Neal B. Kauder, President VisualResearch, Inc.

1. Sanctioning Reference Points Elizabeth Carter, Ph.D, Executive Director, Virginia Board of Health Professions Neal B. Kauder, President VisualResearch, Inc. Presented at the 2004 CLEAR Annual Conference September 30 – October 2 Kansas City, Missouri

2. Need for Study • Questions raised relating to consistency, neutrality, and appropriateness of Health Regulatory Board sanctions • Only anecdotal information previously available • Hard data unavailable on factors that relate to sanction decisions – aggravating or mitigating factors, etc. • Virginia Board of Health Professions, Work plan, Spring 2001 Sanctioning Study Virginia Department of Health Professions

3. Purpose “…to provide an empirical, systematic analysis of board sanctions for offenses and, based upon this systematic analysis, to derive reference points for board members and an educational tool for respondents and the public” Virginia Board of Health Professions, Work plan, Spring 2001 Sanctioning Study Virginia Department of Health Professions

4. Guiding Principle “ … for any sanction reference system to be successful, it must be developed with complete board oversight (representatives from various boards), be value-neutral and grounded in sound data analysis, and be totally voluntary…” DHP Internal Committee & Staff, Fall 2001 Sanctioning Study Virginia Department of Health Professions

5. 13 Boards, Each with Different Case Types and Sanctioning Process… How to Get Started? • Medicine (selected as first board) • Large number of cases • Good variation in case type • Eagerness to participate Sanctioning Study Virginia Department of Health Professions

6. Theoretical Framework • 32 personal interviews and various committee meetings--- • Medicine develops “Blueprint” • Overall sanctioning goals • Purpose of reference points • Analytical approach • Measuring case complexity & factors to collect • Key features of reference system Sanctioning Study Virginia Department of Health Professions

7. From Blueprint: • Purposes of SRPs • Make sanctioning more predictable • Education tool for new board members • Add empirical element to a process • A resource for staff and attorneys • “Neutralize” unwarranted inconsistencies • Validate board member recall of past cases • Help ‘predict’ future caseloads (need for services, terms)  Sanctioning Study Virginia Department of Health Professions

8. From Blueprint: • Key Features • Voluntary - maintain complete discretion • Accommodate full array of mitigating and aggravating factors • Operate within existing statutes and regulations • Not too specific or narrow • Allow multiple sanctioning goals to be considered Sanctioning Study Virginia Department of Health Professions

9. From Blueprint: • Analytical Approach • Descriptive model: Answers “What is?” • Historical data analysis of relevant factors • Descriptive model/normative adjustment: Answers “What ought to be?” • Data serves as baseline, boards modify to serve goals Sanctioning Study Virginia Department of Health Professions

10. Method - Steps • Conduct personal interviews • Review literature/profile states • Build consensus for theoretical framework & methods • Identify sample & collect data • Identify “historically relevant factors” • Translate factors into usable reference system • Implement, get board feedback, evaluate usefulness Sanctioning Study Virginia Department of Health Professions

11. Study Sample • All violations going back 6 years • 6 year period captures 447 “cases” • Event based analysis -- “cases” vs. “orders” Sanctioning Study Virginia Department of Health Professions

12. Data Collection Sources • Case file presented to board • Practitioner Information website • Microfiche • Minutes of hearings • Freedom of Information Act (FOIA) files • Staff • Ad hoc data reports Sanctioning Study Virginia Department of Health Professions

13. Descriptive & Multivariate Analysis • Descriptive – describes cases in a basic way • What sanctions do respondents receive (by offense) • How may respondents have prior record? • How many respondents have ongoing substance problems? • What injury levels occur? Sanctioning Study Virginia Department of Health Professions

14. Descriptive & Multivariate Analysis • Statistical models help explain how similarly situated cases have been handled in the past • How much weight have boards assigned to factors? • How influential is prior history, injury level, etc. • What respondent or offense factors predict to suspension? Multivariate – Tests the Influence of Factors Simultaneously Sanctioning Study Virginia Department of Health Professions

15. Treatment/Monitoring Sanction Groupings What are we trying to predict ? No Sanction Reprimand Loss of license Revocation X Surrender license or privilege to renew X Suspension X Stayed suspension - immediate X Continue on terms X Mental or physical evaluation X Monetary Penalty X No sanction X Probation X ReprimandX TERMS: Competency - continuing education X Competency - audit of practice X Competency - special examine (SPEX) X Prescribing - log X Practice probation/fulfill criminal probation X Impairment - evaluation X Impairment - HPIP X Practice restriction - chart/record review X Practice restriction - oversight by monitor X Practice restriction - specific X Prescribing - restrictions X Sexual misconduct - chaperone X Sexual misconduct - evaluation X Sexual misconduct - supervised practice X Sexual misconduct - therapy X Sanctioning Study Virginia Department of Health Professions

16. Loss of License – Significant factors (suspension, revocation, surrender) Direction of influence ( + ) more ( - ) less Degree of Influence Patient death + High Impaired/Obtain by Fraud + High Consent order signed + High Standards of Care + High Past mental health/capacity problems + High Past sexual boundaries/deviance problems + Med Past difficulties with drugs/alcohol + Med One or more prior board orders/decisions + Med Attorney present - Med Respondent impaired during incident + Med Respondent receiving treatment - Low Respondent female + Low Past treatment -- alcohol related - Low Years practicing + Low Days in Board Stage - Low Sanctioning Study Virginia Department of Health Professions

17. BOM Committee • Provided input on factors that should continue to play a role in sanctioning • Case type - seriousness • Patient injury • Past substance abuse/mental illness • What other factors should be normatively added? • Multiple patients involved • Prior violations (not prior cases or orders) • Make factors as consistent as possible on worksheets Sanctioning Study Virginia Department of Health Professions

18. Creating Sanction Reference Points • Place historically important factors on 5 offense worksheets • Add other factors that should play a role • Score all persons in database on worksheets – determine where they would have fallen on grid Sanctioning Study Virginia Department of Health Professions

19. Wide Sanctioning Ranges • 70% accuracy on average across 5 worksheets • 30% of sanctions fall above or below recommendations • Intent is to model the most “typical” cases – not the most aggravated or mitigated types Sanctioning Study Virginia Department of Health Professions

20. SRP Steps: Determine if violation occurred no yes • Determine case type • Locate appropriate worksheet • Score offense and respondent factors • View the sanction grid result • Complete coversheet • May cite reason for departure, if applicable No worksheet completed Sanctioning Study Virginia Department of Health Professions

21. SRP Steps: • Determine case type • Locate appropriate worksheet • Score offense and respondent factors • View the sanction grid result • Complete coversheet • Cite reason for departure, if applicable Manual, page 9

22. SRP Steps: • Determine case type • Locate appropriate worksheet • Score offense and respondent factors • View the sanction grid result • Complete coversheet • Cite reason for departure, if applicable Caspian 010100000 Sanctioning Study Virginia Department of Health Professions Manual, page 15

23. SRP Steps: • Determine case type • Locate appropriate worksheet • Score offense and respondent factors • View the sanction grid result • Complete coversheet • Cite reason for departure, if applicable Manual, page 20

24. SRP Steps: • Determine case type • Locate appropriate worksheet • Score offense and respondent factors • View the sanction grid result • Complete coversheet • Cite reason for departure, if applicable Caspian 010100000 Sanctioning Study Virginia Department of Health Professions Manual, page 15

25. SRP Steps: • Determine case type • Locate appropriate worksheet • Score offense and respondent factors • View the sanction grid result • Complete coversheet • Cite reason for departure, if applicable Sanctioning Study Virginia Department of Health Professions Manual, page 12

26. Existing Sanctions Fit into 4 Sanction Groups Manual, page 11 Sanctioning Study Virginia Department of Health Professions

27. Prior History Scoring • Cases ending in a violation • Similar past violations – in same offense group • Score past cases regardless of age Sanctioning Study Virginia Department of Health Professions

28. Cases to Exclude • Mandatory Suspensions • Formal Hearings • Compliance/Reinstatement • Actions by Other Boards Sanctioning Study Virginia Department of Health Professions

29. Sample Case Sanctioning Study Virginia Department of Health Professions

30. Respondent: Rebecca Sparrow License Number: 010199999 Case Number: 22222 Case Type: Relationship Inappropriate Circumstances Surrounding Event Dr. Sparrow treated Patient A, a 35 year old man, for pain management. During the course of said treatment, Dr. Sparrow failed to maintain appropriate professional boundaries. The respondent, on several occasions, walked Patient A to his residence after pain management treatment. Patient A reported that Dr. Sparrow took him to dinner on no less than three separate occasions and that he accepted gifts totaling $200. On one occasion the patient took care of the respondent’s seven-year-old son, in the respondent’s home, while the respondent was away. Patient A reported having no sexual relationship with the respondent. Patient A did become emotionally and psychologically dependent on Dr. Sparrow requiring treatment from a psychologist, Dr. Hawthorne. Dr. Sparrow showed little insight into understanding the maintenance of professional boundaries. Respondent’s Background Information Dr. Sparrow has one prior Board violation for standard of care issues. Sample Case

31. Information Needed to Complete Worksheet Offense scoring Case does not involve sexual abuse (Circumstances) Patient is not a juvenile, elderly, or handicapped (Circumstances) Only one patient associated with the case (Circumstances) Mental Injury (Injury Level) Priority C (Priority Level) Respondent scoring No concurrent actions exist (Circumstances) No past problems are reported (Circumstances) One prior violation, not similar (Prior Violations) Sample Case Sanctioning Study Virginia Department of Health Professions

32. Worksheet Sample Case 50 30 80 60 60 Sparrow 010199999 Sanctioning Study Virginia Department of Health Professions

33. Coversheet Sample Case 2 2 2 2 2 Sparrow Rebecca MD 010199999 X Relationship Inappropriate X Sanctioning Study Virginia Department of Health Professions

34. A Comprehensive Study… = Project meeting/presentation 2002 2003 2001 Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Literature review & summation, report preparation Profile other state systems Building consensus Sanction Reference Points Adopted In-depth interviews Identify sample Compile databases Develop instrument Data analysis Data collection/coding Reference System developed

35. The Long Term… • Evaluate SRP system • What sanctions work? • Reduce recidivism, provide benefit vs. cost, etc? • What factors can predict success given various sanction types? Sanctioning Study Virginia Department of Health Professions

36. Elizabeth Carter, Ph.D., Executive Director Virginia Board Of Health Professions 6603 West Broad Street, 5th Floor Richmond, VA 23230 804.662.7691 Elizabeth.Carter@dhp.virginia.gov Neal Kauder, President VisualResearch, Inc. P.O. Box 1025 Midlothian, VA 23113 804.794.3144 nkauder@vis-res.com Speaker contact info