Presentation to the National Medical Association on the issue of bias in Medical Board and other health professional licensing and enforcement and recommendations for preventing and managing investigations.

1. Justice or Just Us?
Understanding the
Issue of Bias and
Managing Health
Professional
Licensing
Enforcement
Presented by:
Harry Nelson

2. I. Initial Reflections
II. Structural Challenges
III.Understanding Health Professional
Licensing Enforcement in California
IV.Managing the Disciplinary Process
V. Avoiding Discipline

3. Bio
• Brazil-Detroit-Hawaii-Chicago-Los Angeles
• Author, From ObamaCare to TrumpCare:
Why You Should Care
• Managing Partner, Nelson Hardiman
• American Addiction Treatment Association,
Board Chair
• Adaptive Healthcare Fund
• Regulatory and reimbursement compliance and strategy --
-solving healthcare industry problems related to fraud and
abuse, clinical safety, licensing, data security
-applying lessons to give proactive advice

4. I. Initial Reflections
4

5. What We Talk About
When We Talk About Bias
•Explicit vs Implicit Bias
•Unconscious/Semi-conscious Bias
(reflecting broader societal biases-
assuming well-trained MDs are
incompetent/less competent)
• Institutional Bias: when an
institution operates in ways that
disadvantage particular group 5

6. CaliforniaResearchBureauStudy(Jan.2017)
“DemographicsofDisciplinaryActionbytheMedicalBoard
of California(2003-2013)”
• Commissioned by MBC at request of GSMA
• Reviewed archival data of 125,792 physician records + 32,978
complaint, investigation and disciplinary for disparate treatment
of minority physicians.
• Findings: African-American + Latino MDs more likely than
white or Asian-American MDs to:
• receive complaints
• have complaints escalate to investigations
• have investigations result in discipline
• Conclusion: No conclusive proof of racial bias, but results indicate
some evidence of disparate treatment for minority physicians in
MBC disciplinary outcomes.
6

7. InformalSurveyofDefenseBar
• Issue is not who’s in charge so much as assumptions
underlying the process
• Deference to elite medical schools, programs, and
backgrounds?
• Bureaucratic overreach or aggression by Board medical
consultants beyond their own areas of expertise – problem
of heavy handed arrogance?
• Unconscious or semi-conscious racism? Negative
predisposition of quality or biased assumptions of lower
quality postgraduate training?
7

8. II.
Structural Challenges
8

9. Where is the Locus of Power
9
Executive
(Governor)
Department of
Consumer
Affairs
Medical Board
of California
Division of
Licensing
Department of
Medical Quality
Division of
Investigations
Health Quality
Investigation
Unit
Legislature
(Assembly +
Senate)
Judiciary Media
Funding
Legislative
Mandates

10. Structural Challenges: Lessons I learned
watching The Wire
10
1. Everyone in the power structure
is under pressure for “results”.
2. Metrics can become a crutch and
lead to a focus on stats over
substance. The wrong metrics
can be toxic to an ecosystem.
3. Personal ambitions sometimes
prevail over collective goals.
4. Real bad guys are hard to catch.

11. Investigative Mindset
• Demonstrated public interest/media interest in safety risks and
illegal healthcare operations
• Criticism of Medical Board as too soft on doctors
• Practice settings away from peer review and “safety net” of larger
group practice
• solo/independent physicians
• non-board certified MDs
• Direct-to-consumer practice areas (e.g. pain, cosmetic, weight
loss) with
• perceived safety risks
• consumer fraud-marketing concerns
• controlled substance risks
• risk of unlicensed/unsupervised/undersupervised
personnel, nonphysician ownership and control

12. The Pressure for Results
•It’s easy to find “repeated acts of
negligence” and “inadequate patient
records,” etc.
•Standards of practice,
documentation, prescribing have
changed faster than most doctors
have kept up
•Complex regulatory requirements
mean every MD is at some risk

13. III.
Understanding Medical Board
Enforcement
13

14. How MBC matters get started
0
10
20
30
40
50
60
70
MBC Complaints

15. The Phases of a Medical Board Matter
15
Complaint Investigation Accusation
Investing time and energy early in
the process is key.

16. 0
1000
2000
3000
4000
5000
6000
7000
8000
9000
10000 2015-2016
8,679 Complaints
1,654 Investigations
345 Accusations
41 Referrals for
Criminal
Prosecutions
Trends: more
undercover
investigations,
criminalization of
MD conduct
How are complaints resolved?

17. The “Ladder” of Discipline
0
20
40
60
80
100
120
Public Reprimand
Probation
Revocation/Surrender
Withdrawn/Dismissed
Majority of discipline:
not career-ending
(probation +
reprimand)
Once accusation is
filed, likely outcome
is hearing/settlement
for some discipline.
Withdrawals
/dismissals of are
rare because of
burden of proof and
17

18. IV. Managing the Disciplinary
Process
18

19. Take Complaints Seriously
• At the CCU level, complaints are focused and much
easier to resolve. Invest the time and energy to do so.
• Involve counsel – do not handle alone. “Friendly”
board investigators are not your friends.
• Request additional time as needed to respond
appropriately.
• Get the summary of complaint.
• Submit a comprehensive, detailed responsive letter.
• Identify need for consultant on standard of care
issues.

20. Go into Interviews Prepared
• Never go to an interview without counsel.
• Review and prepare responses – demonstrate clinical
knowledge that may be missing from the
documentation.
• Provide mitigating information.
• Attitude is essential: being reflective and thoughtful
about lessons learned and what you could have done
better is key. Often the big questions are: Is this a
doctor we need to worry about? Or, alternatively, is
our work already done by the doctor’s proactivity?

21. Once the Accusation is Filed
•Think of hearing as a last resort.
Negotiate for an outcome you can survive
professionally.
•Expert credibility matters.
•Your integrity is the most precious asset.
21

22. Settling Cases
•Invest in settlement
presentation/efforts.
•Focus on mitigation – corrective action
• Take responsibility where appropriate.
• Express remorse.
• Voluntarily pursue needed
remediation/CME/corrective action
• Importance of being part of professional
and broader community and being of
service 22

23. V. Avoiding Discipline Proactively
23

24. High Risk Issues
• Prescribing (esp. controlled substances)
• Recordkeeping
• Personal use of drugs and alcohol
• Reportable malpractice, peer review
• Supervision of subordinate personnel
• Boundaries (sexual conduct)
24

25. Prescribing Risks
• Documenting
• the physical exam
• the indication
• the informed consent
• Self? Family?
• Avoiding excessive prescribing
• Treatment Plans
• Focus on opioids/controlled substances
25

26. Recordkeeping
• Documentation: The insurance company rule: if you
didn’t document it, you didn’t do it.
• History + Physical Exam
• SOAP Notes
26

27. Personal Conduct Issues
• The heightened risk for professionals in managing stress
and mental health
• Alcohol/Drugs- Driving while impaired – significantly
heightened risk issue for MDs
• Self Prescribing
• Any crime of any kind
• Boundaries
• Female chaperones
• Unprofessional conduct extends to personal
relationships
27

28. Supervision of Subordinates
(NP, PA, RN, LVN, MA)
• Direct responsibility for subordinate conduct
• Inadequate supervision
• Different scopes of practice for each profession. Exceeding
scope = aiding and abetting unlicensed practice of medicine
• NP/PAs – need for details documentation and ongoing
review
• RNs – no new patient exams, limited place for standardized
procedures, and direct supervision for complex functions
• MAs – limited to technical support service functions
28

29. Business Risk Areas
•Inappropriate Business and
Financial Relationships
•Unlicensed managers/investors
•Marketers
•Supervision/Scope of Practice
•Marketing
•Billing Fraud 29

30. Proactive Compliance
• Complex multitude of regulatory - investing resources into
compliance proactively and as corrective action-remediation
• Understanding risks
• Implementing written policies and procedures
• Designating compliance functions
• Conducting effective training and education
• Developing effective lines of communication
• Conducting internal monitoring and auditing
• Enforcing standards through well-publicized disciplinary
guidelines
• Responding promptly to detected problems and undertaking
corrective action
• Engage counsel and manage risk proactively 30

31. Final Thoughts
• Certain kinds of doctors are likelier to face MBC review than
others and at heightened risk of escalation in process.
• Understanding the Board’s pressures, focus, and process –
and adapting responsively to address these “pressure
points” can reduce risk.
• Above all, invest in compliance.
• Investing in compliance reduces risks of scrutiny and
problems when issues arise, and hopefully profits, peace
of mind, strategic opportunities.
• Inattention to compliance leads to headaches, legal
problems, and fear-driven, reactive, less profitable way of
doing business.

32. Questions? Comments?
Airing of grievances?
Harry Nelson
Nelson Hardiman, LLP
310.203.2800
hnelson@nelsonhardiman.com