How Board Discipline Is Being Compromised

How Board Discipline Is Being Compromised

July 2020

Licensing boards use discipline to help remedy deficiencies in otherwise skilled practitioners. The end goal is a robust supply of trusted professionals. All too often, though, that goal is compromised by what happens in the aftermath of discipline.

State licensing boards have one overriding objective, to protect the public. They are not out to punish wrongdoers or serve some abstract notion of justice. If a board believes a practitioner is incorrigible, it will revoke their license without hesitation. If it thinks an otherwise competent professional can learn from their mistakes, the board will use its disciplinary powers to make sure they do so before allowing them to return to practice. 

Practitioners themselves rarely see things this way, at least at first. They generally start out condemning the board as unfair. Its disciplinary order, they say, is disproportional to the actual offense. In their eyes, it is not discipline at all, but spiteful punishment meant only to inflict pain.

At this point, disciplined practitioners can go one of two ways. Some get stuck in their rage towards the board and continue to blame anyone but themselves. Others, most in fact, stop blaming others and accept responsibility for what they have done. The board is not punishing them, they realize. It is giving them an opportunity to make a mid-course correction and salvage their careers by becoming better, more knowledgeable healers. Those who seize the opportunity spend months exploring their own vulnerabilities, those aspects of their inner life that may have contributed to their professional misconduct or ethical/legal violation. It’s a difficult road to follow, but with the right support from therapy and/or remedial education, most find their way. They return to work more self-aware, with a renewed commitment to the practice of medicine. For these professionals, board discipline ends up being a positive experience. 

THE DARK SIDE: WHAT HAPPENS IN THE AFTERMATH OF DISCIPLINE

Many recovering from the shock of discipline call what happens next, “the gift that keeps on taking.” Just as these chastened professionals are ready and eager to return to work, outside forces often step out of the shadows to block their way forward. Obstacles unforeseen, unanticipated or poorly prepared for begin to emerge.  For those who have spent time working to improve themselves, the whole experience is maddening and demoralizing. The seemingly endless repercussions of board action reawaken their earlier feelings of persecution and threaten the momentum that’s been building since the board took action. 

Each person’s experience is unique, but the most common sequelae of discipline include loss of insurance, exclusion from healthcare, and loss of specialty certification and/or employment.

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Loss of insurance

Boards use probationary periods to evaluate and confirm their faith in a practitioner’s rehabilitation. Insurance companies, however, often see the decision to place someone on probation as a red flag. They view probation not as a chance for practitioners to prove they have changed, but as proof that they can no longer be trusted. 

Insurers make decisions based on their assessment of risk, and board action – whether it’s probation or simply a reprimand – tends to trigger a review of a practitioner’s risk profile. The process can be opaque, but the conclusion is often that the risk has become unacceptable. Practitioners who have been disciplined and completed the difficult journey from outrage to enlightenment are dropped from insurance panels. Once this happens, the practitioner can no longer take patients’ insurance. The only people they can help are those wealthy enough to pay them directly. For many professionals, it is the final blow.

Exclusion

The List of Excluded Individuals/Entities (LEIE) is another potential career killer sometimes triggered by board discipline. Unable to accept payment from Medicare or Medicaid, a practitioner whose name appears on the LEIE can no longer treat patients who rely on either of the huge federal programs. Nor can listed professionals be employed in any capacity by an organization that accepts funds from Medicare or Medicaid. 

Anyone guilty of abusing patients, defrauding the programs, or any health care-related financial felonies is automatically placed on the LEIE. But the Department of Health and Human Services’ Office of the Inspector General (OIG) has wide discretion to include others it deems untrustworthy as a result of board discipline. 

Often, the exclusion period coincides with the length of the disciplinary action, but exclusions do not end automatically at the conclusion of the specified period. The person on the list has to file an application for reinstatement. Having satisfied their board that they are ready to resume their duties, these practitioners must now convince the OIG as well. 

Loss of specialty certification

State medical boards are required by law to report to the National Practitioner Data Bank (NPDB) any “adverse action” they take against a professional’s license, including reprimand, censure, and probation. Once that happens, many disciplined individuals lose their specialty board certification. It generally comes as a rude shock, says PBI faculty member Catherine Caldicott, MD.

“Nobody tells them when they are disciplined that they may lose their board certification. The first notice they get is a letter in the mail from their specialty board,” she says. 

The rules vary from state to state and specialty to specialty. So Caldicott advises practitioners to check their specialty or sub-specialty websites prior to going before the board. If they find that an action against their license might adversely impact their certification, they can talk to both the licensing and the certifying boards about ways to avoid the worst case. Otherwise, they may find themselves unemployable in the field they have devoted their careers to. 

Loss of employment

Of course, employers can keep de-certified specialists on staff if they choose. It’s a question of trust. Can a hospital continue to trust someone who has lost their certification and been disciplined for unprofessional or unethical behavior? They might if they have a long-standing relationship with the person. Absent that, most administrators are simply unwilling to take the risk. 

“After everything they have gone through and all they have learned, they’re fired,” explains PBI CEO Stephen Schenthal, MD. “It’s the kind of devastating blow boards rarely hear about.” 

NO TIME FOR RETRIBUTION

This rain of blows can floor a practitioner. Many are slow to get up and fight their way back. Others regress to the “board bashing” stage they overcame early in the process. And this time it’s a lot harder to move on.

That first time around, they realized, the board had given them a chance to confront their mistakes and reclaim their careers. Now it seems that insurance companies, regulators, and employers are ignoring all the work they have done, all the progress they have made. Instead of encouraging them to improve, these powerful entities are throwing up roadblocks. This time, the experience feels a lot more like punishment than discipline. 

For the sake of their patients and their careers, most practitioners make it past the roadblocks and find their way back to successful careers. But they lose precious time along the way. Even more damaging, they lose enthusiasm. 

Schenthal suggests it’s time for insurers, regulators, and employers to rethink their policies. “Each case is unique, of course,” he says. “But it’s hard for me to see how these punitive actions reduce institutional risk or improve public safety.” According to Schenthal, the professionals being penalized posed a lot more risk before they were charged and disciplined. “I would argue these practitioners pose far less risk now than those who have not yet faced up to their deficiencies or taken steps to overcome them,” he says. 

“Today, with skilled health care in such high demand,” adds Schenthal, “retribution is a luxury we just can’t afford.”  


PBI offers several 1-3 hour online risk management courses that illuminate common red flags for clinicians. Register and learn about the changes you can make today to avoid risky situations: