, only to see them defeated by opposition from the agency and the medical profession. With all of the attention focused on BOMEX this year, she thinks there's a good chance of getting it through.
But another public member is only one of the options Gerard wants to consider at legislative hearings on BOMEX in October. Gerard also wants to look at adding a health-care professional who is not a doctor.
"Just having lay members [on the board] is not enough," she says. "These have to be people knowledgeable enough to make decisions about these kinds of issues."
There is certainly enough evidence of "general disregard for consumers" in the current audit:
* The agency's disciplinary rate, despite years of complaints from citizens and lawmakers, is still dismal. In 92 percent of the cases decided last year, the board took no disciplinary action. By its most recent statistics, BOMEX took disciplinary action in only 74 of the 774 cases it decided last year. Instead, auditors say the board relies too much on a nondisciplinary "letter of concern."
That's because the board is often more worried about a doctor's finances than the patient's complaint, the audit says. Board members "are concerned that any type of disciplinary action could negatively affect a physician's ability to earn a living," auditors wrote.
* Investigations are frequently sloppy as well. Of a random sample of 117 complaints reviewed by the auditors, BOMEX's investigators interviewed the patient in only four cases. Witnesses were interviewed in only five cases.
* Board members did not follow legally required guidelines for dealing with doctors. And when discipline was imposed by the board, BOMEX staff often failed to ensure that doctors followed it, the audit says.
BOMEX's slipshod practices even dimmed the one bright spot in the audit. Although the auditors found that BOMEX had reduced its backlog by about half since 1994--to 862 open complaints--auditors implied that lax investigations allowed BOMEX to close cases faster.
Also, the agency's high staff turnover during the past nine months appears to have nudged the backlog up again, the audit says.
But a lot has changed since Foutz took over in May.
"That was the old BOMEX," Foutz says. "There's a new BOMEX now."
BOMEX's latest annual report, also released last week, pins the causes of delays on two major factors: internal troubles and the lack of board members.
"[A]gency management difficulties with legal services personnel consumed large amounts of board meeting time," the report says. "Almost seven hours were spent in executive session on January 21, 1998, related to evaluation of agency oversight."
Assistant AGs Nancy Beck and Victoria Mangiapane resigned from their positions as legal advisers to the agency shortly after Foutz arrived. Beck had applied for Foutz's job after former executive director Mark Speicher was dismissed, but was passed over. Beck and Speicher had clashed repeatedly over the management of the agency during his tenure.
Foutz has now made enforcement a priority for the agency. She has increased investigators' budgets, planned training for staff and board members, and asked to hire a third assistant AG to handle more cases.
"If that doesn't beef up enforcement, I don't know what will," she says.
Investigators' time will be used more effectively in the future, BOMEX staff say.
"We're requesting to have six to seven investigators working on validated complaints" in the new budget, Ombudsman Eric Nickell says. "They're not going to spend their time collecting urine samples like they have before."
BOMEX also now sends cases to the Office of Administrative Hearings; in the past, a bureaucratic struggle between BOMEX and OAH kept some of the most serious complaints of physician misconduct on hold for more than two years.
Foutz says the agency should be given time to prove itself before any more changes--such as adding another public member--are made.
"You're seeing things start to happen," she says. "Why not let those things work before you throw another board member at us? We're getting our house in order here."
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