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Office of Graduate Medical Education

Program Directors Presentation

Grievances & Troubled ResidentsBy: Janet J. Harszlak, Ph.D.

GME Grievance Administrative Consultant

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

(Attorney for University Medical Resident Services, PC)

March 11, 2008

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March 11, 2008

“PLEASE BE ADVISED THAT YOUR RESIDENT INTENDS

TO FILE A GRIEVANCE WITH RESPECT

TO THE RECENT ACTIONTAKEN BY YOU.”

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What Should You Do? Contact Office of Graduate Medical

Education

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What Is Our Role?

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The Importance of Early Intervention

Discuss grievance procedure policy

Case review* Evaluate strengths and

weaknesses of grievance* Prior meeting(s) with Resident? Level I discussion

Document Review* Complete?* Supportive of sanction?

Preparation for grievance hearing

Consultation with legal counsel

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

Committee? Insufficient notice of disciplinary

action Non-compliance with UB policies Non-compliance with “internal”

(program) policies or criteria Sanction is disproportionate Documentation does not support

sanction Inadequate or incomplete

documentation

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Recurrent Theme?

Imprecise or ambiguous terms of probation or suspension

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Recommendation for Change

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

* Specific objectives* Recommended activities* Counseling or intervention* Performance measures* Periodic evaluation

Timely notice to supervising faculty Communicate consequences of failure

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Root Cause of Disciplinary Action?

May predate event that precipitated the disciplinary action!

Did you have prior notice of problem?

Warning signs

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Troubled Residents

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

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Troubled Residents (con’t)

Disproportionate Source of Disciplinary Actions

Disproportionate Source for Litigation

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

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Self Help Measures

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ERAS Common Application Form

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ERAS Common Application Form

Review for Completeness

Review for Accuracy

Includes Continuing Representations

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Completeness

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Completeness

Is all residency training program experience disclosed?

Any gaps in work or educational history?

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Accuracy

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Accuracy - - Odd Explanations

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

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

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

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ERAS Application Representations are

CONTINUING Representations

Must disclose material changes in representations

Must disclose subsequent events

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Recommendation: Contact References

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Recommendation: Explore Red Flags

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

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

“The matter is currently in litigation.”

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Recommendation: Conduct a Personal Interview

Observe personal demeanor

Confirm language skills

Determine VISA status

If telephone interview, confirm identity

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

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

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Does Everyone Deserves a Second Chance

Question:

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

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Troubled Residents: Rush to Judgment

Bypass Remediation for Probation

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Factors?

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

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Troubled Residents: Assessment and Evaluation

Unwanted Delay in Taking Action

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Factors

Inexperienced faculty supervision Difficult Resident Avoid institutional processes (grievance

hearing) Poor Internal Controls: Unaware of

failure to progress Preference to Handle Informally Ignore Warning Signs

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Consequences of Unwarranted Delay

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Consequences of Unwarranted Delay

Non compliance with duty to assess and evaluate skills

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

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Troubled Residents: Rush to Judgment

Inadequate or No Documentation

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Troubled Residents: Rush to Judgment (con’t)

Documentation does not support identified deficiencies

* Inconsistent evaluations

* Action may raise questions about program integrity

* Unlawful discrimination

* Concerns about ACGME complaint

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Troubled Residents: Rush to Judgment (con’t)

Disproportionate Penalty

* Materiality

* Frequency of problem

* Close in time to incident?

* Notice?

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Troubled Residents: Rush to Judgment

Compliance with Policies

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Troubled Residents: Compliance with Policies (con’t)

The importance of compliance

* Due process (Grievance Procedures)

Notice Opportunity to be heard

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Troubled Residents: Compliance with Policies

The importance of compliance (con’t).

* ACGME standards for accreditation Professional judgment respected Departure from accepted

academic norms.* Key Policies

Evaluation Promotion Harassment Non-renewal Termination

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Troubled Residents: Compliance with Policies (con’t)

Balance between academic or educational goals and employment law principles

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“The End”