Not Just Culture

The following is an essay I recently wrote about the health professions regulatory system in the US. It is written in the format for Narrative Matter’s “narrative policy” essay, and as such is longer than my typical blog posts. Please share widely, with proper attribution, of course…. I want to thank Morris M. Kleiner for reviewing drafts of the essay for accuracy.

One evening this past April, I was sitting on the floor of O’Hare airport, near a packed gate, waiting to board my flight back home to Seattle. Headphones on, working on my laptop, I clicked on the Seattle Times news site. “Nurses’ Death Follows Tragedy,” was the title of the lead story, with the byline summary, “The suicide of Kimberly Hiatt, a nurse who accidentally gave an infant a fatal overdose last year at Seattle Children’s hospital, has closed an investigation but opened wounds for her friends and family members.” (Carol Ostrom, The Seattle Times, 21 April 2011)

I read the brief article, and then stared at the ubiquitous overhead TV screens in the waiting area, wondering why her death wasn’t included in the endless loop of news. Kim’s story seemed weighty—national in scope. Kim was 50 when she died from hanging herself. She had miscalculated a medication dosage for a medically fragile infant, and immediately reported her mistake. This was the first serious medical error Kim had made in her 25-year career. An official medical report stated it was unclear that the medication error contributed to the infant’s death. But the hospital fired Kim. And the Washington State Nursing Quality Assurance Commission—the sate nurse licensing unit—fined her $3,000 and placed such severe restrictions on her nursing license that she could no longer find employment as a nurse.

In the weeks following news of Kim’s death, I was left wondering how this could have happened—not the medical error—but the cascade of negative consequences for Kim. I thought I knew how health systems worked; I had a doctorate in health policy. And I was convinced that Washington State had a progressive health professions regulatory system—that things like this couldn’t happen here—or now.

The week after Kim’s death hit the news, the topic of my health policy class was quality of care. I planned to talk about just culture: having open, fair, and just organizational cultures supportive of patient safety. There is strong evidence indicating that just cultures are more effective at ensuring patient safety than are traditional punitive health care work climates. Kim was an alumnus of the nursing school where I taught. Most of my nursing students were graduating in a month and would obtain their Washington State nursing license. Our class discussion was no longer at the theoretical level.

But I had a more personal connection with the news of Kim’s death: I was seeking closure to an investigation of my own nursing license by a health regulatory board. I was seeking both emotional and literal closure. For the past year, I had been writing a book about my work as a nurse practitioner providing health care to homeless people in the 1980s. Back then, my life and my career had been derailed by a collision with a state licensing system.

Early in my career as a nurse practitioner, I had my nursing license investigated by the Virginia Health Regulatory Boards of Medicine and Nursing. At the time, I was the sole provider at a clinic for Richmond’s homeless population. I was working within written protocols with a supervising physician available for telephone consultation. This was in compliance with the practice regulations in Virginia. In my second year of working at the clinic, I had an unannounced visit by an investigator for the Health Regulatory Board. I remember the day—and him—vividly.

I noticed an older man walk into the waiting room of the clinic. His shoes were what I noticed first: beige puffy comfort shoes with Velcro straps. He pulled out a business card and handed it to me.

“ I’m doing an investigation of a complaint made to the Boards of Medicine and Nursing about your practice.”

I was stunned. My mind raced through worst-case scenarios: had I killed a patient?

“What complaint? And where did it come from?” I asked.

“I can’t tell you that information. It was requested to remain anonymous. I’m just gathering information for my supervisors.”

He asked to see my patient files and medication dispensary. He stayed for several hours, interrupting clinic.

The health regulatory board investigation of my nursing license sent destructive tentacles—like mold hyphae—throughout my life. The process of the investigation remained unclear to me. I was told they were investigating my scope of practice, including prescribing of medications. Fear was the first thing I felt: fear verging on terror. The most immediate threat was the potential loss of my nursing license. This would have devastating effects on my family since my salary supported all of us. My husband was still in seminary, and I was paying for childcare for our then five-month-old son so I could work and my husband could finish school. An additional threat was the loss of my professional reputation: people assume there are valid reasons for an investigation.

For several months after the investigator’s initial visit, I couldn’t sleep well. I lost so much weight that I had to stop nursing my baby before he was six months old, and that made me feel even more guilt as a working mother. My husband and I got in spats. Due to the ongoing investigation, I was forced to work at the clinic in reduced capacity. The Health Regulatory Board kept threatening to close the clinic, and they finally did for several weeks in the eighth month of the investigation.

The Board of Directors for the clinic where I worked responded to the investigation by increasing their efforts to hire a full-time physician. No physicians were clamoring to do this work. The clinic Executive Director enlisted the help of a volunteer lawyer who talked with lawyers at the Virginia Office of the Attorney General, who advised the Health Regulatory Board. No one seemed to know what nurse practitioners could and couldn’t do. I was told it was a contested area of state law, and that they had never had a nurse practitioner as the only health care provider for a clinic. Even at the time, I knew I was a pawn in the grand political game of professional turf battles.

I was treated as if I were guilty until proven innocent. Investigators and lawyers told me not to talk to anyone about the situation or it could make the outcome worse—effectively issuing a gag order and isolating me from seeking help. More recently, I’ve asked myself why I didn’t get my own lawyer back then. No one advised me to and I couldn’t afford one. There were large gaps of time of not hearing anything about the investigation, but I was always aware that it was unresolved, like a large noose dangling above my head that could come down around my neck at any time.

The stress of the investigation contributed to the dissolution of my marriage, loss of my job, and my own spiral into homelessness. I seriously contemplated suicide on several occasions during the investigation. It was such a painful chapter of my life that I had not been able to look at it before—or talk about it.

Twenty-five years later, as I was writing a book about my work with people experiencing homelessness, I wanted to include the investigation of my license. I realized I had no documentation on it. When I read the news of Kim’s death in April of this year, I was awaiting a reply from the Virginia Board of Nursing to my written request for a copy of my case file. I had expected some resistance, but was confident I would eventually see copies of the investigation. I asked for redacted records: I was not interested in knowing who had ratted on me.

Jay Douglas, the Executive Director of the Virginia Board of Nursing, refused my request. In a telephone conversation with me in late February, she stated that they were confidential records, “Board property, and besides, Virginia’s Freedom of Information Act doesn’t apply to people who are not state residents.” This made me angry: confidential records on me by a government agency that I wasn’t allowed to see? This wasn’t a matter of national security; I wasn’t a terrorist. And freedom of information—the right to a transparent and accountable government—only applies to certain citizens? I studied the relevant laws and wrote a polite rebuttal based on the Code of Virginia. While I waited for her reply, I began to do more research on health care workforce regulatory systems. Between my own experience and that of Kim Hiatt, I wanted a better understanding of how these systems worked.

Health Care Workforce Regulation

All states in the US license health care professionals, as well as an increasing number of other occupations ranging from architects to wrestlers, and even frog farmers. These are labor market institutions, administrative agencies with executive, legislative and judicial powers, ostensibly under public mandate to protect public health and safety. According to economist Morris M. Kleiner in Licensing Occupations: Ensuring Quality or Restricting Competition? (Upjohn Institute Press, 2006), they are self-policing, self-regulating bodies, and have been identified as state-sanctioned monopolies. The most autonomous units of state health care licensing systems—medical boards—have been formed by powerful professional associations and their lobbying arms which make large campaign contributions to state legislators. Many state legislators who serve on health subcommittees, which make the health care workforce regulations, are themselves health care providers and members of the professional organizations “funding” state regulatory systems.

But do these state health regulatory systems really protect public health? While there may be the perception of protection from ‘charlatans, quacks, sexual predators and drug abusers,’ it is not supported by data. Kleiner points out that there are no data to support improvement in overall quality of health care by state health regulatory systems. There is some indication that higher-income people gain from stricter health professions licensing, but there is no measurable impact on overall quality of health care for the population as a whole. There is robust evidence that by effectively limiting supply, licensing of health professions increases overall health care costs, and creates longer wait times for health care services. This worsens health inequities in the US. In addition, licensing laws that standardize health care services effectively restrict innovation and improvements in the health care system. Health care workforce regulatory systems in all states are notoriously inefficient, with many taking over two years to investigate and resolve even the most serious of cases. There are wide inconsistencies between the different health professions licensing boards in how they discipline individual health care providers for similar infractions, as well as inconsistencies between states.

The Pew Health Professions Commission Taskforce on Health Care Workforce Regulation—a national, nonpartisan panel of experts—issued a series of reports in the late 1990s’. They called this a significant public health policy issue that flies under the radar. They stated there is a lack of oversight and accountability of the state regulatory systems, as well as a lack of effort to provide consumers access to information on health care providers’ practice histories. They called for national scope-of-practice standards, as well as consideration of changing from licensure to certification of health care providers, which is more likely to improve overall quality of care while not driving up health care costs. According to the reports, the next best alternative to a certification system would be to appoint more neutral parties as the decision makers on licensing boards, with members of the profession available to advise board members on technical issues.

None of the major Pew Commission recommended changes have been made. Instead, there have been incremental reforms, including improved websites, and uniform sanctioning guidelines, which sound good in theory, but have not proven to be effective in practice. According to Kleiner and the Pew Commission experts, powerful professional associations that helped create the licensing system in the first place, benefit from its continued existence. Higher income health professionals benefit from limiting supply by restricting competition, thus boosting their own salaries. Administrators at universities and technical schools support its continuance, since their institutions benefit financially from licensing requirements tied to entry and continuing education. And the current state licensing system continues because the risk-averse voting public has been repeatedly told it is an effective system protecting them from harm by sorting out the “bad apples” of incompetent, impaired, immoral health care providers.

______________________________

Ms. Douglas informed me that without a court order she refused to provide a redacted copy of my individual case file. It took hiring a lawyer to convince her to provide a copy of the Case Decision Memorandum for the investigation of my nursing license. Dated February 13, 1989, the memo stated that if I continued consulting with my supervising physician as reported, no further action would be taken. It concluded, “There have been no further complaints or problems and the case is closed with no violation and no sanctions.” The memo confirmed that it had been a scope of practice issue, and that the Medical Board had wanted tighter reign on my nursing practice. What surprised me though was the date of the memo. While I had remembered the investigation as being a painfully long process, I hadn’t realized it took 16 months. My husband and I had separated a few days before the official closure of my case. And by that time I was disillusioned with nursing and with our health care system.

Ironically, the same week I received the one-page Case Decision Memorandum, I received 1,500 pages of redacted, detailed information on the case of Kimberly Hiatt from the Washington State Health Department. I requested Kim’s files in order to better understand the current decision-making process of the Nursing Commission in a state where I am responsible for teaching nursing students health policy. And in a state where I maintain nurse and nurse practitioner licenses. Reading through Kim’s records only deepened my distrust of the health professions regulatory system. The Washington State Nursing Commission refused the request by Kim’s lawyer for copies of their investigative reports in order to adequately advise his client.

I remind myself that Ms. Douglas and others in the health regulatory system are well-intentioned people who believe their work promotes public health and safety. But the system they work within is not part of a just culture. The current regulatory system is not working to protect public health and safety. It is not working for the majority of health care providers, who justifiably view it as capricious, punitive, and with little oversight or accountability. If we are to have a higher quality and more equitable health care system in our country, it is essential that we reform the byzantine health professions licensing system.