Midwifery Complaint Process Guide, Washington State

COMPLAINT PROCESS

Midwifery Program

DOH 679-157 April 2019

Agenda

• Big Picture
• Authorization
• Investigation
• Timelines
• Enforcement Washington State Department of Health | 2

BIG PICTURE

Case Management Team

• According to RCW 18.130.040 Midwifery is a secretary profession - discipline is handled by a case management team (CMT)

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Disciplining Authority Actors Of the Case Management Team

Executive Director/Program Manager (Office of Health Professions)

Case Manager Investigator (Office of Investigative (Office of Investigative and Legal Services) and Legal Services)

Supervising Staff Attorney (Office of Investigative and Legal Services)

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Disciplinary Process

Complaint Intake Close CaseCase Assessment Investigation Case Disposition Close Case Legal Action/Adjudication Settlement attemptPre-Hearing Hearing SettledNot Settled Post-Hearing Monitoring Not Comply Comply Washington State Department of Health | 6

AUTHORIZATION

Reports

• Reports come from a variety of sources (e.g. patients,
  other healthcare professionals, insurance companies, facilities, national associations, data bank reports, criminal background checks).

• Anonymous and phone reports pose unique challenges
  but are investigated based on nature of the allegation and supporting evidence.

*While we use the term "complaint" freely, technically, notice of alleged unprofessional conduct does not become a "complaint" until and unless the disciplining authority chooses to investigate it. Until then, the matter is a "report." RCW 18.130.095(1)(a). Washington State Department of Health | 8

Assessing Reports

• Look at the 4 corners of the report
• Don't assume things
• Don't conduct outside research
• First, on the face of the report, is there a violation?
• If no, close the report.

• Second, if yes, does the violation rise to the level of
  warranting an investigation?

• Severity of the violation

• Risk to the public health and safety

• What sanctions are available that serve to protect
  the public and if possible, rehabilitate the licensee? Washington State Department of Health | 9

Case Priority

Priority Code Priority Description Reason (These are just examples and this list is not meant

to be exhaustive. Each case must be assessed on the facts and information presented.) Priority A ImminentPossible summary action involving death, serious injury, Danger or risk of immediate sexual misconduct, abuse, diversion, substance abuse, dangerprohibition in another state, prohibition from unsupervised access to vulnerable adults Priority B Serious risk Death, serious injury, sexual misconduct, abuse, pattern indicating gross incompetence, diversion, substance abuse Priority C Moderate risk Standard of care

Priority D Minor risk No patient harm

Priority E Technical or Credential application, default student loan, failure to pay Questionable violation(s) child support, failure to complete CEs

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INVESTIGATION

Referral for Investigation

• Once case is authorized by the CMT, case is forwarded
  to the Office of Investigative and Legal Services (OILS)

• Case is reviewed by the supervising investigator

• Ensure no jurisdiction issues

• Ensure proper authorization
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Assignment of Cases & Investigation Plan

• Supervising investigator assigns cases
• Investigator determines the investigation plan
• Discusses with supervisor as needed

• May utilize a licensed midwife or midwifery member
  of the midwifery advisory committee, as needed

• Investigators gather evidence

• Investigators are not decision makers

• Midwifery Advisory Committee members are also not
  decision makers

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Whistleblower Waiver

• Whistleblower protection bars the disclosure of a
  complainant's identity. (RCW 43.70.075; Chapter 246-15 WAC)

• In order to effectively investigate a complaint, OILS asks
  for a release from the complainant.

• If the complainant will not sign a release, the case is
  evaluated to determine if an effective investigation is possible without identifying the complainant.

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Finished Investigation

• Once the investigation is completed, the investigator provides the file to the case manager for review and presentation to CMT members.

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TIMELINES

Uniform Procedures for Complaint Resolution Chapter 246-14 WAC

• Initial Assessment - 21 days
• WAC 246-14-040
• Investigation of Complaints - 170 days
• WAC 246-14-050
• Case Disposition - 140 days
• WAC 246-14-060
• Adjudication of SOCs - 180 days
• WAC 246-14-090 Washington State Department of Health | 17

Timeframe for Attorney General's Office

• Conduct based summary suspension cases - 10 days
• Mandatory summary suspension cases - 20 days
• Traditional cases - 30 days Washington State Department of Health | 18

ENFORCEMENT

Who are all these attorneys?

• Legal Advisor: Agriculture and Health Division of the
  Attorney General's Office (AGO)

• Prosecuting Attorneys:

• Agriculture and Health Division of the AGO for
  Secretary Professions

• Government Compliance and Enforcement Division
  of the AGO for Board/Commission Professions

• Staff Attorneys: Department of Health, Office of
  Investigative and Legal Services

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Laws and Rules for Professions

• Each profession has an enabling statures that empower
  the Secretary (or Board/Commission) to regulate that profession.

• Each profession has a practice act that defines the
  profession and requires a person to obtain a license to practice that profession.

• Each profession has rules that further define and help
  regulate what licensees can do.

• Uniform Disciplinary Act (Chapter 18.130 RCW)
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Midwifery Laws and Rules

• Chapter 18.50 RCW

• Chapter 246-834 WAC
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• Engage in an act involving
  moral turpitude, dishonesty, or corruption (§1)

• Misrepresentation to obtain a
  license (§2)

• Incompetence, negligence, or
  malpractice that results in injury or creates unreasonable risk of harm (§4)

Note: § stands for the sub-section number within in the WAC

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• Suspension or restriction of license in another jurisdiction
  (§5; RCW 18.130.370)

• Possession, use, prescription for use or distribution of
  controlled substances or legend drugs other than for legitimate purpose, diversion, violation of any drug law, or prescribing for oneself (§6)

• Violation of any RCW or WAC regulating the profession
  (§7)

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• Failure to cooperate with the disciplining authority (§8)

• Failure to comply with an order issued by the disciplining
  authority (§9)

• Practice beyond the scope (§12)

• Failure to adequately supervise auxiliary staff (§14)
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• Conviction of gross
  misdemeanor or felony (§17)

• Misuse of alcohol or drugs (§23)

• Abuse or sexual contact with
  client or patient (§24; Chapter 246-860 WAC)

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Due Process

• CMT must authorize initiation of investigation and
  initiation of legal action

• Quasi-Criminal

• CMT must authorize and define the scope of
  investigation (Yoshinaka v. State)

• Constitutional protections for unreasonable
  searches (Seymour v. State)

• Complaint must indicate merit of possible UDA
  violation

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Legal Action

• Notice of Decision (RCW 18.130.055)
• Deny or grant credential with conditions
• Burden on applicant
• Notice of Required Examination prior to NOD
• Statement of Allegations (RCW 18.130.172)
• Not a finding of unprofessional conduct

• Respondent must acknowledge if allegations
  proven it would be unprofessional conduct

• Reported to the National Practitioner Databank
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Legal Action

• Statement of Charges (RCW 18.130.090)
• Public notice
• Request hearing within 20 days or default
• Formal hearing process

• Summary action (RCW 34.05.422; RCW
  34.05.479 ; RCW 18.130.050(8))

• Existence of immediate danger to
  public health, safety, or welfare

• Summary action addresses danger

• Only take such action as is
  necessary to address danger Washington State Department of Health | 29

Other Legal Action

• Notice of mental or physical examination (RCW
  18.130.170 )

• Reinstatement (RCW 18.130.150)
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Sanctions

• Sanction schedules identify the severity & duration of sanction (WAC 246-16-800 to 890)

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Sanctions

• Sanction can include:
• Suspension
• Probation with conditions
• Practice restrictions
• Remedial education or treatment
• Cost recovery (STID) or fine (Agreed Order)
• Must use a Statement of Charges/Agreed Order for revocation, suspension, censure or reprimand, or fine

See RCW 18.130.160

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Sanctions

Things to consider before authorizing disciplinary action:

• To proceed with SOA/STID, there should be a strong
  enough case to proceed with formal action.

• What are the mitigating and aggravating factors
  (e.g. length in practice, minor technical violation, abuse of trust, injury caused)?

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