Another Voice: A Consumer Perspective on Health Care Regulation

Another Voice: A Consumer Perspective on Health Care Regulation
Marti Kranzberg, PhD, CGP

Last year The Group Circle ran an article (“Practitioners Under Fire from Licensing Boards, February 1998) about the overarching power of licensing boards to impact the professional lives of the practitioners they regulate. The most glaring problems mentioned included the absence of due process that allows accused professionals to hear complaints against them and to prepare an adequate defense, the non-binding quality of decisions made by administrative law judges who only “advise” the boards on complaints heard in their courts, inadequate procedures for appealing board decisions, and the conflicting mandates of boards to investigate, prosecute, adjudicate and sanction licensees.

While clinicians may experience themselves as vulnerable to the chilling and seemingly unlimited power of licensing boards, an organization concerned with the public accountability of health care providers believes licensing boards have serious shortcomings from a consumer perspective. The Pew Health Professions Commission, administered by the Center of the Health Professions at the University of California, San Francisco, is dedicated to “influencing policy makers and educators to produce health care professionals who meet the changing needs of the American health care system.” The Commission contends that licensing boards are not aggressive enough in protecting consumers. In a report entitled Strengthening Consumer Protection: Priorities for Health Care Workforce Regulation, the Commission charges that although licensing boards are mandated to protect the public from incompetent professionals, this responsibility is “eclipsed by a tacit goal of protecting the professions’ economic prerogatives. The result is limited public accountability, support for monopolies that limit access to care and lack of national uniformity.” The report calls for sweeping changes in the regulation of health care professionals, and licensing boards are targeted for major reform.

The Pew Health Professions Commission
According to Catherine Dower, JD, Co-Director of the Taskforce on Health Care Workforce Regulation, the goal of the Pew Health Professions Commission is to influence policy makers, specifically state legislatures that regulate the practice of health care professionals. A secondary goal is to influence Congress. To this end, the Commission mails copies of its reports to legislators and posts publications on its web site. “Legislative implementation templates” are included in the reports to help to shape legislation. “The Commission does not lobby and has no authority beyond persuasion,” said Ms. Dower, who also noted that the Commission has no legislative or regulatory power.

The Commission clearly represents health care consumers. Chaired by George Mitchell, a former United States Senator, other Commission members include university professors, college presidents, an associate dean of a law school, the chair and president of a major health care provider, the president of an advocacy group, and a former state deputy secretary and health officer, among others. The sole representative of psychotherapy providers is a psychiatrist. When asked about the absence of “front line” providers, Ms. Dower stated that the focus of the Commission is policy-making, and Commission members are carefully chosen for their expertise in this area.

The premise of the 1998 report is that regulatory boards for health care professionals have not fulfilled their mandate to protect consumers from incompetent health care providers. At best, they have established “minimum standards for safe practice and removed the egregiously incompetent.” At worst, they have served to shield the professions that they regulate rather than to protect consumers. In addition, regulatory boards have not kept up with the shifting ground of health care, often conceding concerns of quality assurance to managed care organizations. The result has been limited public accountability, turf battles that restrict consumer access to competent health care, and widely varying standards of practice from one state to another.

Regulatory Boards and Governance Structures
The report addresses the conflicting roles of economic and professional self-interest and protecting the public from incompetence, and offers several recommendations.

Congress should establish a national policy body to research, develop, and publish national scopes of practice and continuing competency standards for state legislatures to implement. Relevant stakeholders, such as hospitals and health plans, health professional associations, consumer organizations, health services researchers, federations of state regulatory boards, and state and federal governments, would be included on this advisory board.
States should require policy oversight and coordination for professional regulation at the state level. This would be accomplished with an oversight board composed of a majority of public members.
Individual professional boards should be more accountable to the public by increasing public representation on the boards to at least one-third non-professional members.
Professional boards should provide practice-relevant information about their licensees to the public. Laws that prohibit the disclosure of malpractice information should be changed. The public should have access to the following information about licensees: education, private certifications, continuing competence assurances, disciplinary actions and sanctions taken by the board, hospital or workplace, criminal convictions, and malpractice settlements. The Commission contends that there should also exist “reasonable protections of practitioner confidentiality.”
States should provide resources to adequately staff and equip all professional boards to carry out their responsibilities.
Congress should enact legislation that facilitates professional mobility and practice across state boundaries.

Professional Practice Authority
The Commission also addressed issues where health care practitioners are permitted to provide various services. The recommendations are an attempt to intervene in the turf battles that exist between health care professions vying for the health care market. They also attempt to address consumer choice among health care providers by clearly defining who is qualified to practice.

A national policy advisory body should develop standards, including model legislative language, for uniform practice acts.
States should enact and implement scopes of practice that are nationally uniform for each profession.
Until national models for practice acts can be developed and adopted, states should develop methods for assessing practice authority and collecting data on health care. They should develop alternative dispute resolution processes to resolve scope of practice disputes, procedures for demonstration projects on effectiveness, quality of care, and costs associated with a profession expanding its scope of practice. Comprehensive “sunrise” and “sunset” processes should be created to ensure consumer protection.

Continuing Competence
Professionals are assessed for competence upon obtaining licensure. After their initial entry into a profession, however, all health care providers are not required to prove continuing competence in their field. Although most professions mandate continuing education, it is generally agreed that CEUs are not sufficient to ensure quality throughout a practitioner’s career. In addition, current systems for detecting incompetence are imperfect. Finally, the Commission recommended that:

States should require practitioners to demonstrate their competence in the knowledge, judgment, and technical and interpersonal skills relevant to their jobs throughout their careers.

Implications of the Report
Many of the recommendations are clearly in the interest of both consumers and health care providers. The Pew Health Professions Commission may, however, be limiting the scope of its report by not including the perspective of clinicians who work directly with health care consumers. Boards need professionals who understand the subtleties of their particular professions. In the field of psychotherapy, for example, boards need the expertise of professionals who are likely to understand the complexities of complaints that may be colored by the transference that is inherent in the therapeutic process.

It is important for consumers and providers to form alliances to stem the tide of health care systems that sacrifice quality of care for profit. There is also a need for consumers to have a strong voice on licensing boards to ensure that those boards do, indeed, protect consumers from incompetent professionals. The Commission represents a trend in this country for well-informed consumers to influence the shifting ground of health care. Changes are in the air, and the Pew Health Professions Commission is persuasively advocating for health care consumers with well-researched, reader-friendly reports and model legislation.

This article was published in the June/July 1999 issue of The Group Circle.