Kansas Professional Licensing Attorney Explains The Kansas Board Of Healing Arts Sanction Guidelines-Four Of Four

/in /by

The Kansas Board of Healing Arts (“the Board”) issued sanction guidelines for misconduct in 2008.  The guidelines delineate ten categories of ethical violations. The Board discussed the ethical violations and provided insight into sanction rationale. A grid accompanies the guidelines. The grid is a sliding scale. The grid computes an appropriate sanction based on the severity of the misconduct, the prior history of the licensee, along with any mitigating or aggravating factors. The Board specifically reserves its discretion to punish to the extent allowed by Kansas law and therefore depart from the sanction grid. Notwithstanding, the guidelines establish uniformity of sanctions for ethical violations. Kansas professional licensing attorney Danielle Sanger will fight to protect your rights if you face sanctions for an alleged ethical violation.

Determining the appropriate sanction rests upon several factors.  According to the guidelines, the Board will consider the goals for sanction. Those goals may be designed to protect the public from harm. Public harm can be physical harm and economic harm as well. Physical harm may befalls a patient due to delayed treatment or suffering a worsened outcome. The Board will consider both the mitigating and aggravating conduct of the licensee.  The Board will then decide upon discipline on a “graduated scale” on the sanction grid. The Board must evaluate discipline based upon consideration of whether the licensee committed multiple violations and repeated violations.

The guidelines provide instruction for using the grid to establish a sanction. The starting point is the “presumed sanction” section. Next, the Board will examine whether the licensee committed multiple offenses of the same conduct or whether the misconduct constitutes separate offenses. The Board aggregates the sanctions for multiple instances of misconduct falling into different categories of misconduct.  If the alleged misconduct appears to be multiple instances of the same offense, then the Board utilizes the grid referencing the presumptive sanctioning for misconduct of multiple offenses. The Board issues the most severe sanction under the guidelines if misconduct falls into different categories.  Once the Board identifies the presumed sanction, then the Board will apply any mitigating or aggravating factors to determine the appropriate sanction.  The Board must identify any mitigating and aggravating factors in its decision.

Mitigating and aggravating factors depend on the facts of the given case. Aggravating factors may lead to a more severe punishment. Mitigating factors may have the opposite effect. The Board examines the following factors in determining the existence of mitigation or aggravation:

  1. Nature and seriousness of the allegations;
  2. Patient characteristics such as age and level of vulnerability;
  3. Frequency of the act constituting misconduct;
  4. Injuries suffered by the patient, if any;
  5. Potential injury;
  6. Abuse of trust;
  7. Consent of patient, if relevant to circumstances;
  8. Intent of the offender;
  9. Motive to commit the act;
  10. Disciplinary record of the licensee;
  11. Health of licensee, if relevant;
  12. Level of cooperation with the investigation;
  13. Remorse;
  14. Impact upon public perception;
  15. Whether the misconduct violated the criminal law;
  16. Dishonesty;
  17. Licensee’s level of competence;
  18. Potential for rehabilitation;
  19. Degree of negligence; and
  20. History of previous violations.

The Board may consider other mitigating and aggravating factors in addition to those listed. The Board then computes the appropriate sanction after close consideration of all of the factors involved. Only then will it issue a sanction that it deems fair and just in the circumstances.

Committed Advocate Ready To Help

Kansas Professional Licensing Attorney Danielle Sanger is committed to defending your professional license from discipline. Every person can reform their ways and correct their actions. Attorney Sanger is dedicated to helping you keep your license so you can maintain your livelihood. Call Attorney Sanger today at 785-979-4353 to discuss your options during your free consultation.

Kansas Professional Licensing Attorney Explains The Kansas Board Of Healing Arts Sanction Guidelines-Part Three Of Four

/in /by

The Kansas Board of Healing Arts (“the Board”) in 2008 released guidelines for disciplinary sanctions. The Board broke the guidelines down into ten general categories of ethical violations.  The guidelines explain the various categories of ethical violations and the rationale for the proposed sanctions.  The Board follows the guidelines when devising a sanction for an ethical violation. However, these are not set in stone. The Board specifically retained their discretion to sanction to the extent allowed by law. Therefore, the guidelines are suggestions for sanctions. Notwithstanding, a licensee must be aware of the potential penalties they may suffer if the Board finds them in responsible for an ethical violation. If you find yourself in that situation, Kansas professional licensing attorney Danielle Sanger will use the guidelines to obtain the best result for your situation.

This article discusses the sixth through tenth categories of ethical violations. A previous article discusses categories one through five. The sixth category of ethical violations is concerned with advertising.  The First Amendment to the United States Constitution protects the licensee’s right to free speech.  Advertising is a protected form of speech.   Freedom of speech does not extend to false, misleading, or deceptive claims. While the advertising technique of
puffing is permitted, factual misrepresentations must be sanctioned. The Board recommends that sanctions for making factual misrepresentations include remediation, deterring future errors, and a punitive sanction such as a fine.  The Board considers false advertising that is confusing to patients rather than leading to potential physical or monetary harm is “less serious.”

The seventh category of ethical violations relates to the lack of fitness to practice a healing art. Impairments affect the licensee’s ability to practice with “reasonable skill and safety.” Impairments include drug and alcohol abuse in addition to mental and physical limitations. The Board will look to the practitioner to provide insight into the condition when fashioning an appropriate sanction.  The guidelines indicate that the Board will look more favorably upon a practitioner who seeks help for their condition. Addressing the impairment is the goal of the sanction, however, accomplishing that goal may result in suspension during the licensee’s rehabilitation period.  In treating practitioners who are cooperative and seek treatment differently, the Board’s policy that referral to a treatment facility or monitoring is not disciplinary action if the sole reason is a treatment for impairment.  The Board encourages its members to seek treatment and therefore the action is not considered a sanction. Notwithstanding, the Board will consider any available sanction for a licensee who is uncooperative or when “uninterrupted practice endangers the public.”

Administrative requirements are the eighth category of ethical violations. Administrative requirements involve reporting breast examine abnormality, maintaining liability insurance, and posting requirements. The Board levies sanctions for administrative violations by examining the state of mind of the practitioner.

Inappropriate prescribing refers to prescribing medication without a legitimate medical purpose as well as failing to follow prescribing requirements.  The Board determines this category of offense as serious because of the potential health risk involved. The Board cautions practitioners that following the Board’s policies on pain management is distinct from inappropriate prescribing. Furthermore, prescribing medication in a manner that deviates from the standard of care is considered incompetence unless the behavior is criminal in nature. The Board will distinguish behavior that is merely negligent from more deviant behavior when devising sanctions.

The final ethical category is proper maintenance of patient records. Healthcare professionals have a duty to maintain patient records and release them upon patient request.  This category includes unethically releasing private information.   The Board is particularly interested in the pervasiveness of the licensee’s failure to properly maintain patient records when fashioning an appropriate sanction.

Kansas Professional Licensing Attorney Ready to Help

Kansas Professional Licensing Attorney Danielle Sanger is a zealous advocate for professional license holders. Attorney Sanger possesses the skill and expertise to protect your livelihood. Call Attorney Sanger today at 785-979-4353 to schedule your no obligation consultation.

Kansas Professional Licensing Attorney Explains The Kansas Board Of Healing Arts Sanction Guidelines-Part Two Of Four

/in /by

The Kansas Board of Healing Arts (“the Board”) promulgated its sanctioning guidelines in 2008. The Board issued a sanction grid to accompany the guidelines.  The Board grouped laws and regulations under headings describing a particular type of misconduct. The grid compares the severity of the allegations to the licensee’s prior record of discipline. Then a sliding scale determines the appropriate sanction for the alleged misconduct.  The Board made it very clear: it reserves the right to order any lawful sanction it sees fit within the bounds of its discretion and is not limited by the guidelines.  Nonetheless, the guidelines assist licensees facing discipline understand the potential discipline they face and can advocate for alternatives. Kansas professional licensing attorney Danielle Sanger is a tireless advocate for licensees facing discipline and will use the guidelines to your advantage.

The Board divided the guidelines into ten general categories of professional misconduct. The first through the fifth categories are discussed here; whereas categories six through ten are discussed in a subsequent article. The first category of misconduct falls under the general heading of “competence.” The Guidelines list multiple potential violations under the general category of competence. The Board’s rationale for sanctioning lack of competency is very clear. The Board follows the ruling of the Kansas Supreme Court regarding incompetence in the healing arts. The Court stated, as quoted in the guidelines, “[n]o conduct or practice could be more devastating to the health and welfare of a patient or the public than incompetency . . .” Consequently, the Board seeks to sanction incompetence for failing to adhere to the appropriate standard of care resulting in gross negligence or repeated instances of ordinary negligence. Incompetence applies to the practitioner’s actions and his or her actions about the supervision of another healing art professional.

The Board describes the second category of sanctionable offenses as general misconduct. The Board defines misconduct as conduct that is “unsafe or improper.” According to the Board, general misconduct is dishonorable conduct or unprofessional conduct as well.  The Board further defines misconduct as conduct that does not conform to the standards necessary to protect the public from harm.  The Board defines professionalism as qualities of integrity, respect, and compassion. Misconduct is the exact opposite: unethical, corrupt, and dishonest. The Guidelines state clearly that the sanction for misconduct is punitive in nature, rather than remedial.

Criminal conduct is sanctionable by the Board. The Board concerns itself with the criminal conduct of its members because criminal conduct is evidence of lack of fitness for treating patients. The Board is also concerned about the public trust deteriorating if criminal acts committed by its members went unpunished. The Board announced in the Guidelines that discipline for criminal acts must be punitive in nature. The Board considers criminal conduct as serious in nature under the sanction grid when fashioning discipline.

The fourth category of misconduct is sexual misconduct. Sexual activity between consenting adults is misconduct if one of the consenting adults is a patient. Exploiting vulnerable patients for sexual gratification is not only a crime but a very serious violation of the ethical rules. The Guidelines call for the revocation of the license if allegations such as these are proved. The Board has a zero-tolerance policy for sexual misconduct involving a minor and counsels such intolerance extend to sexual contact with an adult as well. Sexual misconduct extends to the work environment. Sexual advances made by a supervising licensee to a subordinate create an untenable situation and must be sanctioned. The Board considers sexual misconduct such as sexual harassment to be a serious offense and has enumerated many factors to consider when deciphering an appropriate sanction.

The fifth category of misconduct involves business transactions. Misconduct involving business transactions ranges from over charging, fee-splitting, and welfare fraud to business transactions involving patients. This category of misconduct falls in the middle of the sentencing grid.

Kansas Professional Licensing Attorney Danielle Sanger will fight to protect your livelihood. Attorney Sanger is a zealous advocate for her clients. Call attorney Sanger today at 785-979-4353 to schedule your free consultation.

Kansas Professional Licensing Attorney Explains The Kansas Board Of Healing Arts Sanction Guidelines-Part One Of Four

/in /by

The Kansas Board of Healing Arts (“the Board”) released a comprehensive set of rules announcing the possible range of penalties for conduct offensive to the ethical rules governing practitioners of the healing arts.  In 2008, the Board issued the “Guidelines for the Imposition of Disciplinary Sanctions” (“Guidelines”). The Guidelines provide practitioners with the rationale the Board employed when devising the potential sanctions and is more than a set of rules and penalties for violating those rules. Thoroughly understanding the potential penalties for rules violations permits the licensee a sense of predictability and uniformity in applying the penalties but also affords the opportunity to propose lesser sanctions in an attempt to promote growth in the Healing Arts. Kansas professional licensing attorney Danielle Sanger has successfully utilized the Guidelines to advocate successfully for her clients.

The Board does not seek to impose the maximum sanction for every alleged ethical violation. The Board espouses a sanctioning philosophy designed to protect the public and the medical professions. Accordingly, the Board will sanction practitioners who run afoul of the ethical rules “with the least restrictive discipline necessary to meet the proper sanctioning goals.” Notwithstanding, the Board comprehends its primary goal is to protect the public and therefore will order sanctions to protect against immediate or irreparable harm. However, the Board may fashion a sanction that will rehabilitate the offender in the appropriate circumstance.

The Board enjoys wide discretion in fashioning sanctions for alleged misconduct. In fact, the Board reserves the right to impose any sanction within its discretion. The possible sanctions vary from no punishment at all to revocation of license. Included in the sanction continuum are alternatives such as censure, fines, suspension, limitations placed on the license, and denial of application or revocation. The Board imposes upon itself a mandate that when fashioning a sanction, the Board must consider the goals for sanctions. The goals included remediating the situation, protect the public from immediate harm from, or to punish.

In addition to the possible sanctions cited above, the Board has the authority to enter into a letter of agreement with the practitioner. The agreement may state a plan for the practitioner to correct any mistakes and to avoid future violations. The Board may also send the practitioner a letter informing the practitioner of the Board’s concern about present conduct in special circumstances to avoid non-conforming behavior becoming a future ethical violation.

The Board frequently imposes a term of probation on a license. A period of probation is a remedial sanction. In contrast, the Board describes fine and censure as purely punitive. With probation, the Board can impose restrictions upon the practitioner’s license such as attending and completing continuing educational courses, strict supervision by another practitioner, periodic medical record review, treatment for physical, emotional, or psychological conditions. The Board may also limit the types of services the offending practitioner may provide or the setting in which the practitioner provides their services.

The Board imposes the most severe sanctions in the appropriate circumstance. Revocation, denial of an application, or suspension achieve the goals for punishment but are imposed in situations when the practitioner is adjudged by the Board to no longer be fit to enjoy the privilege of practicing the healing arts or is purely incompetent. The primary aim of these sanctions is to remove the practitioner from the public to prevent future harm.

Kansas Professional Licensing Attorney Danielle Sanger devoted her career to helping medical practitioners and other professional licensees avoid the disastrous consequences of disciplinary action. Attorney Sanger is a devoted advocate who is keenly aware of the sacrifice one makes to obtain and keep a professional license. Call Attorney Sanger today at 785-979-4353 to arrange for your no-obligation consultation.