Tips For Effective Monitoring and What To Do When Crises Arise

Intro: Hello, and welcome to Integrity Through Compliance: AMI’s Business Success Series. This podcast was created by seasoned compliance experts at Affiliated Monitors to speak practically to your business needs. During this series you will hear from AMI’s experts who will provide their observations on industry trends, geared to raise your awareness and to protect your brand. So grab a cup of coffee and join us as we guide you and your business to integrity through compliance. Jim Anliot Hello everyone. My name is Jim Anliot and I am Director of Health Care Compliance Services for Affiliated Monitors. With me today are two of my colleagues, Deann Conroy and Denise Moran, who are two of our Compliance Solutions Managers. All three of us have had considerable experience developing and implementing strategies for overseeing troubled healthcare providers in ways which both promote performance improvement for those providers, and protection of the public interest for state and federal regulatory agencies. Today, we're going to offer some tips on creating effective oversight programs and responding appropriately when problems with those oversight programs crop up. But first, let me take a moment to ask Deann and Denise to introduce themselves. Deann? Deann Conroy Hello everyone. My name is Deann Conroy and I'm an attorney by trade, and have specialized in healthcare for about the last 12 years. I have served as the director for several healthcare boards, which is the government side of things, and then have also worked in private practice representing healthcare practitioners in licensing matters. And in medical malpractice cases, I've been working in Affiliated Monitors (AMI) for over five years now. Denise Moran Well, I started my career working with insurance subrogation before transitioning into corporate law, where I worked in risk management. And then during my tenure with the state, I was fortunate to work in all three capacities with the licensure boards first as legal counsel for various boards. Then I experienced the program side as an executive director, and finally, I served as the director of statewide investigations and disciplinary coordinations for all of the boards. I've been with AMI for the last six years now. Jim Anliot I know that when I was a board attorney at the Massachusetts Division of Professional Licensure, our biggest problem with settlement agreements was the lack of internal resources needed to monitor licensed compliance with them. Both of you have obviously had a lot of experience with investigating and resolving professional discipline cases at the state level. When you were working with your respective state agencies, what were the biggest challenges you faced in developing settlement agreements in those cases where you either didn't have enough evidence to justify a loss of license, or a loss of license was not appropriate. Deann Conroy Well in the healthcare boards that I directed, the loss of license was only used when the complaint, when the complaint was so egregious, or the board members felt that no matter how much education or retraining we give a licensee, we would ever get a positive outcome. So everything else was handled with the settlement agreement between the board and the practitioner. So almost everything we did in discipline was handled with the settlement agreement. The boards had resources to investigate the complaints from patients. We have the resources to draft an appropriate settlement agreement, but then there were basically no resources to follow through to ensure the practitioner was actually following the board's order. We needed an outside independent source that could follow through appropriately, but with no additional cost to the board. Denise Moran Now on my side, the biggest challenge as a board attorney and later as the probationary director was concerned over the capacity of the department to adequately monitor the probationary requirements, which were related directly to the clinical practice and the patient care. We also wanted to have meaningful change occur in the practice of the clinician to resolve the issues, which brought the clinician before the board in the first place. But often we found that the state resources were limited and resolving those issues was very much beyond our reach. Jim Anliot Our experience has been that this is a common problem in many state and federal regulatory agencies, which is why Affiliated Monitors was created. In your experience, what are some of the most important factors to consider in developing an effective monitoring process? Deann Conroy Well, first the problems to be addressed need to be identified and then communicated as clearly and specifically as possible. This is sometimes difficult because of a practitioner's unwillingness to acknowledge his or her problems. You know, one has to admit there is a problem before it can be addressed effectively. So everyone must have a clear sense of, what would a positive outcome for both the board and practitioner look like? What improvements does the practitioner need to make? How will progress or lack thereof be measured? Denise Moran Boards should remember to allow enough time in the probationary period for the monitoring to be effective. Progress is routinely documented. For instance, when we are doing the monitoring, progress is documented in our monitoring reports and the progress made serves as a measurement tool for the effectiveness of the monitoring program. For example, when boards discover that numerous issues need to be addressed, a probationary period of, say, from one to two years is generally needed to achieve maximum outcome. Adequate time ensures that improvements have not only been implemented for the benefit of a monitor, but that those improvements have been incorporated by the practitioner into both the culture and the cadence of their everyday practice. Jim Anliot Have either of you experienced any problems with the lack of clarity in settlement agreements about what issues the monitor is expected to address? If so, can you enlighten us as to how you've addressed those problems and what suggestions you would have for our listeners about how to avoid it? Deann Conroy Well, the more clarity that can be placed in the settlement agreements, the better. So clear definition of problems to be addressed is more likely to produce positive results, right? So the settlement agreement is the written document that can be read and re-read by the board members and its attorneys, by the practitioner, and by the monitor. So it's a source we can go back to again and again. The more specific an agreement can be towards that particular practitioner's problems, the more focused the monitor can be in addressing the board's concerns. Denise Moran Well, one of the most effective methods I used was the implementation of board member training. The training we did, or we conducted was offered periodically to new board members and as a refresher course to seated members. A key component, and actually a very popular segment was called crafting a board order. When I conducted the training, I utilized a mock charging document to engage the board in a learning event. This allowed the members to discover their available options for probation and determine which options were appropriate to correct the underlying issues. Then I would present previous orders as tools to review, to guide them in recognizing the various pitfalls to avoid. It was — it turned out to be one of the most creative segments that we did for board member training. Jim Anliot That's a really great idea. I would add to that though. I think it's really helpful to identify your case goals. As Deann mentioned, it's important to define what constitutes a successful outcome. And it's also important to know what the real problems are in the practice. Sometimes a case presents itself in a way that what looks like the original problem, isn't the real one. So you identify those as well. But if you have a clear sense of what your objectives are, it's going to be easier to determine what corrective actions are needed, and what forms of monitoring will be required to measure progress towards those goals that helps to lend clarity to the settlement agreement and the whole monitoring process itself. I wonder if each of you might comment now on what you think are the most important criteria to use in choosing a monitor? Deann Conroy Um, okay. We look for a healthcare monitor that has the appropriate credentials and is in the same or similar type of healthcare practice as the practitioner. I look for someone who is not in direct competition for patients with the practitioner, but more than that, we look for a good listener and teacher to be monitors. The person will really need to listen and understand the problems that the practitioner has been having, and then has to be able to teach the proper ways to handle those problems so that the practitioner is in compliance with the rules and regulations of the state board. A good teacher-student type of relationship can go a long way to reach those goals. Denise Moran I agree with Deann. We have confidence in the AMI network of clinical monitors we have assembled. It is important to us to identify and utilize clinicians who can communicate best practices. In addition, the clinicians we use are usually certified in some capacity beyond licensure. For example, when I am working with or identifying physicians, I attempt to utilize practitioners who are certified by the American Board of Medical Specialties, or ABMS, and who are also participating in their maintenance of certification learning. Jim Anliot Certainly important to make sure that the proposed monitor has the right skillset. It's also important to make sure that the monitor has no actual, or potential, conflicts of interest. Independence and objectivity are important. This leads us to an important question: how deeply should the board or the regulatory agency be involved in the selection of the monitor? What role should the board or agency play in determining who the monitor is? Deann Conroy Well, rather than have a practitioner offer up one of his friends to be the monitor, the board should really look for an independent company like AMI. We're kind of the gatekeeper between the monitor, the practitioner, and the board. Often AMI submits a resume of the proposed monitor to the board and asks for confirmation that the board will accept that monitor for that particular practitioner. Going through a company allows the board to free up its time from checking on each individual put forth as a potential monitor directly by the practitioner. Denise Moran In the end, the follow-up submitting the name to the board also allows AMI to understand if there are any issues in what we call the “back of the house”; issues that AMI would not otherwise be able to discover. For instance, is there a pending complaint against the monitor? Does the board utilize the potential monitor for in-house consultation purposes, to which we would have no idea — that would not have been revealed to us. These are issues that AMI would want to know about. Jim Anliot And we have actually made use of a conflict of interest questionnaire, which we submit to our prospective monitors, so that we can identify those problems. But Denise is correct. You know, you need to check with the board and make sure that the board is comfortable with the selection we've made. Now, in some cases, both the regulatory agency and the licensee may have expectations about the role of the monitor in evaluating the licensee, his compliance with the settlement agreement, and what the monitor should do. What should the role of the monitor be, based on your experience? How should the parties to the settlement agreement address those expectations? What steps can be taken to protect the independence and objectivity of the monitor? Deann Conroy The monitor must be neutral and objective, or there really is not any point in having a monitoring system. The monitor's task is to gather and report facts about the practitioner's performance. A monitor may offer opinions about practitioner’s performance, but those opinions must be based on an interpretation of established facts, not conjectures or suppositions Denise Moran And objectivity and independence are crucial. Our monitors are required to participate in a training program, which includes a discussion of maintaining objectivity and independence. And I think I would also add, a discussion of bias case managers also monitor the process to ensure that independence and objectivity are held in trust. Although it does not occur often, we will step in if there are signs that objectivity or independence is either in question or has been lost. Jim Anliot In our experience, monitoring works best when the monitor's impartiality is protected and preserved. The monitor should not be either an extension of the investigative arm of the regulatory agency, or an expert witness, if you will, for the defense. Returning to our earlier point about clarity and settlement agreements, have you encountered any problems with the scope or content of the monitoring process required by the regulatory agency, in terms of scope of the evaluation number, or extent of records to be reviewed, frequency of monitoring visits, and so forth? And do you have any suggestions about how those issues might be resolved? Deann Conroy Again, I would say clarity is the key here. The board should decide how it wants the monitoring for this particular practitioner to look; focusing on the problems, and not including other parts of the practices that are not under scrutiny. If you just focus on the problems, you're best serving everyone involved. Does the board consider 10 patient records to be reviewed enough to make sure that the practitioner is following the proper procedures and documentation? Or is this a doctor who has lots and lots of patients and would then 20 records give the board a better idea of how the changes are or are not being implemented? Denise Moran Well for my experience, fluidity in monitoring allows AMI to develop a monitoring plan unique to the issues discovered by the board, and enables the plan to adjust to the individual practitioners as the monitoring progresses. For example, what is found in 10 patient charts will traditionally be repetitive in 20 charts. We focus on the details and the underlying issues, and then we work with the clinical monitors to make improvements in small increments, which can then be applied across all areas of patient care. Jim Anliot For cases in which the monitoring process involves review of patient treatment or service records, both of you have suggested that the sample size of 10 to 20 records is generally sufficient. What suggestions do you have about how often such reviews should occur, and how the record samples should be selected? Deann Conroy For example, if monitoring will require reviews of patient records, being reasonable about the sample size — like we were talking about 10 to 20 records that are randomly chosen by AMI. The doctor has no place in choosing which records are reviewed. so we randomly choose them. 10 to 20 records per review is usually enough to provide a reliable assessment of client performance. And we suggest quarterly reporting is the right amount for frequency. That's four times a year. It provides the practitioner with a reasonable opportunity to make improvements between the reports. Denise Moran I agree with Deann here. I would add that the more issues identified for correction, the more time will be needed to allow the practitioner to demonstrate improved documented patient care. For example, we all should encourage practitioners to meet with staff, create or amend current policies, and put protocols into place. If we identify gaps in learning, we also assist the practitioner in identifying learning activities or continuing education to remedy those gaps. It takes time to see those results. Jim Anliot Denise, earlier you suggested that it was important to leave enough time between one review and the next to afford the sanctioned licensee a fair opportunity to implement any changes the moderator might recommend. Our experience suggests that quarterly evaluations are often optimal in ensuring sufficient oversight, but providing a reasonable opportunity to make improvements. What extent should the cost of the monitoring process be considered in determining the scope of the monitoring process required? Deann Conroy Well, let's remember the goal of monitoring is to get the practitioner that has problems back to where he or she needs to be, so that they can provide quality medical care to the patients, right? So the cost of monitoring should not be used as a punitive means by the board against the practitioner. For instance, saying we're going to put him on probation with a monitor for 10 years because we're mad at how he screwed up, that's not appropriate and it's not the goal. So boards need to require that proper amount of monitoring that will address the problems that were brought up in the complaint. Denise Moran Well, given that we know that small chart samples and quality reviews allow for satisfactory improvements, smaller samples and quarterly reviews, also lower the cost and allow the practitioner to utilize resources in other ways, to implement the monitoring plan. As an example, savings in monetary and time resources can be channeled toward in-person learning events, obtaining point of care tools, and making other changes — changes that will ensure that the practitioner is able to not only maintain the level of improvement we see during the monitoring process, but after the monitoring has concluded. Jim Anliot I think it's important to keep in mind that the basic reason for using monitoring is to assess the sanctioned practitioner's performance over time, and promote improvement in their performance. Monitoring is not intended to be a punitive measure. It should not be used as such. What are the reporting obligations of the monitor? Should the monitor make recommendations about how the licensee can improve his or her practice? And if so, how should that be done, and are there limits on the monitor's role in recommending changes? Deann Conroy Well, our monitors speak with the practitioners every quarter about what they're seeing in the records, what improvements have been made, and what problems still exist. The monitor's role is not to make the practitioner run his medical practice the same way that the monitor does, but rather that the practitioner is practicing in a safe manner and is providing proper medical care to his or her patients while following the board's rules and regulations for the profession. Denise Moran And I agree with Deann. It's not so much in the limitations, but in what will work on a continuous basis once the monitoring is completed. Jim Anliot What are the rights of the licensee regarding the monitoring reports? Does the licensee have the right to challenge the monitor's findings? I've had cases myself involving federal and state health insurance program integrity agreements where the sanctioned practitioner has insisted on a right to review and challenge the monitor's findings. Should this be allowed? And if so, how should such disputes be handled and resolved? How do we best protect the monitor's ability to speak freely and candidly about what they find, and have you experienced these problems? And if so, how have you addressed them? Deann Conroy I would say that the rights of the licensee regarding the monitoring reports really needs to be set by the board in the settlement order. In there you can write, is there an appeal system set up that the board can hear each side or does the board go by the monitor's report? And there is no right to challenge — the different boards handle this in different ways. AMI has its own process for handling a challenge, but I think it is even more clear when, from the get-go, the board has told everyone how they will consider such a challenge by putting that information in the settlement order. Denise Moran Well, I’ve found that ongoing communication is key. Our findings address expectations for minimum standards of care. If records are missed or non-included by the monitor in their assessment, we will consider the practitioner's feedback. And where we have made a mistake, we will correct those mistakes. However, the monitor is charged to speak honestly and openly, as we want the practitioner to know and understand where substandard care was found, and what corrections need to be made. Jim Anliot This leads us to the second major topic we wanted to discuss today. What kinds of problems commonly arise in the course of the monitoring process, and how should the various parties to that process respond? The most obvious potential problem is failure of the licensee to comply with the terms of the settlement agreement. What's the obligation of the monitor If he or she discovers a failure to comply? When should such compliance be reported? And does this depend on the scope and severity of the alleged violation of the agreement? How much should the monitor say? Deann Conroy The monitor has an obligation to report client misconduct to regulatory agencies, and has to do so immediately if the circumstances are that the client engages in criminal behavior that violates the law, or engages in conduct which poses an immediate danger to a patient or an employee's health or safety. Let me give you some examples of where this might come into play. Okay. The first one would be the practitioner — whether it's done intentionally or as a result of serious negligence — harms a patient or employee, or subjects a patient or employee to an unreasonable risk of harm. That would be an example of when immediate contact needs to happen. Another one is, the practitioner is prescribing controlled substances in excessive dosages or quantities or both, which is putting a patient at risk. The monitoring agreement with the practitioner should clearly state that any conduct which violates the law, or which imposes an immediate danger to patient health or safety will be reported immediately to the board. Denise Moran Response, I think, does have to be immediate. The monitor at AMI is trained to contact the case manager for discussion, and together we formulate an approach for contacting the board with concern. The timing and immediacy, of course, will differ depending upon how drastic we determined that violation to be. Jim Anliot In some cases, the licensee may have failed to cooperate with the monitoring process. For example, the licensee might fail or refuse to provide records that have been requested, or even conceal information the monitor needs in order to make a judgment. How should these situations be addressed? Deann Conroy An effort should be made to determine why a client is objecting to the process. There may be issues with monitor behavior that needs to be considered. An unreasonable failure to cooperate, however, should be reported to the regulatory agency properly. The monitors should report the facts and let the regulatory agency be the one to decide what consequences should be imposed. Denise Moran In my experience, again, communication is key. A failure to comply with the monitoring plan will escalate to a joint conversation or meeting between the monitor, the practitioner, and the AMI case manager. If cooperation cannot be obtained, then a report to the board is often the only remaining course of action, unfortunately. Jim Anliot What are the rights of the licensee to respond to a report of alleged non-compliance? Should those issues be addressed in the settlement agreement? Deann Conroy Well, this is similar to our discussion about what if the licensee says the monitor's report is inaccurate. Well, some aspects of non-compliance may be subjective. Most can be shown by facts, uh, use different documents, such as, um, the date, the licensee was supposed to upload the documents to the monitor versus the date it actually happened that can show, um, alleged non-compliance. Another example would be to look at the types of documents that have been requested to be uploaded for review, versus the actual documentation sent by the licensee. Denise, what do you think? Denise Moran I think that settlement agreements often contain stipulations as to what will happen with your licensee for issues of non-compliance. And sometimes those issues of non-compliance can be egregious enough to warrant a disciplinary action by the board. Jim Anliot Occasionally there may be a personality conflict between the monitor and the licensee, which suggests that the monitor might not be a good fit for this particular case. In your experience, have you encountered this problem and how have you responded to it? Deann Conroy Well, this problem has not come up a lot at AMI because we perform such an intensive process with the potential monitor before we bring him or her on, that we have already decided that it would be a good fit. But sometimes something happens and a monitor is determined not to be a good fit, for whatever particular reason — some could be legitimate, others may not be legitimate — but it has to be addressed, and quickly, because it's slowing up the monitoring process that we want to lead to a positive outcome. Denise Moran Well, we have encountered personality conflicts on only rare occasions. We did have a case in which a conflict arose between the monitor and client when the client was unable or unwilling to put improvements into place in a timely manner. In this instance, the monitor was replaced, but then I intervened to participate in the process in a much more hands-on manner during the monitoring plan, to move the plan forward, and to ensure timely implementation of AMI’s recommendations. Jim Anliot The monitoring process, of course, also entails some costs. The monitor's time and expertise has a certain value. Should the monitor be compensated for their services? And if so, by who? Should the settlement agreement spell out who pays for the oversight? Deann Conroy Well, of course, we're going to have to appropriately compensate the monitor for their services. Their services are vital to this whole system of working, so absolutely they should be appropriately compensated. Certainly most boards do not have the extra room in their budgets to pay for this extra auditing and training of a practitioner gone awry. So, the practitioner is the one who has the issue, and so oftentimes, boards, in their settlement agreements, write out that the costs will be paid by the practitioner in that matter. Denise Moran I agree with you. The costs of monitoring are usually the responsibility of the disciplined practitioner. Jim Anliot So let's say that the settlement agreement says that the licensee is responsible for paying the cost of the monitoring process. Have you had any experience with licensees who failed to meet their payment obligations? And if so, what did you do about that was the failure to pay such costs treated by the regulatory agency as a violation of the settlement agreement. Deann Conroy Some protection can be assured upfront by charging a sufficient initial deposit and reserving some of that money for costs of the very last monitoring report. Be sure to examine the amount of time being spent by the monitor on the record reviews or other monitoring activities, are these amounts of billable time reasonable? Denise Moran Well, failure to pay costs of monitoring will result in a suspension of monitoring. And if not quickly resolved will result in AMI having to report the suspension to the board. Some boards have found this to be a violation of the board's order. Jim Anliot We've talked a little bit about what happens when the sanctioned licensee fails to meet their obligations in the monitoring process, but the monitor also has certain responsibilities in this process as well. In today's environment, monitors are often drawn from the licensee's own profession and often have practices of their own. Have you encountered any problems with monitors failing to perform the required services on time? And if so, how have you managed those problems? Deann Conroy Time — don't we all wish we had more of it? That's for sure. But you know what? We understand that things come up in life, and a monitor is a person and a healthcare provider. There may be unplanned time off to care for a sick mother, or planned time off for a much needed vacation, but the results for the delay should be discussed ahead of time. If at all possible, the delay may be due to the monitor having difficulty in reading the client records or a client's failure to submit the records on time for review. Communication between all parties is what can make this manageable, rather than a disaster. Denise Moran Recently, in some states, we found that the COVID-19 pandemic has impacted our monitor's ability to timely make their obligations. In these instances, we've updated the boards who have been, so far, understanding of the impact COVID-19 has had across all of healthcare. Jim Anliot I would agree with you both that communication amongst the parties, and particularly communication to the board, about the reasons for any delay is really important in this process. Sometimes the monitoring process goes well, and the relationship between the monitor and the licensee is a positive one. If the client being monitored wants to retain the monitor as a consultant after the monitoring process ends, how should that be handled? Has a monitor ever tried to develop an ongoing work relationship with the client being monitored after the monitoring process? And if so, what, if anything, did you do about this? Deann Conroy There's a practitioner whose matter I manage who was under a five-year probationary term with quarterly documentation reviews and onsite visits by the monitor. Now, when AMI first began its monitoring of this practitioner, he was breaking many rules and regulations and some effective public safety. There was a lot of work that the monitor did in that five-year period of time, and a lot of work that the practitioner did as well. But at the end (which was successful) of the five-year probation, the board gave the practitioner an uninhibited license. At that point, the practitioner approached me stating that he had learned so much and made such positive changes that his business was now thriving. He requested that AMI still monitor him, even though he was no longer under a board obligation to do so. He saw the value in what was offered. We started a new contract with them to continue our monitoring and report our findings back to the practitioner only. Denise Moran In my experience, I've had two monitors so impressed by the monitoring process and the results we were able to achieve that the monitors expressed interest in bringing our successful practitioners on board with their own teams and AMI. While this is discouraged for conflict of interest reasons, we do require that monitors wait a full year after the process is ended before contemplating any working relationship with the practitioners. Jim Anliot We have encountered some situations in which monitors have attempted to market their own services to practitioners they are overseeing. We view this practice as improper, and as Denise said, we believe that a one-year cooling off period between the end of the monitoring process and any engagement between the monitor and the sanctioned practitioner is appropriate. Thank you both for joining me today and sharing the benefits of your own experience with our listeners. We hope that today's presentation has provided all of you out there with some valuable guidance on how to use monitoring more effectively in connection with consent orders, settlement agreements, and disciplinary orders. Any final takeaways for our listeners? Deann Conroy Well, I would say, as in most things in life, clear communication is key. The settlement agreement is the rock upon which the rest of the monitoring process is built. It must be clear and tailored to the specific practitioner, and his or her problems. Everyone wants a good outcome. Denise Moran Well, in almost every case I have handled, monitoring has brought about significant and lasting improvements in decision-making, practice protocols, and documented patient care. The feedback I've received from practitioners who have successfully completed the program has been overwhelmingly positive. Many have expressed gratitude and a renewed sense of commitment to their practice and their profession. That type of feedback has been most meaningful to me as a member of the AMI team. Jim Anliot Thank you both very much. Goodbye. Outro Thank you for joining Affiliated Monitors’ podcast, Integrity Through Compliance: AMI’s Business Success Series. Today's segment is just a sample of the subject matter expertise captured by AMI’s compliance professionals. Go to our website at www.affiliatedmonitors.com to view the comprehensive list of industry and in-house talent AMI has available to enhance professional and business integrity programs and controls. Also, connect with us on LinkedIn to receive updates and trends in the areas of enforcement and compliance. If you have any questions about today's podcast or would like to learn more, please contact us at [email protected]. Our Affiliated Monitors podcast production team of Deloris Saad, our compliance associate, and Dan Barton, our editor and podcast music composer, look forward to you joining us again for our next installment of Integrity Through Compliance: AMI’s Business Success Series.