| TO:
SUBJECT: |
The Honorable the Members of the
Board of Regents
A Progress Report on the Regents Professional Disciplinary System |
In 1996 Commissioner Mills charged the new management of the Office of the Professions (OP) with devising a reform package that would make the Office more efficient, more effective, and create a streamlined disciplinary system that was more responsive to its customers than ever before. This report describes the dramatic achievements made in the professional disciplinary system since we last reported to the Board of Regents in 1996 and 1997.
This document summarizes the success in meeting the commitments to improving all aspects of the Regents professional disciplinary system without any additional funding. This was done with the active assistance of the State professional boards and the input of the State Legislature, professional associations, consumer groups and the public we serve. We will also highlight the major contribution that the Board of Regents has made to instituting and sustaining the process for more efficient and effective resolution of complaints of professional misconduct. As a lay governing body, the Board of Regents represents and safeguards the public by ensuring that licensed professionals in New York State provide competent and ethical services. The Board of Regents role in professional regulation and their active participation in the discipline process is a model that has been heralded by the Pew Commission. ("Strengthening Consumer Protection: Priorities for Health Care Workforce Regulation Pew Health Commission Taskforce on Health Care Workforce Regulation." October 1998)
The progress made in reforming the professional disciplinary system over the last several years has earned the State Education Department's Office of the Professions recognition for excellence from the national Council on Licensure, Enforcement and Regulation (CLEAR) in 1998 and 1999, and from the Governor of New York State as one of only six State agencies selected to receive the State's Workforce Champion Award in 1998. These awards recognized the work of the staff in the Office of the Professions, with the guidance of the members of the Board of Regents, in improving all areas of professional regulation, including the professional discipline process.
Due to public outreach efforts and increased enforcement efforts, the Office of the Professions is handling more professional misconduct complaints than in previous years. At the same time, the Office is continually streamlining all processes to strengthen its effectiveness in protecting the public. We have emphasized process innovations, increased statewide presence of disciplinary staff, and continual improvement. We are enhancing public protection through the timely resolution of complaints of professional misconduct and through public education and professional information initiatives. These initiatives advise the public of their rights and resources relating to professional services and regularly inform professionals of their responsibilities and of new developments in their professions. The Office of the Professions will pursue even greater effectiveness and efficiencies in consumer and professional outreach and in the resolution of disciplinary complaints. Creativity, energy and resources will continue to be dedicated to the Regents primary mission of protecting the public from incompetent and negligent professional services and promoting good practice in the professional community.
In 1997, OP reported to the Board of Regents on the status of the earliest reform efforts to streamline the disciplinary process. At that time, it was noted that:
OP is pleased to now report that the following progress has been made since 1997:
This report shows how, while receiving more professional misconduct complaints from the public and other state and federal agencies than ever before, the Office of the Professions has continued to improve its effectiveness and efficiency in protecting the public health, safety and welfare of New Yorkers. Beginning in 1996 and in 1997 we made a commitment to the Regents to improve the discipline process to ensure the best possible protection of the public through efficient and fair resolution of professional discipline complaints. We have met that commitment in many aspects of our work and continue that commitment in pursuing the Regents strategic goals. At the same time that we are implementing an improved professional disciplinary system, we are promoting good practice among professionals and helping consumers to identify and prevent professional misconduct through our increasing outreach efforts. Key to all of these initiatives is the willingness of the Board of Regents to provide important guidance and to dedicate an unprecedented amount of time to participating in the disciplinary system.
The focus on strategic goals to resolve professional misconduct complaints more efficiently has resulted in major improvements in the disciplinary system. The achievements set out below reflect efforts to better inform the public about their rights and resources as consumers of professional services, to more efficiently resolve less serious complaints of professional misconduct, and to ensure that complaints that are advanced to the Regents are the most serious.
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Final Disciplinary Actions
1997-1999 |
| 1997 | 1998 | 1999 | ||||
| Corrective Action | 439 | 474 | 827 | |||
| Administrative Warning | 71 | 100 | 121 | |||
| Violations Penalties | 337 | 392 | 273 | |||
| Regents Disciplinary Action | 491 | 408 | 555 | |||
| Moral Character | 23 | 15 | 19 | |||
| Restorations | 47 | 39 | 25 | |||
| Illegal Practice | 45 | 57 | 38 | |||
| Total | 1,453 | 1,485 | 1,858 | |||
Our success in meeting Regents goals for swiftly and fairly resolving professional misconduct complaints has been achieved through a comprehensive approach to all aspects of the process and through a genuine team effort. That team effort continuously involves the Board of Regents, particularly the members of the Professional Practice Committee, the State professional board members, and staff in the Office of the Professions. Members of the Regents Professional Practice Committee provided the policy direction that led to the process of reengineering all aspects of the discipline process. Those efforts resulted in much tighter cycle time goals for the resolution of complaints and an even greater participation by the Regents in all aspects of the disciplinary process. Listed below are the major initiatives that have led to the achievements noted in the preceding section.
Prior to the reform, cases that could not be resolved through a consent were primarily resolved through formal hearings. On average, formal disciplinary hearings can take up to three years and cost the system a minimum of $7,500 per case. ISC's which provide swifter justice generally cost $500. Because more cases were settled after an ISC instead of a lengthier and more costly hearing process, approximately $500,000 has been saved annually. These funds were reinvested in the disciplinary system permitting the ISC's to be expanded to all professions with appropriate supports and training for professional Board members. The effect of the use of the ISC has been threefold: improved efficiency, fairness, and enhanced public protection. Since licensees accused of professional misconduct continue to practice until their cases are resolved, the efficiency of the discipline process is essential to public protection. Similarly, professionals who may be wrongly accused are equally well served by having their records cleared in a shorter period of time.
The Complaint Resolution Process (CRP) was first implemented in a 1996 pilot program for the professions of dentistry, nursing, pharmacy, and psychology. In January of 1999, the process was expanded to all professions based upon the success of the pilot program. The CRP has led to marked process improvements in the resolution of complaints. The CRP consists of two key elements: the "Early Involvement" (EI) and the "Informal Settlement Conference" (ISC). The EI, occurring within 120 days of receipt of the complaint, involves the investigator, prosecutor, and professional board member who evaluate the merits of the complaint and provide direction for case development. Within six months of receipt of the complaint, the subject and attorney are invited to an ISC, with the prosecutor and a member of the applicable State board to discuss the case. This conference is facilitated by the Professional Conduct Officer (PCO) and frequently leads to the resolution of the case without the necessity of a formal hearing.
Informal Settlement Conferences (ISC) have become an indispensable tool in the resolution of cases involving serious misconduct. The ISC provides a negotiating framework where all participants are present and afforded the opportunity to discuss their respective positions with candor and clarity. The result has been that formal hearings are used only after negotiations have been exhausted and serious factual disputes remain.
In February 1997, the Regents Committee on Professional Practice approved recommended modifications of the Licensure Restoration Process. The major changes included:
The new restoration process instituted a formal application procedure. The petitioner is now responsible for providing complete and comprehensive information within a uniform application. This information profile was previously developed by Department staff. These reforms further support a system that ensures that licenses are restored only to those individuals who present compelling cases that restoration poses no risk to the public.
Reforms, including the three-year waiting period and application fee, have significantly decreased both the total number of restoration applications and the number which lacked merit. Applications received between 1989-1997 averaged 41 per year. In 2000, we project that we will receive approximately 16 applications. Since the implementation of the new application in the fall of 1997, we have been assessing the impact of the new process upon cycle times. From August 1997 through December 1999, 57 cases have been opened using the "new system." Comparing the new system to 57 cases in the prior three years, a 25% improvement in process cycle time has been realized. While the data show improvements, our goal is to further reduce the time it takes for restoration petitions to reach the Board of Regents from an average of 42 months to 18 months.
To equip all board members with the tools needed to effectively implement the newly reformed discipline process, a regular comprehensive training system has been instituted.
Since 1998 the Office of the Professions has been holding regional discipline training seminars for all professional board members across each of the 38 professions. In October 1999, we held our first Annual Statewide Board Member Discipline Seminar to supplement the five regional discipline training sessions that had been held in 1998. One hundred percent of the participants indicated that they were satisfied with the sessions. This event not only introduced newly appointed members to their responsibilities, but also provided an overview of each component in the Complaint Resolution Process and an understanding of the regulation of the professions by the Board of Regents. The highlight of the event was a presentation of a mock case fact pattern that was then discussed in small groups consisting of multiple professions, new and experienced members, and both professional and public members. The participants deliberated, as they would in a hearing panel, to better understand the process and clarify the role of the professional board member in the discipline process. Additionally, this portion of the seminar stressed the importance of consistent decisions. OP will continue regular training to address common concerns about board member roles in the discipline process across the State professional boards.
The Office of the Professions operates through a statewide network of nine regional offices, enabling it to investigate complaints from every area of the State in a timely manner. The regional offices allow staff to establish effective working relationships with local governmental, law enforcement institutions and employers of licensed professionals. These relationships are critical to the timely investigation of cases and to the promotion of responsible practice of the professions. In addition, all regional offices support the ongoing outreach programs for the public and for licensed professionals.
In the last 18 months, OP has added 17 investigators to regional offices throughout New York State, increasing OP's capacity to conduct more investigations within shorter time frames. The value of timely investigations is critical to instilling public confidence by demonstrating that the regulatory agency is effectively protecting the public's health, welfare and safety.
Since 1998, the regional prosecutorial staff in district offices was increased from one to five. Prosecutors are now assigned to four regional offices with plans to add prosecutors to two more regional offices in the near future. Assigning prosecutors to more regional offices has changed the way OP does business. Every aspect of the prosecution phase of a professional discipline case can be completed in a regional office. The investigators and prosecutors have also forged productive professional relationships that have had a positive effect on professional regulation throughout the State.
For more than a century, the Regents have been in the forefront of public protection with respect to professional regulation in New York State by ensuring that the public is "served by qualified and ethical professionals who remain current with best practice in their fields." (Leadership & Learning, NYS Board of Regents Strategic Plan, Goal 3. September 1998). The Regents have consistently taken a comprehensive approach to public protection that supports the professional disciplinary process. This approach includes a commitment to high quality professional services, swift justice for professionals facing disciplinary charges, and easily accessible information for consumers and professionals.
The Regents leadership has made education for and outreach to both licensees and consumers a priority in promoting sound professional services and protecting clients and patients. For the past two years an average of 2.9 million contacts per year have been initiated through the outreach campaign.
Outreach includes a wide variety of informational items, such as advisories and practice updates for licensees, information for prospective licensees and clear and concise information for consumers. The following chart illustrates the major types of information provided.
Education and information are critical to the prevention of professional misconduct and the quick identification of unlicensed professional practice. Career-long education and training for professionals helps to prevent professional misconduct before it occurs and contributes to safe professional practice. Safe professional practice reduces complaints, harm to the public and the need for costly and time-consuming misconduct investigations and prosecutions. Under the direction of the Board of Regents, the Office of the Professions regularly communicates with licensed professionals to keep them up to date on changes in regulation, continuing education requirements and the latest practice guidelines.
The Regents have also led creative and innovative efforts to involve the public in initiatives to promote informed decisions, the expectation of high quality professional services and prompt reporting of suspected instances of professional misconduct and unlicensed practice. Members of the public generate about one-third of the 6,000 professional misconduct complaints received by the Office of the Professions. As noted earlier, the number of complaints from the public has increased over 30% since 1997 when the professional information and public education initiatives were launched.
The ongoing public outreach that is so critical to the increased reporting and prevention of professional misconduct consists of the following components:
The power and reach of the Web is key to our public and professional education initiative. Maximizing outreach via technology will reinforce the responsibilities of licensees and assist consumers in obtaining the information necessary to make decisions about professional services. We have witnessed the results of many of our outreach initiatives. For example, in June 1997 we reported that our home page was being accessed approximately 220 times a day. Today, the license verification feature is used for over 4,500 license verifications a day. Nearly 4.6 million license verifications have been performed since 1997 when the service first became available.
We continue to look for ways to provide more convenient and new types of services to professionals and consumers. By keeping our constituencies—both public and professional—informed of best practices, their rights and responsibilities and the ways to report professional misconduct and unlicensed practice, we are supporting the professional discipline process in preventing unprofessional conduct and patient/client harm. More specific information about the content and use of the Web may be found in Appendix A of this report.
The Board of Regents has licensing jurisdiction over 38 professions and disciplinary jurisdiction over 35 professions¹. In this role, the Board of Regents acts through the Department's Office of the Professions, assisted by the State Boards for the Professions, under the guidance of the Regents Committee on Professional Practice (PPC). The PPC is critical to the Regents jurisdiction by providing ongoing policy guidance to the regulatory system and by directly reviewing recommendations for disciplinary actions and restoration petitions. The Board of Regents makes final determinations in all serious professional misconduct cases. The Board of Regents also determines the outcome of applications for restoration of revoked or surrendered licenses.
This overview describes the actions taken to address complaints of professional misconduct. The following chart shows the routes possible both for complaints of a more serious nature that require Regents action and for minor and technical cases that do not require Regents action.
The Board of Regents jurisdiction in the disciplinary process includes many types of misconduct complaints and resolutions to ensure public protection. Complaints are received from the general public, other licensed professionals, institutions, and from other state and federal agencies. All professional misconduct complaints are investigated by the Office of Professions. If professional misconduct is substantiated, there are several possible results. The following is a list of those options ranging from least serious to most serious.
A Corrective Action Required (CAR) letter is issued for the least serious misconduct and for conduct that does not rise to the statutory definition of professional misconduct but which is a practice issue, such as negligence. For example, failure to wear a name badge could result in a CAR letter. This letter is not a disciplinary action, not public information, and does not constitute a disciplinary record for the licensee.
An Administrative Warning (AW) (authorized under Section 6510 (2)(b) of the Education Law); letter is issued when there is substantial evidence of minor and technical professional misconduct that does not warrant a more serious disciplinary penalty, for example, failure to keep an accurate patient record where there is no patient harm or negative outcome. This is not a formal disciplinary action, not public information, and does not constitute a disciplinary record.
A Violations Committee addresses minor and technical misconduct which does not endanger the public health, safety, or welfare. A fine of not more than $500 per specification and/or Censure and Reprimand is appropriate for this level of misconduct. An example would be a minor medication administration error. A Violations Committee proceeding requires an agreement by the licensee not to contest the charge or allegation. Violations Committee results are disciplinary actions, are public information, and create a disciplinary record.
The Regents act directly upon the most serious complaints of professional misconduct by reviewing and approving consent applications, participating in Regents Review Committees (RRC), and reviewing and approving all recommendations on "charge" cases in the PPC. These cases consist of three general categories: direct referrals, hearing panel recommendations, and consents and surrenders. These cases become "charge" cases when the Professional Conduct Officer (PCO) determines, after consultation with a member of the State professional board, that there is substantial evidence of serious professional misconduct. The complaint is then referred for formal charges. The appropriate penalties for these cases range from license revocation to actual or stayed license suspension, public service, and/or fines up to $10,000 per occurrence of misconduct. The final determinations in these cases are recommended by the Professional Practice Committee and made by the Board of Regents.
Direct referrals (authorized under Section 6510(2)(d) of the Education Law); are cases received from other agencies and are based on a criminal conviction or an administrative violation. These cases are directly referred to a Regents Review Committee because they are predicated on a finding of guilt by another jurisdiction or enforcement agency. Examples of cases that are directly referred to the Regents Review Committee include cases such as criminal convictions for Medicaid fraud or findings of guilt by the Commissioner of Health (authorized under Article 33 of the Public Health Law); in proceedings involving such misconduct as diversion of controlled substances.
If a consent resolution is not agreed to by the licensee, the case is referred to a three-member panel of the State professional board (authorized under Section 6510(3) of the Education Law) . The hearing panel recommendation is submitted to the Regents Review Committee (RRC) which makes a recommendation to the full Board of Regents for final action.
The Regents also act on complaints that are settled through the consent and surrender process. Because consents and surrenders are settlements agreed to by all parties, they are not presented to a hearing panel or the RRC. They are reviewed by a single member of the Board of Regents, the Committee on the Professions, and the PPC before final action by the Board of Regents.
The Board of Regents makes determinations on petitions for the restoration of revoked or surrendered licenses. The restoration process is the method by which a professional licensee may petition the Regents to have his/her license restored. All restoration petitions require a three-year waiting period and involve review by a panel of the applicable State professional board. They also require the reviews and recommendations of the Committee on the Professions and the Regents Professional Practice Committee before final action by the full Board of Regents.
The Board of Regents acts on Summary Suspension proceedings (Regents Rules, 8NYCRR Part 17.9) which remove a licensee from practice while the regular disciplinary proceedings take place. The Office of Professions may apply for a summary suspension if it is believed that protection of the public health, safety or welfare requires emergency action. Summary suspensions are sought in response to complaints of the most serious misconduct, which often result in patient harm or which have the potential for serious patient or client harm or other egregious misconduct.
The Department makes determinations of whether an applicant for licensure is of good moral character. If a licensure application indicates that a question of moral character exists, an investigation is undertaken and a hearing is held before a panel of the applicable State board. The hearing panel determination is reviewed by the Committee on the Professions which makes the final decision.
We continually work towards the development and maintenance of a state-of- the-art system of professional regulation. As we progress, the system will be even better at providing swift justice to licensed professionals and the greatest protection possible to the public while being responsive to the evolving nature of professional practice. Based on input from the field, nine major horizon issues that will affect professional regulation over the next century have been identified. Horizon issues including telepractice, corporate practice of the professions, illegal practice, continuing competence and others have been discussed with the Board of Regents for policy direction and guidance. The Board of Regents and the Department, with the assistance of the members of the State professional boards, will be addressing these issues throughout the decade as they continue to impact professional regulation. These horizon issues and the specific topic of professional discipline will be among the major subjects discussed at the Regents Conference on the Professions. This conference, Professional Regulation in the 21st Century, is scheduled for October 3, 2000 at the New York City Bar Association.
We do not anticipate making drastic changes in the current disciplinary system, which we believe is sound. The Office of the Professions, however, will continue to strive to streamline the current processes and decrease cycle times to improve service and increase public and professional confidence in the professional discipline process. We will continuously assess all of our procedures, measure productivity, and monitor reengineered processes. We are also seeking more and more ways to use technology to achieve greater productivity and to reach more of our public. Examples of such approaches include making the discipline complaint form and information about the complaint process available on the Web.
The Office of the Professions, with the direct involvement of the Commissioner of Education, has forged an innovative partnership with the New York State Attorney General to combat the illegal practice of the professions. The three-pronged approach includes voluntary compliance agreements by the State Education Department and civil enforcement and criminal prosecution by the Attorney General's office. The Attorney General is now reviewing cases for criminal prosecution that may not have been considered previously. The mutually agreed upon goal is to prevent illegal practice in all of the professions for the safety of New Yorkers and to address the actions of those who do not practice within the law.
The Board of Regents and the Education Department's efforts to protect the public are most effective if they can prevent professional misconduct before it ever occurs. Through increased outreach to licensed professionals and consumers, information about competent professional practice will continue to be made available to all New Yorkers. This outreach effort will continue to:
Educational outreach for consumers will include information about the professions and consumer rights. Information for professionals will include an increased number of practice advisories as well as news of statutory and regulatory changes. This information will be available in multiple formats (print, Web, CD-ROM, etc.) and in multiple languages. The expanded outreach will increase the use of direct mailings, the Web, and meetings and conferences to convey the Regents public protection and professional competence message.
We are confident that we will successfully achieve our goals for continual improvement, effective outreach to licensees and the public, and for addressing horizon issues with the guidance and support of the Regents through the direct role of the members of the Professional Practice Committee.
The Office of the Professions web site (www.op.nysed.gov) features useful information and services for licensed professionals, applicants for licensure, and consumers. A wide variety of information is regularly made available to professionals and the general public to keep them current and informed. Such features include:
Both professionals and the public also have Web access to information and registration materials for the Regents Conference on the Professions 2000.
This body of information supports sound professional practice and will reduce the number of complaints because misconduct can be prevented before it occurs. Likewise, consumers who are more knowledgeable will file fewer unsubstantiated or inappropriate complaints. The results will allow staff to devote time to the substantiated and serious misconduct complaints and the allegations of illegal practice.