Moving forward: Handling a physician medical board action Insight Article - September 10, 2020 Compliance Regulations HR Legal Sign in to save Michelle Schaeffer FACMPE Editor’s note: This article was adapted from a paper submitted toward fulfillment of the requirements of Fellowship in the American College of Medical Practice Executives. Learn more about ACMPE certification: mgma.com/acmpe. Healthcare is not immune to the heightened sensitivity surrounding personal and professional boundaries, with the #MeToo movement being front and center amid numerous headlines of sexual misconduct among celebrities and politicians. A select few, highly publicized cases — such as USA Gymnastics national team physician Larry Nassar — can cast a shadow and have a real impact upon those who are committed to beneficial patient care. Society holds physicians and healthcare professionals to a higher standard. We trust them as teachers and as individuals who have dedicated themselves to be unbiased, selfless and above reproach. The effects on a physician’s licensure and the practice cannot be fully comprehended unless one has experienced the tangled web of required reporting and timelines after a medical board action. A single occurrence can become a multitude of reportable events due to the disjointed exchange of information between entities. A practice administrator armed with enough foresight, however, can minimize risk and reduce unnecessary hardship on the practice and the physician. Professional boundaries — including harassment, anger management, sexual misconduct and prescription abuse — are all categories with continuums, with some behaviors warranting punitive measures, and other circumstances that would be better served with a therapeutic response. Therapeutic or not, the stipulations still present a hardship on physician and practice alike. Practice administrators would likely try to avoid employing a physician applicant based solely on the presence of a reportable incident. There are potential consequences if terms are not carefully executed, including the loss of the physician’s license. A less severe, but equally concerning consequence is public image. Whether a reportable incident is contested, once it requires corrective action, it can potentially damage the reputation of and confidence in the physician, making it difficult for him or her to build or sustain a practice. However, understanding the downstream effects of such board actions provides opportunity. If practice preparation measures are in place to manage and support the physician, the practice could capitalize on an otherwise difficult recruitment need. This is especially crucial for practices in rural and underserved areas that need to differentiate a physician candidate who is passionate about his or her profession from one who is merely evading allegations. Medical board actions result from a variety of accusations, and while practice administrators create policies to reduce risk of improper, illegal or negligent professional activity, risk remains. Ethical treatment of patients is included in the standard of care for physicians; however, professional boundary issues can be harder to predict. Special attention should be given to thwart the negative consequences related to professional boundary accusations and violations. Licensing agencies, insurance credentialing processes and medical association by-laws will provide expectations for participation. Background Anne Lawler, executive director, Idaho Board of Medicine, noted that the State of Idaho had 245 complaints and opened 159 investigations that resulted in 48 actions in 2017. Of those actions, 26 were disciplinary and 22 were informal, such as a confidential letter of concern (CLoC). Not all these complaints were with regard to boundary issues; however, they were related to a violation of the practice act found in Idaho Code 54-1814 (Title 54).1 Identification of those who abuse their authority allows for corrective action, monitoring and future reporting. Board actions are designed to assure the quality of the healthcare delivery system, and state medical boards “serve to protect the safety of the public through physician licensure, licensure surveillance, misconduct investigation and subsequent discipline.”2 All 50 states and the District of Columbia report to the National Practitioner Data Bank (NPDB), a clearinghouse of information that is the standard means for collecting information on physician activity.3 Required reportable events include adverse licensure actions, adverse clinical privileging actions, adverse professional society membership actions, exclusion from federal or state healthcare programs, and any civil judgments or criminal convictions.4 Knowing the potential fallout of stipulations on a medical license will help guide the decision to offer employment to a physician candidate. Today’s employment settings have urged practice administrators to consider the financial impact of employing skilled physicians with board actions, even if those actions were settled in prior years. New attestation questions that ask, “Have you ever?” trigger a new look at physicians who otherwise provided the highest standard of care and professionalism despite an accusation. Recruiting high-quality physicians is difficult in certain specialties and rural areas, making physician candidates with a board action a consideration despite the risk. Risks can include denial from payer participation, negative public image and issues with medical malpractice insurance. But with proper preparation, the benefits of hiring such a clinician could outweigh the risk. Effects of board actions Physician recruitment When recruitment produces a physician with board action and stipulation, the initial reaction to not hire the candidate could be misguided. The decision to hire must be taken seriously, and a background investigation should be diligently completed. The successful integration of any physician applicant into the facility and community should first be considered by evaluating realistic physician competence, spousal commitment to the area, social and religious desires and family interests. When evaluating the integration of a physician with a board action, one must consider whether the setting can provide for requirements ordered by the licensing board. For example: If the physician is required to attend counseling and a conflict of interest exists, there may not be alternatives for compliance in a rural setting. The nature of the allegations will be the road map for determining whether the physician will succeed. Stipulations placed on a physician’s license can include fines, workplace monitoring, a required leave of absence, counseling and other mandates that consume significant time. Depending on the nature of the accusation, boards can require an investigation of a physician’s health, including physical and mental evaluations for chronic psychopathology or personality disorders. These exams are used to identify possible contributing factors to the professional boundary violation or questionable decision-making. Fitness for duty (FFD) evaluations are individualized assessments used to determine a physician’s occupational ability to perform tasks without risk.5 The psychological and financial stresses surrounding allegations can negatively affect the health of the practitioner. Treatment is tailored to the evaluation findings and can include counseling and treatment for contributing factors, such as addictions or functional impairment. The physician should be willing to provide the results of this evaluation to essential personnel. During an interview with a physician who underwent this test, the physician expressed that these evaluations extensively explored personal history of relationships, interactions and intimate details of an individual’s life. “It was humiliating and humbling to have some of the most intimate details of your life put on a piece of paper to share with others. … I would never want to go through that again,” the physician said. This statement speaks volumes to the warranted sensitivity surrounding this issue. Additional education regarding boundaries and professional ethics could be required of a physician. With board approval, this can be accomplished via webinars or training, and professional boundary programs. Such courses can be paid for with continuing education funds for physicians, and in some cases the trainings may be appropriate for an entire medical staff. Contract negotiations can assist the physician and the practice if the requirements threaten to exhaust the provider’s available benefits for time off. If the practice compensates the physician on a productivity model, this must be considered. Aside from administrative support costs and lost revenue, there will be business matters that require legal counsel. Thus, it is important to first determine who is responsible for the costs involved (i.e., physician-incurred versus the cost of doing business). Providing a safe opportunity during the physician applicant’s interview to tell his/her story will set the stage for transparency. An additional safeguard would be asking the candidate to sign a release for peer reference checks from their previous employer. Pay attention to character references, as they can add clarity. Preparing the practice Medical board actions regarding professional conduct are of major concern for practice administrators. Before offering employment to any physician, research and investigation should be the highest priority. A state licensing board will provide you with information on actions taken against the physician’s license, but it will not reflect pending investigation. It would be prudent to search the physician’s current and previous licensing boards. Many states will impose a reciprocal order based on actions from other states. The information will provide insight into the nature of the accusation, as well as what requirements will be placed on the physician. There are variables that should be considered when reviewing sanctions from other states, and great care should be taken to identify if the order is from a single incident or repeated offenses. It is of equal importance to investigate beyond what the medical boards can provide to obtain a clear understanding of the candidate’s character. Routine reference and background checks are important, but they are usually not robust enough to identify flaws that could jeopardize the practice. State repositories can provide information on a physician, which will provide additional insight. Health insurance companies represent another valuable source of information that can shed light on the potential impact to the practice. Payer participation history can provide information on the probability that the physician will be able to continue as a participating provider. A denial to participate from just one payer can perpetuate the self-disclosure requirement and trigger additional denials from other payers. Investigation into the nature of the accusation that led to a medical board action is the first step in forecasting the financial impact and possible safety risks to the practice. The value of a candid interview with the physician discussing the findings of your research cannot be overemphasized. Pay attention to the interactions of the candidate with the medical staff and administration during peer interviews. The safety of the patients and employees is the primary concern, making the findings of the investigation the foundation for successful integration or reclamation of physicians with such an action on their medical license. Consequences to the practice can include risk to the public if validity of the concern is not properly identified. It could also affect the ability to maximize reimbursement for services if the physician is not able to participate with payer groups or reduce revenue if privileges with other organizations were restricted or denied. Once the decision to offer employment has been made, policies and workflow(s) should be evaluated for successful integration. Policies should be in place to define expectations regarding standards of behavior, codes of conduct, harassment and professional boundary concerns. Workplace monitoring should be implemented if it is not already part of practice protocols. Establishing internal controls is highly advisable, regardless of board requirements or recommendations; this safeguard is necessary in preventing future reports and accusations. The addition of a physician with such actions will also increase the workload of support staff, and a high degree of attention must be placed on tasks surrounding the physician’s license and stipulations. It is crucial that procedures within the organization for reporting, privileging and credentialing are transparent. Under no circumstance should anyone within the organization be granted authority to report on behalf of the physician. Without careful attention, unclear questions on attestation questionnaires can lead to unintentional misreporting. When the physician is licensed in multiple states, boards can impose a reciprocal order of discipline from an action executed in a different state. The timelines can present a challenge for revenue cycle credentialing staff. Check all states where a physician has been licensed and know the status of each license.6 Each governing organization that inflicts a separate action for the same allegation becomes reportable to other organizations, including those already notified. Administration should pay attention to insurance credentialing. Payers often take a zero-tolerance approach to physicians with conduct actions. Attestation questions are typically very broad, so distinguishing between a single incident and a recurring issue can be difficult. Administration should be proactive with credentialing and identify which payers require the physician to disclose prior to renewal. However, not all payers require self-disclosure, making it difficult to advise on reporting. Legal advice should be sought to discuss the specifics of the action and the payer. Insurance companies can revoke a physician’s participation based on their definition of professional code of conduct. Based on personal experience, appeals typically must be made within 30 days of denial; investigations are seldom conducted prior to denial. If a resolution is not easily reached through explanation and proof of compliance with board requirements, a request for hearing could be granted by the payer’s credentialing board. Even if the benefit of participation with that payer does not outweigh the financial burden of appealing the decision to deny the physician, careful consideration should be made to the domino effect the denial could have on other payers. Keep in mind this, too, becomes another reportable action. When a physician with board actions is being onboarded, quality assurance measures must match the allegations brought against them. Ensuring appropriate personnel are assigned the responsibility of workplace monitoring is a key factor during this time. A variety of strategies can assist with providing a chaperone for all patient visits, such as using the chaperone as a scribe. This can be of value to the patient for education, potential referrals and follow-up. A well-trained scribe can also assist the physician by reminding him or her of preventative services and care management plans. Attempts should be made to avoid any strategy that could draw attention to the requirement of a chaperone; thus, to the physician in question. By promoting open communication and careful observation, stressors and triggers should be more recognizable over time. Consideration should be given to the physician when a patient complains about a situation outside the physician’s control. For example, when a patient asks for the chaperone to leave the room, the only alternative to reassurance is to offer a different chaperone or provider. This type of patient complaint should be discussed with the physician in the beginning, and the best approach to handling these instances should be agreed upon by the physician and administrator. These requests are often made when the reason for the visit is sensitive in nature. With practice, the physician can reassure that the chaperone is there to assist in providing the best possible care. Networking/Public relations There is a potential pitfall when a physician wants to apply for privileges in another organization, which could be detrimental to a practice if the physician is an integral part of the networking strategic plan. It could also be problematic for the physician if privileges are restricted or denied. Applying for privileges in another organization is not advised unless it is imperative for healthcare delivery. An example might include an employed surgeon whose services are needed in another facility for the benefits of patient care and/or cost savings. If privileges are restricted or denied, they are reportable to the NPDB. Although transparency is a valuable approach to combating speculation and administrative tension, it can negatively affect public relations. Care should be taken to explain obvious discrepancies in physician absenteeism and workflows within the practice. With the undeniable need to give accusers a voice, society has muted the accused. The fear is that when the pendulum swings in the other direction, it will be counterproductive to the responsiveness granted to the vulnerable. A zero-tolerance approach to a physician’s conduct of any magnitude will undoubtedly force physicians to contest allegations to the point of professional, social and financial ruin. The long-term repercussions include missed opportunities to better themselves as providers. For example, the casual setting of physicians allowing and, in some cases, insisting to be addressed by first name blurs the professional role. Boundaries are not limited to the physician/patient relationship; policies can and should be adopted to minimize risk for staff, as well. Whenever possible, cultivate a culture of respect and understanding among the staff. Conclusion It is essential for practice managers and chief executive officers to understand the impact of a board action to help guide their efforts in recruiting physicians. This information should serve as a warning that governing boards are taking a stronger stance on negative reports regarding professional conduct, making it difficult for the physician to participate with insurance payers, receive privileges from healthcare organizations and pursue prestigious roles within medical associations. It would be highly discouraged for physicians to surrender defense to unsubstantiated allegations simply to avoid further expense. However, this is not always an option. There are exceptional physicians who have learned from their experience and would be an invaluable addition to any practice. Regardless of the physician’s contribution, it does not preclude the practice from additional resource time and negative financial impact when employing such a provider. Preventative measures should be taken to identify and remedy situations for potential accusations. As soon as potential problems are identified, seek legal advice. Above all, support the physician and encourage open communication; it could be your practice’s most valuable investment. Notes: “Grounds for Medical Discipline.” Title 54: Professions, Vocations, and Business. Chapter 18 Physicians and Surgeons. Idaho Statutes. Available from: bit.ly/2YNgaCJ. Harris JA, Byhoff E. “Variations by state in physician disciplinary actions by US medical licensure boards.” BMJ Quality & Safety, 26(3), 200. doi:10.1136/bmjqs-2015-004974. “The National Practitioner Data Bank.” Available from: www.npdb.hrsa.gov. Harris, Byhoff. UC San Diego School of Medicine. “Fitness For Duty (FFD) Evaluation.” Available from: bit.ly/3hOLeso. SEAK. “The 10 Biggest Legal Mistakes Physicians Make in Their First Employment Contracts.” Available from: bit.ly/3gaIcOJ.