Hurwitz & Fine, P.C. Office of Graduate Medical Education Program Directors Presentation Grievances & Troubled Residents By: Janet J. Harszlak, Ph.D. GME

Hurwitz & Fine, P.C.

Office of Graduate Medical Office of Graduate Medical EducationEducation

Program Directors Program Directors Presentation Presentation

Grievances & Grievances & Troubled Troubled ResidentsResidents

By: Janet J. Harszlak, Ph.D.By: Janet J. Harszlak, Ph.D.

GME Grievance Administrative ConsultantGME Grievance Administrative Consultant

By: Lawrence M. RossBy: Lawrence M. RossHurwitz & Fine, P.C.Hurwitz & Fine, P.C.

(Attorney for University Medical Resident (Attorney for University Medical Resident Services, PC)Services, PC)

March 11, 2008March 11, 2008


March 11, 2008March 11, 2008

““PLEASE BE ADVISED THAT PLEASE BE ADVISED THAT

YOUR RESIDENT INTENDSYOUR RESIDENT INTENDS

TO FILE A GRIEVANCE WITH TO FILE A GRIEVANCE WITH RESPECTRESPECT

TO THE RECENT ACTIONTO THE RECENT ACTION

TAKEN BY YOU.”TAKEN BY YOU.”


What Should You Do?What Should You Do? Contact Office of Graduate Medical Contact Office of Graduate Medical

EducationEducation


What Is Our Role?What Is Our Role?


The Importance of Early The Importance of Early InterventionIntervention

Discuss grievance procedure Discuss grievance procedure policypolicy

Case reviewCase review** Evaluate strengths and Evaluate strengths and weaknesses of grievanceweaknesses of grievance** Prior meeting(s) with Prior meeting(s) with Resident? Resident? Level I discussionLevel I discussion

Document ReviewDocument Review* * Complete?Complete?** Supportive of sanction?Supportive of sanction?

Preparation for grievance Preparation for grievance hearinghearing

Consultation with legal Consultation with legal counselcounsel


Why isn’t the Professional Why isn’t the Professional Judgment of the Program Judgment of the Program Director Respected More Director Respected More Often by the Grievance Often by the Grievance

Committee?Committee? Insufficient notice of disciplinary actionInsufficient notice of disciplinary action Non-compliance with UB policiesNon-compliance with UB policies Non-compliance with “internal” Non-compliance with “internal”

(program) policies or criteria(program) policies or criteria Sanction is disproportionateSanction is disproportionate Documentation does not support sanctionDocumentation does not support sanction Inadequate or incomplete documentationInadequate or incomplete documentation


Recurrent Theme?Recurrent Theme?

Imprecise or ambiguous terms of Imprecise or ambiguous terms of probation or suspensionprobation or suspension


Recommendation for Recommendation for ChangeChange

Written noticeWritten notice Commencement dateCommencement date Stated period (extension)Stated period (extension) Well conceived remediation programWell conceived remediation program

** Specific objectives Specific objectives

** Recommended activitiesRecommended activities

** Counseling or interventionCounseling or intervention

** Performance measuresPerformance measures

** Periodic evaluationPeriodic evaluation Timely notice to supervising facultyTimely notice to supervising faculty Communicate consequences of failureCommunicate consequences of failure


Root Cause of Disciplinary Root Cause of Disciplinary Action?Action?

May predate event May predate event that precipitated the that precipitated the disciplinary action!disciplinary action!

Did you have prior Did you have prior notice of problem?notice of problem?

Warning signsWarning signs


Troubled ResidentsTroubled Residents Sample Sample

Definition – Definition – Residents with Residents with problems who do problems who do not progress not progress (respond well to (respond well to remediation or remediation or discipline) or discipline) or who engage in who engage in one or more acts one or more acts of misconductof misconduct


Troubled Residents Troubled Residents (con’t)(con’t)

Disproportionate Source of Disproportionate Source of Disciplinary ActionsDisciplinary Actions

Disproportionate Source for Disproportionate Source for LitigationLitigation


If we could go back in If we could go back in time, what could have time, what could have been done differently?been done differently?


Self Help MeasuresSelf Help Measures


ERAS Common Application ERAS Common Application FormForm


ERAS Common Application ERAS Common Application FormForm

Review for CompletenessReview for Completeness

Review for AccuracyReview for Accuracy

Includes Continuing RepresentationsIncludes Continuing Representations


CompletenessCompleteness


CompletenessCompleteness

Is all residency training program Is all residency training program experience disclosed?experience disclosed?

Any gaps in work or educational Any gaps in work or educational history?history?


AccuracyAccuracy


Accuracy - - Odd Accuracy - - Odd ExplanationsExplanations

““I missed the deadline for the 2007 I missed the deadline for the 2007 match. Therefore, I have to sit out a match. Therefore, I have to sit out a year while I apply now for the 2008 year while I apply now for the 2008 match!”match!”

““I resigned from this program due to I resigned from this program due to personal reasons and returned home personal reasons and returned home to care for an infirm parent.”to care for an infirm parent.”

““I became unhappy with the program I became unhappy with the program and withdrew in June, 2007.”and withdrew in June, 2007.”


ERAS Application ERAS Application Representations are Representations are

CONTINUING CONTINUING RepresentationsRepresentations

Must disclose material changes in Must disclose material changes in representationsrepresentations

Must disclose subsequent eventsMust disclose subsequent events


Recommendation: Contact Recommendation: Contact ReferencesReferences


Recommendation: Explore Recommendation: Explore Red FlagsRed Flags

““Our policy limits me Our policy limits me to confirm dates of to confirm dates of residency and residency and education credit.”education credit.”

““I am prohibited from I am prohibited from talking about any talking about any corrective action corrective action taken with regard to taken with regard to this resident.”this resident.”

““The matter is The matter is currently in currently in litigation.”litigation.”


Recommendation: Conduct Recommendation: Conduct a Personal Interviewa Personal Interview

Observe personal Observe personal demeanordemeanor

Confirm language Confirm language skillsskills

Determine VISA Determine VISA statusstatus

If telephone If telephone interview, confirm interview, confirm identityidentity


Recommendation: Do not Recommendation: Do not execute and deliver Residency execute and deliver Residency Employment Agreement prior to Employment Agreement prior to receipt and review of applicationreceipt and review of application


Recommendation: Require Recommendation: Require acceptance within 30 days of acceptance within 30 days of offer. Be wary of delaysoffer. Be wary of delays


Does Everyone Deserves a Does Everyone Deserves a Second ChanceSecond Chance

Question:Question:

When does duty to When does duty to society and society and profession outweigh profession outweigh natural empathy for natural empathy for Resident’s chosen Resident’s chosen career path?career path?


Troubled Residents: Rush Troubled Residents: Rush to Judgmentto Judgment

Bypass Remediation for ProbationBypass Remediation for Probation


Factors?Factors?

Various incidents over time (crescendo)Various incidents over time (crescendo) Declining resident moraleDeclining resident morale Increasing faculty dissatisfactionIncreasing faculty dissatisfaction Third party complaintsThird party complaints


Troubled Residents: Troubled Residents: Assessment and EvaluationAssessment and Evaluation

Unwanted Delay in Taking ActionUnwanted Delay in Taking Action


FactorsFactors

Inexperienced faculty supervisionInexperienced faculty supervision Difficult ResidentDifficult Resident Avoid institutional processes (grievance Avoid institutional processes (grievance

hearing)hearing) Poor Internal Controls: Unaware of failure Poor Internal Controls: Unaware of failure

to progressto progress Preference to Handle InformallyPreference to Handle Informally Ignore Warning SignsIgnore Warning Signs


Consequences of Consequences of Unwarranted DelayUnwarranted Delay


Consequences of Unwarranted Consequences of Unwarranted DelayDelay

Non compliance with duty to assess and Non compliance with duty to assess and evaluate skillsevaluate skills

Avoids responsibility to remediateAvoids responsibility to remediate Provokes resident’s ireProvokes resident’s ire Impact on programImpact on program On program director (frustration)On program director (frustration) On residents (morale)On residents (morale) On patients (quality of care; risk of harm)On patients (quality of care; risk of harm)


Troubled Residents: Rush to Troubled Residents: Rush to JudgmentJudgment

Inadequate or No DocumentationInadequate or No Documentation


Troubled Residents: Rush to Troubled Residents: Rush to Judgment (con’t)Judgment (con’t)

Documentation does not support identified Documentation does not support identified deficienciesdeficiencies

** Inconsistent Inconsistent evaluationsevaluations

* * Action may raise Action may raise questions about questions about program integrityprogram integrity

* * Unlawful Unlawful discriminationdiscrimination

** Concerns about Concerns about ACGME complaintACGME complaint


Troubled Residents: Rush to Troubled Residents: Rush to Judgment (con’t)Judgment (con’t)

Disproportionate PenaltyDisproportionate Penalty

** Materiality Materiality

* * Frequency of Frequency of problemproblem

* * Close in time to Close in time to incident?incident?

** Notice? Notice?


Troubled Residents: Rush to Troubled Residents: Rush to JudgmentJudgment

Compliance with PoliciesCompliance with Policies


Troubled Residents: Compliance with Troubled Residents: Compliance with Policies (con’t)Policies (con’t)

The importance of complianceThe importance of compliance

** Due process (Grievance Procedures) Due process (Grievance Procedures)

NoticeNotice

Opportunity to be heardOpportunity to be heard


Troubled Residents: Compliance with Troubled Residents: Compliance with PoliciesPolicies

The importance of compliance (con’t).The importance of compliance (con’t).

** ACGME standards for accreditationACGME standards for accreditation Professional judgment respectedProfessional judgment respected Departure from accepted academic Departure from accepted academic

norms.norms.** Key Policies Key Policies EvaluationEvaluation PromotionPromotion HarassmentHarassment Non-renewalNon-renewal TerminationTermination


Troubled Residents: Compliance with Troubled Residents: Compliance with Policies (con’t)Policies (con’t)

Balance between academic or educational Balance between academic or educational goals and employment law principlesgoals and employment law principles


““The End”The End”

Documents

Hurwitz & Fine, P.C. Office of Graduate Medical Education Program Directors Presentation Grievances & Troubled Residents By: Janet J. Harszlak, Ph.D. GME