Examples of Remediation: When it Works and When it Doesn't Work
Originally published in Forum Magazine
Originally published in Volume 23, Number 1 of the Federation Forum Magazine.
Ethics remediation is a huge challenge. We know something was done wrong, but the ethical dimensions of the professional character reflected by that violation can be very subtle, very pervasive. It’s very hard to identify for a regulatory board.
It would be relatively simple to discuss the statutes that individuals have violated. What we need to examine, though, are the underpinning of ethical judgment within any of these cases.
Here’s an example:
A physical therapist had a patient for four visits. The first time the patient was evaluated by the physical therapist to establish the plan of care. In the facility where this physical therapist worked, patients were routinely scheduled in the gym for the subsequent two or three visits. There, assistive personnel would oversee the exercises.
Between the initial evaluation and the second visit, this particular patient’s legs went out from under him, and he fell. He appeared at the second visit with a walker, complaining of pain down his leg. The physical therapist assistant in the gym informed the physical therapist about some complaints of this pain and the patient was re-evaluated. Nonetheless, the assistant continued to treat the patient as originally planned. After the third visit, the patient’s daughter insisted that the therapist re-evaluate her father, which was done at the fourth visit, and the course of care was changed appropriately.
Subsequently, the patient brought a complaint to the board about the standard of care by the physical therapist. The substandard care was fairly obvious - he didn’t fulfill his obligations to the patient and had supervision issues. We found him in violation of a number of things and gave him a fairly stringent remediation over the course of probation. He had to do course work in supervision and delegation. He had to write some new policies for his company, had to study proper supervision and utilization, had to study laws and pass our jurisprudence exam.
During the course of this remediation, the therapist changed jobs. He was now working in a hospital setting, so we collected and reviewed his records. When I came to the third record, I found a progress report to a physician written by a physician therapist assistant and an assessment that was documented by the physical therapist assistant. Clearly, there was something missing in our remediation.
Although he read some things, took a course and wrote some policies, the pattern didn’t change. We brought him back before the board. It was determined that he needed to work with a professional mentor in a guided research project. He also was instructed to author a paper that would allow him to grapple with the professionalism portion of his job and the obligations he owed to his patient.
Over the course of about five months, he had this mentoring relationship with a physical therapist approved by the board. He wrote a very heartfelt paper. He thanked the board for changing his life, and said he had no idea of the depth of error he had made. He also said he would be happy to be a mentor for anyone in similar circumstances. He seemed like he got it – finally.
Remediation, then, is not a quick fix, but over time, it can be effective.
Here are a few other cases that have come before our Arizona board as well as other boards over the last eight years and an explanation of what actions have been taken.
An applicant fails to disclose a prior DUI on his application for licensure:
In Indiana, a PT committee does its own disciplinary action, although it is under the medical licensing board. Its remediation for a failure of disclosure is to put the person on probation and to mandate an ethical course as well as the reading of APTA’s code of ethics. As an aside, the committee is very reluctant to permit that the ethical courses be taken online. The fact that the person lied on the application for licensure is a clear sign that he doesn’t understand that he has to be forthright and truthful. The real issue here, then, isn’t the DUI, but the person’s professional judgment, which is really the underlying key to everything done as a physical therapist.
A physical therapist makes inappropriate sexual advances to a colleague after work hours:
If we look at the code of ethics, most of the language has to do with patient-related infraction, but there is a world out there of family members and colleagues who are within the victim range. Sometimes it is much harder for a board to deliberate and adopt a finding in these specific instances. It certainly is very complex.
In Kentucky, the individual is placed on a remediation plan that involves mentoring, close watch of the practice, and depending on the violation, limiting exposure to certain kinds of patients, male or female for a period of three to five years. The monitor may be a current or former board member who visits on a bi-monthly or quarterly basis and talks with the supervisor or facility administrator and co-workers. The monitor also may interview patients with mostly generic questions, but may include a question such as “When he was working on your shoulders, did he have you put on a gown and did he maintain your privacy at all times?”
In other states, a monitor meets with the therapist and supervises them periodically through a probationary period. If an initial psychological assessment recommended that they needed to continuing counseling, the board or committee approves the counselors. The individual can’t go to a buddy or a social worker at the hospital; they have to go to someone who has experience dealing with that type of behavior. One difficulty is finding courses to remediate sexual misconduct. In Maryland, the individuals are sent to a tutorial at the University of Maryland. The course is very specific, and it continues for about a year. During that time, the person is on probation. Repeat offenders have their license revoked.
In Florida, all investigations are from prosecuting attorneys that are assigned to the licensure board by the attorney general’s office. Practitioners with substance abuse and/or sexual boundary problems are often referred to the recovery network, a statewide network of professionals that service all 18 healthcare practice boards. Those professionals do the psychological substance abuse profile and then attend the board meeting with written evaluations and regular monitor reports.
A physical therapist working for a home health agency documents 45-minute visits although he spends a maximum of 20 minutes at each patient visit:
The overt solution on billing issues is to do some education in coding and billing. But the underlying obligation the person has for the patient is to make certain the care is necessary and appropriate and that there is no waste of the insurance dollar. That’s more subtle, and we see it more commonly.
Another underlying issue may be that the facility or the structure or the supervisors put pressure on their employees to produce a certain number of billable units in a day. Yes, the practitioner is ultimately responsible, but the supervisors also bear some of that burden.
A physical therapist documents visits that weren’t made and blames it on technology:
In Alabama, there is an individual who has the ability to electronically sign patients’ names, and he is allowed to sign for certain patients. The board received complaints from patients that the therapist was electronically signing for visits that weren’t made. The therapist said, “I didn’t do it. It was a technology problem, and the company gave me this thing that I don’t know how to use, and I just punched buttons and that’s how the visits occurred and it’s not my fault.” In other words, he simply pointed the blame to his company without ever acknowledging that perhaps he should have been responsible for learning the technology.
Ethics remediation is a deep-seated issue, and a weekend course isn’t the answer.