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«DHMH Maryland Department of Health and Mental Hygiene 201 W. Preston Street • Baltimore, Maryland 21201 Martin O’Malley, Governor – Anthony G. ...»

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STATE OF MARYLAND

DHMH

Maryland Department of Health and Mental Hygiene

201 W. Preston Street • Baltimore, Maryland 21201

Martin O’Malley, Governor – Anthony G. Brown, Lt. Governor – Joshua M. Sharfstein, M.D., Secretary

January 24, 2011

The Honorable Joan Carter Conway The Honorable Peter Hammen

Chair, Education, Health and Environmental Chair, Health and Government Affairs Committee Operations Committee 2 West Miller Senate Office Building 240 House Office Building Annapolis, MD 21401 Annapolis, MD 21401 RE: HB 114 and SB 291/Chapters 534 and 533, of the Acts of 2010

Dear Chairs Conway and Hammen:

Pursuant to HB 114 and SB 291/Chapters 534 and 533, of the Acts of 2010 the Department in consultation with the Health Occupation Boards submit this report, an analysis of state expungement practices and recommendations concerning whether under certain circumstances it may be appropriate to expunge disciplinary proceedings from a licensee’s file after a specified period of time.

We hope this report is useful and if you have any questions please contact Ms. Wynee Hawk, Director of the Office of Governmental Affairs, at 410-767-6481.

Sincerely, Joshua M. Sharfstein, M.D.

Secretary Health Occupation Boards Enclosure cc: Wendy Kronmiller Paula Hollinger Health Occupation Boards Wynee Hawk Sarah Albert, MSAR #8292 Toll Free 1-877-4MD-DHMH – TTY/Maryland Relay Service 1-800-735-2258 Web Site: www.dhmh.state.md.us Expunging Disciplinary Proceedings from a Licensee’s File after a Specified Period of Time Report to the Senate Education, Health, and Environmental Affairs Committee and the House Health and Government Operations Committee January 24, 2011 Executive Summary The Department of Health and Mental Hygiene (“DHMH”) in collaboration with the State’s Health Occupations Boards (“Boards”), which are authorized to issue licenses, certificates, and to register certain practitioners, studied if, under certain circumstances, it may be appropriate to expunge disciplinary proceedings from a licensee’s file after a specified period of time. 1 DHMH and the Boards surveyed other states to determine the national trend in this area.

They also solicited comments from and considered comments submitted by numerous stakeholders.

DHMH and the Boards concluded that there is no evidence to support expungement, to the extent that it would change the current scope of retaining disciplinary records and making them available to the public. In reaching this conclusion, DHMH and the Boards weighed the comments received both in support of and against expungement of records, and reviewed and considered the Boards’ paramount obligation to protect the health and safety of people. DHMH and the Boards also considered that: the Boards currently do not post or make public preliminary or advisory findings that may be publicly available in other states; charging documents determined subsequently by a Board to be unsupported are not posted to the Boards’ websites;

and records that are posted on each Board’s website include only final public orders. Moreover, the Boards take their mandate to protect the public very seriously and do not believe that this mission can be adequately accomplished by expunging disciplinary proceedings from the records of practitioners.

Nevertheless, DHMH and the boards had discussions concerning review of this process in the future. We do acknowledge the capacity of any professional to change his or her practices over time. This is clearly a goal of a professional Board when a decision is made to permit the health professional to retain his or her license to practice. Practices used by the Boards to assure fairness and equity in the disciplinary process will strike the balance of fairness to the professional and continuing to protect the public.

Charge

HB 114 of the 2010 Legislative Session directed DHMH and the Boards to collaboratively study if under certain circumstances it may be appropriate to expunge disciplinary proceedings from a licensee’s file after a specified period of time. DHMH and the Boards were finally charged with reporting to the Senate Education, Health and Environmental Affairs Committee and the House Health and Government Operations Committee by December 31, 2010.

DHMH staff were advised that a few states are considering enacting legislation that would authorize licensing boards such as the health occupations boards to make a previously publicly available disciplinary action non-disclosable to the public under certain circumstances.

In these cases, a public board order would become confidential if the practitioner completes certain stipulations or after a certain period of time.

                                                            

 A complete list of Maryland Health Occupations Boards may be found in Appendix 1 

–  –  –

DHMH and the Boards, which are authorized to issue licenses, certificates, and to register certain practitioners, undertook a review of how other states address the issue of expungement.

To ensure that DHMH and the Boards understood the full scope of options available, the term “expungement” was defined as applying to different measures, which may be based upon the nature of the regulatory action, severity of conduct, whether an action is removed altogether, or whether it is public.





A workgroup of representatives of four of the Boards met throughout the summer and fall of 2010, including on July 20, 2010, and September 2, 2010. All the Boards sought input from their counterparts in other states, reviewed their responses, and compiled information about the current thinking on expungement.

On October 22, 2010, DHMH also sent a letter to the individuals and organizations listed in Appendix 2 seeking their opinion to understand the scope and breadth of views and opinions on this important matter. The letter sought feedback on any aspect of expungement, including the experience in other states or agencies and any evidence with which to evaluate the impact of expungement upon safety and quality of care.

Study Results

DHMH and the Boards reviewed the information, statutes, and regulations, and solicited input from health occupation boards across the country. The vast majority of Boards across the nation do not expunge records. However, there are a few exceptions under limited circumstances as outlined in Appendices 3 and 5 that permit expungement for minor infractions, such as continuing education violations in the case of Kentucky’s physician board. These types of minor infractions in Maryland do not appear as pulic orders.

See Appendix 3 for a chart of practices of physician licensing boards and Appendix 4 for a chart of practices of nursing licensing boards.

Considerations Factors DHMH and the Boards considered for maintaining the current system of not

expunging records included:

(1) The Boards’ obligation to protect the public health and safety. It is DHMH’s and the Boards’ mandate to protect the health and safety of Marylanders. The Boards are statutorily responsible for taking action against licensed health care providers for misconduct and making public orders about those disciplinary actions available to the public. This enables the public to obtain the most accurate information about a licensee’s qualifications in deciding to obtain health care from that individual.

(2) Neither the National Practitioner Data Bank nor the Healthcare Integrity and Protection Data Bank expunge disciplinary information. Where mandated, licensing board sanctions must be reported to the National Practitioner Data Bank (“NPDB”) and the Healthcare 2    Integrity and Protection Data Bank (“HIPDB”). Even if Maryland, or another state, would permit or require a licensing board to expunge a disciplinary action from its own records, these laws cannot require the NPDB and HIPDB to remove a report of the action from their Data Banks. Federal Data Bank policy permits a reporter to retract a report only in certain circumstances. Therefore, so long as an adverse action was accurately reported to the NPDB and the HIPDB, met the reporting criteria of the NPDB and HIPDB at the time it was submitted, and was not subsequently overturned by the board or a court, that report would remain in the data banks. Therefore, it is not entirely clear if there would be a benefit to a health care practitioner to expunge their state record of an adverse action, as hospitals, other states, and other employers, would still have access to the federal data banks. However, the consumer has no access to the federal data banks and would not be privy to this information.

(3) Complaints are not public. Complaints filed against a licensee are not public documents. Accordingly, there would be no need to expunge them.

(4) All charging documents, with the exception of those issued by the Board of Physicians (MBP), are not public. The Board of Physicians charging documents are not posted on the physician’s profile online, but documents are available upon request. If the MBP ultimately dismisses the charges after finding them unwarranted, all records relating to the charge are automatically removed after 3 years pursuant to §14-406(b) of the Health Occupations Article, Annotated Code of Maryland. The MBP also permits a physician to request an earlier expungement. None of the other Boards disclose charging documents to the public. However, DHMH believes that perhaps consideration should be given to immediate expungement of MBP charging documents if charges are not sustained by the board versus a physician having to request an earlier expungement.

(5) Advisory letters, letters of education, letters of concern, or letters of admonishment are not public. Most state health occupation boards issue “letters of concern” to practitioners when concerns are raised about the provider. In Maryland, these are called “advisory letters”, and, with the exception of the Board of Nursing, are not public documents and are not considered formal disciplinary matters. Accordingly, there would be no need to expunge them.

(6) Hospital and other employer reliance on information. Hospitals and other employers rely on the Boards to inform them of problems with a licensee that occur outside the walls of the hospital or their premises. Employment, privileges, and other hiring decisions could be undermined if the licensee’s file was expunged as the hospital, or other employer, could make decisions about a licensee’s competency or professionalism without the full knowledge of the licensee’s history.

(7) Challenges to answering questions about past sanctions or disciplinary actions. As the vast majority of states do not permit expungement, it is unclear how an expunged record would be treated in those states. A health professional who applies for a license in another state would likely be asked in filling out a form “Are you now or have you ever been subject to an action by a health occupations board?” If another state does not permit expungement of records, it is not clear how the practitioner could answer that question.

3    (8) There are single standard of care violation programs available. Subtitle 1-605 of the Health Occupations Article permits a Health Occupations Board to establish a program for licensees or certificate holders who commit a single standard of care violation as an alternative to a formal hearing. The program must provide training, mentoring, or other forms of remediation as determined by the Board.

Factors that DHMH considered that would indicate the need to change the current system

and permit some form of expungement included:

(1) Limitations on practice. Third party payors can use a sanction as a reason to drop a practitioner from its participation panel. When a Board sanctions or disciplines a health professional, such sanction or discipline could have an impact on the practitioner’s ability to participate in a third party payor’s panel or obtain adequate medical malpractice insurance.

(2) Sanctions in question are not representative of current practice. It is possible that a licensee may have had some initial difficulties early in their professional practice that warranted a sanction or other disciplinary action. However, those underlying problems may not represent the current practice of the licensee. Commenters suggested that it may not be appropriate or fair to forever stigmatize or tarnish a licensee’s record or reputation for actions that occurred a long time ago that do not reflect the licensee’s current practice.

Conclusion

DHMH and the Boards have a statutory obligation to protect the public’s health and safety. The public needs to be well informed of the disciplinary history of a practitioner in order to make well informed decisions regarding health care. Employers, such as hospitals, also need to be well informed before hiring or granting privileges. The vast majority of occupational health boards across the nation do not permit expungement. Therefore, there are no data to support Maryland permitting expungement of records.

DHMH further recognizes that health care professionals can make mistakes. Moreover, DHMH recognizes that HB 114 has introduced important measures to make more uniform and transparent actions of the various health occupations boards. To some degree, there will remain inherent differences due to the difference of the nature of each professional license and the consequent vast differences in the number and scope of disciplinary actions on the part of the different boards. DHMH believes that the Boards should agree to continue to extend the practice of not publishing charges that are not supported by the Board, and not publishing advisory letters when there is no charged violation of conduct.

Thank you to the people that took the time to respond to our requests for information and input. The evaluation and study of expungement has been a worthy task.

–  –  –



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