Harry Nelson

Juking the Stats: The Broken Enforcement Regime of Professional Licensing

Over Saturday night, I was talking to some doctor friends about the ineffective and broken regulatory enforcement system for health professionals. I related that as I read the recent Medical Board of California annual report, I couldn’t help but draw parallels with a recurring theme in the HBO series by David Simon, The Wire, which I used to watch religiously from 2002 to 2008. Although I loved The Wire for its characters, its ear for Baltimore street language, and its astute commentary on the simultaneously farcical and tragic war on drugs, what triggered the association was CompStats, a regular feature on the show covering crime statistics, which were then manipulated for political purposes.

CompStats is a management tool that tracks crime patterns, among other things, in geographic grids. The show portrayed a system in which politicians pressured the police leadership for improved data on crime reduction and arrests, and pressure continued down the line so that officers on the front lines were encouraged to “juke” the stats. Juking the stats referred to a range of tricks to create the statistical appearance of reduced crime and improved safety to higher-ups, while things on the ground were the same as ever.

The specific reference to juking the stats came from Season 4 (the “Know Your Place” episode) when cop-turned-teacher Roland “Prezbo” Pryzblewski discusses a version of the same problem in school test scores with senior teacher Grace Sampson:

Prezbo: I don’t get it. All this so we score higher on the state tests? If we’re teaching the kids the test questions, what is it assessing in them?
Sampson:  Nothing. It assesses us. The test scores go up, they can say the schools are improving. The scores stay down, they can’t.
Prezbo: Juking the stats.
Sampson: Excuse me?
Prezbo: Making robberies into larcenies. Making rapes disappear. You juke the stats, and majors become colonels. I’ve been here before.
Sampson: Wherever you go, there you are.

To me, the depiction of CompStats making “robberies into larceny” and “rapes disappear” feels like a parallel universe to government licensing of healthcare professionals. In healthcare licensing, the goal is not to suppress the numbers to make the system seem safer, but rather to inflate the numbers to make it seem like regulatory enforcement is more effective. Substitute the Medical or Pharmacy Board of California, or other agencies that regulate healthcare professional licensing, for the Baltimore PD, and the story is the same. Licensing agencies, like the police brass on the Wire, respond to political pressure to produce “results” and demonstrate that they are doing their job, which is protecting the public. Meanwhile, meaningful results — the kind that actually move the needle on public safety — are difficult to demonstrate and even more difficult to quantify.  They are difficult to achieve because real safety problems are complex.

By contrast, it is radically easier to demonstrate the appearance of results by assessing the productivity of a licensing board. In the world of professional licensing, the licensing boards want to show they are cracking down. The recently released 2014-2015 Medical Board annual report shows how many cases were investigated, led to accusations, and to disciplinary results. The appearance of results is attained through stats: by the numbers of accusations filed against professionals, by the number of public reprimands issued, by the number of professionals placed on probation, ordered to take remedial education courses, suspended, and even revoked.

Each licensing board (one for each profession, including the Medical Board, Pharmacy Board, Dental Board, Physical Therapy Board, Psychology Board, Board of Registered Nursing, Board of Chiropractic Examiners, Board of Behavioral Sciences, and so on) prepares an annual report with the numbers of enforcement actions in the prior year to summarize its productivity. These compilations of success become the licensing board version of CompStats: the boards prove they are doing their job by the volume of output.

While juking the stats on The Wire was about creating the appearance of less crime, the game with the licensing board is to file more cases to create the appearance that effective work is being done. The big problem is that the mentality is only about the quantity of cases rather than the quality.  Rather than investing resources into pursuing professionals who are intentionally violating the law (committing fraud, deliberately cutting corners on patient care, or engaging in other serious misconduct), it is significantly easier to put up good statistics by going after inadvertent, highly technical violations.

In contrast to professionals who know that what they are doing is wrong and go out of their way to avoid detection, health professionals who unwittingly violate rules are sitting ducks. Most of the time they walk straight into violations by admitting to them in interviews and readily handing over documents, confident that they have done a good job but unaware of the technicality. Sometimes, their notes were a little brief or they failed to file fictitious name permits or some other document with the board. In other cases, they submitted the wrong form or accidentally signed a form that states facts incorrectly. In several cases, they actually called the board to ask a question, followed bad advice from someone at the board, and were disciplined as a result. (My favorite in this category was a county psychologist who, upon learning that her patient’s previous psychologist had had sex with the patient — a gross ethical violation — called the board to ask whether to report the other psychologist, was told to do so, and then was disciplined for not handing out a required pamphlet on boundaries and not obtaining patient consent.) The fact that the mistake was innocent doesn’t matter; professionals become easy marks and opportunities for the boards to make cases. In so many of the cases we see, the board takes advantage of a highly technical mistake as an opportunity to add a stat.

Ironically, over the past decade, the California boards have increasingly left the serious threats to the public to other law enforcement agencies. The Los Angeles County District Attorney, not the Medical Board, prosecuted doctors like Conrad Murray or Lisa Tseng after patients died. Over the past decade, the general trend has been increasing criminalization of physician misconduct, as local county prosecutors have taken a much more active role in pursuing criminal actions when doctors’ violations of standard of care or commission of fraud are sufficiently serious. Similarly, the California Department of Justice has taken on more systemic problems without substantial involvement from the boards, which are organized to pursue professionals one by one, and not to tackle deep structural problems.

Having had the most serious cases taken off their plates, boards are left with cases that are frequently miniscule, technical violations. Rather than warn a licensee about an inadvertent mistake (such as using an unregistered name or failing to file something), the licensing boards are increasingly likely to investigate and file an accusation against the licensee.

I could share dozens of examples. One that still haunts me was the case of Dr. Terry Merkin, of blessed memory, who gave me permission to share his story. Terry was a family practice doctor at Kaiser Permanente, who died prematurely in 2010 as the result of a brain tumor (glioblastoma).  When he disclosed his condition to a psychotherapist colleague, she told him he needed to stop working immediately and threatened to report him to the Medical Board if he didn’t. Terry told her that he was going to use what little time he had left to practice for as long as he was able. Miffed by his dismissal of her demand, the psychotherapist followed through on her threat (ironically, committing a troubling breach of the doctor-patient privilege in the process). The Medical Board, upon getting the psychiatrist’s complaint, overlooked her violation of Dr. Merkin’s right to privacy and immediately demanded that he submit to a mental examination to assess his competency to continue practicing. That was when I got involved.  Terry told me that being a doctor was one of the things he was most proud of. Even though he was winding down his affairs and would need to stop practicing for health reasons soon, he did not want to be bullied by his colleague or the Medical Board into doing so. Having never had a single patient complaint, he was not going to submit to an insulting and invasive mental examination.

When I conveyed to the Medical Board attorney (a deputy attorney general from the Department of Justice) that Dr. Merkin wasn’t going to submit to a mental exam, the prosecutor threatened to file charges. By this time, his condition had deteriorated and he authorized me to share with the prosecutor that he had actually stopped practicing on his own and was receiving palliative care at home for his last months of life. In a normal world, you would think that this would have been enough information to end the matter. Instead, I received a threatening letter from the attorney: unless Dr. Merkin agreed to surrender his license immediately, the board would be moving forward with filing charges against him. Terry even offered to take an inactive status as a compromise, but was adamant: he had lived as a doctor, was proud of being a doctor, and was going to die as a doctor. Several weeks later, Terry passed away. One week after his death, I received the filed accusation of formal charges of incompetence to practice, three days after his body was in the ground. The charges were not dismissed until I wrote a letter to the Medical Board executive director at the time, pointing out the ghoulishness of the board’s action. While the board withdrew its moot complaint, there was no apology to Dr. Merkin’s family, no recognition of the insensitivity, nothing — except a positive statistic: one more accusation filed.

How did this system happen? In what world does it make sense to bully a dying man to give up a medical license he isn’t using? In what world is there a value to filing charges against a dying man? The answer is that in the world occupied by the Medical Board of California, there is a value: one more investigation to add to its record of accomplishments, one more stat of a doctor that the public was “protected from.”

What drives this broken system?

1.  Political Pressure to Demonstrate Effectiveness

A big part of the pressure on the licensing boards starts higher up the food chain. Licensing boards are responding to political pressure from their “bosses” — the governor, the attorney general, legislators — to show results. Sometimes, the pressure in government is driven by public and media-driven attention, such as news stories that strike a chord with the public about the safety risks of dangerous doctors or other professionals. In 2009, for example, then Governor Schwarzenegger replaced most of the California Board of Registered Nursing one day after the Los Angeles Times and the nonprofit news organization ProPublica published a report about the safety risks from nurses continuing to practice in the pendency of the investigation. When the governor or the legislature is feeling political heat from stories about the Board of Registered Nursing continuing to license nurses convicted of murder or sex offenses, or the Medical Board failing to take action (leaving criminal prosecutors to do so) after patient deaths, you can be sure that the reverberations are going to be felt at the relevant licensing agency. We’ve seen plenty of high profile cases where the board’s handling is unmistakably driven by politics, rather than by the facts of what actually happened.

There is also a financial component to the pressure. Each year, the boards submit their proposed future financial needs to the California Senate and Assembly committees for inclusion in the next year’s budget. Even when higher-ups aren’t taking political flak on a particularly embarrassing story, agencies are under pressure to show results. From time to time, we hear about proposals to save money and get more effective oversight by replacing the current board structure. There’s no better way to demonstrate that the agency is doing its job than the number of disciplinary cases initiated and leading to imposition of discipline. It keeps the budget on track or maybe supports additional hires. Ironically, the low staff rates also lead to poor quality control on case selection and support the tendency to bring lower quality cases as well.

2.  The Consumer Protection Lobby

Aside from the political pressure and the news report about risks to consumers from dangerous doctors, there seem to be a chorus of people who make their living pushing the narrative about dangerous doctors. These stories are akin to reports about dangerous cars needing recalls and dangerous toys to keep away from your kids. After all, who isn’t offended when people are at risk?  Who doesn’t want to make our society safer? Aren’t doctors, rich and entitled, a perfect target, like car companies that cheat on emissions standards?

In reality, there’s no comparison between most individual doctors (and nurses and other health professionals) who comply with regulations and large companies that recklessly endanger the public for profits. When Volkswagen or any other large organization engages in wrongdoing, there was enormous financial incentive to cut corners or, worse, cheat, for profits. There are often enormous financial and personnel resources that could and should have been doing the work of ensuring compliance. Although there are rogue health professionals, most of the time when licensees violate rules (such as inadequate recordkeeping), the problem is not the result of either profit motive or failed safeguards. Instead, the problem is more often than not the opposite: busy professionals struggling to keep up with the pace of work and without the resources to manage complex compliance requirements.

Ironically, even though corporate wrongdoing should be more disturbing than individual misconduct, it is easier to single out and punish doctors and other health professionals than bigger organizations. When government enforcement activity takes place against business organizations, the process ordinarily allows for corrective action plans, for remedial education, for fines, and for all kinds of solutions that allow the organization to stay in business.  (Cases of corporations being dissolved for wrongdoing, such as the case of Arthur Andersen LLP, are rare and extreme.) But with individual health professionals, the drive for “consumer protection” doesn’t allow for corrective action without the embarrassment and shame of a public accusation, and often with draconian consequences.

As a consequence, the consumer protection lobby supports the continuous crackdown by government regulators through cases that serve no good purpose — other than adding to the count of the number of cases followed. The sad reality is that the truly dangerous professionals, people who are actively causing harm, are beyond the ability of most agencies to address. The pursuit of ticky-tack violations, on the other hand, is right in the agencies’ wheelhouse.

Beyond the harm caused to the unfortunate professionals who get sucked into this awful system, the tragedy from a public policy perspective is that the effort that goes into juking the stats prevents work that would actually improve public health. It also leads to a toxic environment in which healthcare professionals and government treat each other as the enemy, rather than collaborating to address real problems.

To quote another another character on The Wire, police officer-turned-attorney Cedric Daniels: “I’ll swallow a lie when I have to, I’ve swallowed a few big ones lately. But the stat games. . . that lie, it’s what ruined this department. Shining up sh** and calling it gold, so that Majors become Colonels and Mayors become Governors; pretending to do police work while the next generation f***ing trains the next how not to do the job.”

I keep waiting for enough people to get fed up with the game of faking healthcare regulatory effectiveness to break the cycle.  But the problem seems to be getting worse, not better.  There’s quite a bit more to say on this subject, and I hope to further explore the problem and discuss practical solutions in some future posts. I’d love to know how widespread you think this problem is and, if so, what to do about it.

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