“Disciplinary Programs: Does Yours Measure Up?” Christine D. Niero, PhD, Professional Testing,...

“Disciplinary Programs: Does Yours Measure Up?”

Christine D. Niero, PhD, Professional Testing, Inc.Richard Bar, Esq., Galland, Kharasch, Greenberg,

Fellman & Swirsky, P.C.D. Scott Williamson, Jr., CAE, MBA, The American

Board for Certification in Orthotics and Prosthetics, Inc.

2006 Annual Conference

Alexandria, Virginia

Council on Licensure, Enforcement and Regulation

Expect the Unexpected: Are We Clearly Prepared?

Presented at the 2006 CLEAR Annual ConferenceSeptember 14-16 Alexandria, Virginia

Overview and Objectives

• Learn about private sector practices

• Learn how to recognize fair and effective disciplinary programs

• Learn how to evaluate private sector codes of ethics


Overview and Objectives

• Understand the scope of authority of private sector certification boards

• Benchmark private sector practices

• Learn how to enhance communication between private and public sectors


Benchmarking Data

Survey of Certification Organizations—Benchmarking

• 37 Question Survey• Disseminated to 879 Certification

Boards• 8% Response Rate (70

respondents)


Benchmarking Data

General Survey Categories• Information about the Certification

Organization• General Information about the

Disciplinary Program• Actionable Offenses• Processing Cases• Qualifications of Personnel Handling

Cases


Benchmarking Data

Organizational Structure• 97% of Certification Programs are

Part of a Parent Non-profit• 44% of Certification Programs are

Separately Incorporated


Benchmarking Data

Reasons Certification Programs Were Established

• 75% Established to Raise Level of Professionalism

• 66% Establish Industry Standards• 40% Consumer Protection


Benchmarking Data

Reasons for Implementing Disciplinary Programs

• 50% Advised by Legal Counsel/Consultants

• 30% Implemented due to Complaints

• 34% Accreditation Compliance (NCCA, ISO 17024, ISO 9000, Other)


Benchmarking Data

Importance of Certification• 77% No Requirement for State or

Federal Licensure• 15% Requirement for the Industry• 88% Moderate or Significant

Impact on Earning Power


Benchmarking Data

Active Certificants• 12% Fewer than 500• 23% Between 501 – 2,500• 23% Between 2,501 – 10,000• 13% Between 10,0001 – 25,000• 13% Between 25,001 – 50,000• 15% More than 50,000


Benchmarking Data

Length Discipline Program has been in Existence

• 47% Since Inception• 33% More Than Last 10 Years• 19% Less Than 5 Years


Benchmarking Data

Requirement to Uphold Code of Conduct

• 72% At time of application• 19% At time certification is awarded• 15% Do not require a pledge to

uphold Code of Conduct• 13% At time of renewal or

recertification


Benchmarking Data

Actionable Offenses• 85% Falsification of Application• 80% Violation of Code• 51% Criminal Charges• 46% Felony Convictions• 31% Poor Services/Products


Benchmarking Data

Actionable Offenses• 28% Violation of Other’s Codes• 21% Misdemeanors


Reference and Guidance Documents

• NCCA Accreditation Standards• ISO/IEC 17024 (ANSI) Accreditation

Standards• 35% of responding organizations

are accredited


NCCA Accreditation Standards

Standard 2—Purpose, Governance, Resources

• Program must be structured and governed to protect against undue influence

• Policies and procedures must provide for autonomy in decision making regarding important aspects of the certification program



Standard 6—Responsibilities to Stakeholders

• Policies and procedures related to discipline and appeals

• Disciplinary policies must address complaints about conduct that is harmful to the public or inappropriate for the discipline



Standard 9—Responsibilities to Stakeholders

• Maintain a list and provide verification of certified individuals

• Addresses “good standing” while safeguarding confidentiality


ISO/IEC 17024

4.1 Certification body4.1.2—The certification body defines

policies and procedures for … suspending or withdrawing the certification


ISO/IEC 17024

4.2 Organizational Structure4.2.1 c)—The certification body shall

have overall responsibility for formulating policies regarding … decisions on certification and the implementation of policies and procedures


ISO/IEC 17024

4.2 Organizational Structure 4.2.6—The certification body shall define

policies and procedures for the resolution of appeals and complaints

• Policies must ensure appeals and complaints are resolved independently and in an unbiased manner


ISO/IEC 17024

4.7—ConfidentialityThrough legally enforceable commitments keep confidential all information … and release information required by law with the requirement of informing individuals concerned


ISO/IEC 17024

6.6 Use of certificates and logos/marks

6.6.2—The certification body shall require discontinued use of all claims to certification; upon suspension or withdrawal of certification the Certificant must return certificate


Typical Codes/Standards

• Abide by Laws• Conduct business in a professional

manner• Respect the confidentiality of client

information



• Perform services in a competent manner

• Be truthful and honest in the performance of the job

• Do not discriminate



• Promote professional integrity • Abide by industry accepted

practice norms• Advance the body of knowledge



• Use logos and credentials in accordance with organization’s policies

• Affirm behaviors and practices consistent with Code of Conduct and Standards of Practice


Developing Fair Disciplinary Programs

• Mission and purpose of certification organization

• Authority over credential (Bylaws) • Guiding documents (Policies and

Procedures; Code of Conduct; Standards of Practice)



• Mission of certification organization typically includes serving the public’s trust, upholding high standards, and credible processes

• Key feature separating certification from regulatory functions and membership status

• Key program component is to document safeguarding the public’s trust



• Scope of Authority—supported in Bylaws, Policies and Procedures and other guiding documents such as published roles and responsibilities for all parties

• Nature of authority for each phase of the process is clearly delineated

• Ultimate authority for process and liability rests with governing board



• Code of Ethics or Standards of Professional Practice/Behavior developed with input and representation of certificant population

• Complaints and investigations must be limited to published codes and standards

• May not extend to issues relating to legitimate marketplace competition



• Codes and Standards are considered “living” documents to keep pace with developments in the profession and/or industry

• Circulated for input from stakeholders• Documents disseminated at application

stage and in public domain (handbook, website)


Benchmarking Data

Codes of Conduct• 86% Have a Code• 81% Enforce it


Benchmarking Data

Frequency of Code Review• 65% As Needed• 30% Every 1 – 3 Years• 6% Every 4 - 6 Years



Fairness in Investigative Procedures

• Complaints must be signed• Complaints must be submitted in writing• State alleged violations of Code or

Standards• Provide adequate statement of facts or

description of violation/incident



• Complainant agrees to disclosure of information to Certificant and authoritative bodies

• Must be actionable or dismissed• Notify the Certificant in writing of an

actionable complaint• Include complaint Code and Rules• Certificant must respond to complaint


Benchmarking Data

Receipt of Complaints• 86% In Writing of Any Kind• 25% Written Complaint Form• 19% By Phone


Benchmarking Data

Sharing Information with All Involved Parties

• 64% No• 36% Yes


Checks & Balances: Role & Authority

Governing Board, Committees, Investigative Panels & Professional Staff

• Governing Board—ultimate responsibility for administration of program and final authority; may handle appeals

• Ethics & Standards Committee—responsibility for administering the program and assuring implementation of Codes/Standards



• Review findings and recommendations of Investigators

• Recommend sanctions, corrective action, further action, dismissal of case

• Formally communicate outcome to the governing board



• Investigators—composed of seasoned certificants and experts in the field of investigation & nature of complaint

• Conduct investigations and have direct interaction with complainant, Certificant and witnesses

• Data gathering and recommendations



Professional Staff & Administrators• Prepare all case documentation• Provide “institutional memory”• Offer assistance with complaint process• Direct to other agencies, BBB, attorney,

etc.• Provide updates regarding complaint

status


Benchmarking Data

Authority to Implement the Disciplinary Program

• 46% Board of Directors• 48% Committee• 26% Staff• 11% Other


Benchmarking Data

Initial Review of Complaints• 86% Staff


Benchmarking Data

Timing of Committee Involvement

• 72% After initial determination of a valid complaint

• 20% At time of review and decision• 14% At the time the complaint is

filed


Conducting Investigations

Prompt and competent investigation All decisions must be “legally

defensible”Requirements for Investigators• Impartiality• No conflict of interest• Expertise • Ability• Time



Volunteer Committees• Confidentiality• Conflict of Interest• Subject Matter Experts• Clearly Defined Objective


Benchmarking Data

Frequency of Disciplinary Matters Review

• 76% As Needed• 8% Quarterly• 10% Semi-Annually• 8% Annually


Benchmarking Data

Number of New Investigations Annually

• 67% Less than 5• 17% Between 6 and 10• 3% Between 11 and 20• 3% Between 21 and 40• 3% Between 41 and 60



Duty of Confidentiality• Facts must remain confidential• Confidentiality agreements for team• Court orders or valid subpoenas• Repercussions of a breach of

confidentiality



Documentation/Independent Evidence

• Documentation/records• Written consent for medical

records• Affidavits• Prior court and arrest records



Investigative Reports• In writing, reviewed by all

investigators and counsel before submission

• Inferences and opinions should be kept out of investigative report

• Focus on facts, not gut feeling


Benchmarking Data

Training of Personnel• 86% No Formal Training• 14% Conduct Formal Training

• 67% Who Conduct Training, Do So Annually


Benchmarking Data

Process Complaints if Certification has Expired

• 72% No• 28% Yes


Benchmarking Data

Involvement of Legal Counsel• 27% No Involvement• 27% After Initial Determination• 29% Reviewing Decision


Ensuring Due Process

Types of Due Process• Substantive – Whether decision is

rationally related to a legitimate organization purpose

• Procedural – Parties who are affected have a right to be given notice and to be heard, and decisions on a matter must be based on facts



Why is due process required?• Fairness to all• Certification may have economic

value• May be viewed as a property right• Risk of lawsuit



Due Process is a Balance Between

• Certificant – A right to be heard• Public Interest – Certification Board must

be able to make a decision on a timely basis or the public interest can be harmed

• Organization – Process cannot be so cumbersome that it overwhelms Certification Board


Levels of Due Process

Lowest Duty – Certification essentially a “feather in one’s cap”

• Hurts reputation, loss of prestige• Courts are less likely to review such a caseModerate Duty – Certification provides economic or

professional advantages• Third party payor preferencesHighest Duty – Required to participate in the

profession• Certification required for state licensure• When certification is an economic necessity• A property right



Creating Due Process • Fair Rules and Procedures• Provide sufficient notice before action

is taken• All are given the opportunity to

review the evidence• Right to be heard/respond• Reason for the action



Creating Due ProcessAppeal right• Be fair• Procedures do not have to adhere to

court-like standard• Follow Certification Board’s Rules and

Procedures



Creating Due Process • Flexibility• Timelines should be guidelines • If proper procedures are followed,

courts show deference to a Certification Board’s knowledge in its specialized area


Benchmarking Data

Timelines—Mandatory or Guidelines

• 61% Guidelines• 39% Mandatory


Benchmarking Data

Due Process• 83% Right to a Hearing• 95% Appeal Process


Benchmarking Data

Hearing/Appeals Recording and Transcription

• 56% No• 44% Yes


Benchmarking Data

Actionable Offenses• 85% Falsification of Application• 80% Violation of Code• 51% Criminal Charges• 46% Felony Convictions• 31% Poor Services/Products


Benchmarking Data

Actionable Offenses• 28% Violation of Other’s Codes• 21% Misdemeanors


Best Practices of Certification Boards

Measures to maintain best practices

• Have experienced and competent professionals establish and maintain Rules, Procedures and Codes

• Obtain legal counsel knowledgeable in certification law




• Create comprehensive procedures for credentialing

• Maintain confidentiality of all cases• Once certification is revoked or

suspended, take efforts so that Certificant stops using credential




• Avoid arbitrary and capricious decisions

• Avoid taking action without sufficient evidence

• Avoid revoking certification for a person indicted, but not convicted in court




• Conduct proper investigations• Give proper notice or an

opportunity to be heard


Case Law

Cases• Certification Boards owe duty to the public

Meneely v. National Spa and Pool Institute, 101 Wash. App. 845 (2000).

• Plaintiff must rely on Certification Board’s representations

Collins v. American Optometric Association, 693 F.2d 636 (1982).


Case Law

Cases • Courts give flexibility to accreditation

programs to set their own standards Ambrose v. New England

Association of Schools and Colleges, Inc., 242 F.3d 488 (2001).


Case Law

Cases• Courts will limit their review to

whether Certification Board’s decision to deny certification was unreasonable

Foundation for Interior Design Education Research v. Savannah College of Art & Design, 244 F.3d 521 (2001).


Case Law

Cases• Courts will not conduct a new review or to

substitute their judgment for the professional judgment of the educators involved in the accreditation process. Primarily focus is whether the accrediting rules are fair and whether Board has followed its own rules

Wilfred Academy of Hair and Beauty Culture, Houston, Texas v. The Southern Association of Colleges and Schools, 957 F.2d 210 (1992).


Case Law

Cases • Standards and procedures must be

reasonable, and not in conflict with the public policy of the jurisdiction

Marjorie Webster Junior College, Inc. v. Middle States Association of

Colleges and Secondary Schools, Inc., 432 F.2d 650 (1970).


Best Practices

• Avoid Acting Too EarlyIf there is pending judicial action, wait for court to decide before revoking certification If decision is on appeal, you may suspend certification and wait for appeal decision

• Avoid Arbitrary Rules and ProceduresEnsure that Certification Board’s rules and procedures hold up to due process analysis


Best Practices

• Avoid acting without Counsel

Counsel should be a part of the process from the time the standards and procedures are drafted If Certification Board has any concern about a decision or pending case, it should contact its attorney


Best Practices

• Avoid Making “Gut” Decisions

Many times, Certificants “appear” to be guilty based on their hostility or offenses unrelated to certification

Make sure that decisions are made based on the evidence, and not because a decision making group “believes he is guilty”


Questions and Discussion

Thank you!


Speaker Contact Information

Speaker Name: Christine D. Niero, PhDOrganization: Professional Testing, Inc.Phone: 703-430-1322E-mail: [email protected]: www.proftesting.comSurvey results: Industry Links, Articles,

(bottom left)



Speaker Name: Scott Williamson, CAE, MBA

Organization: The American Board for Certification in Orthotics and Prosthetics

Phone: 703-836-7114Fax: 703-836-0838E-mail: [email protected]: www.abcop.org



Speaker Name: Richard Bar, Esq.Organization: Galland, Kharasch,

Greenberg, Fellman & Swirsky, PCPhone: 202-342-6787Fax: 202-342-5219E-mail: [email protected]: www.gkglaw.com

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