New rules for regulating residents?
A call for tighter oversight of housestaff has some educators worried
From the October 1998 ACP-ASIM Observer, copyright © 1998 by the American College of Physicians-American Society of Internal Medicine.
By Jodi Knapp
Among medical educators, the name Joseph Michael Swango, MD, is famous for all the wrong reasons. Between 1984 and 1993, when he trained as a resident, Dr. Swango allegedly poisoned numerous coworkers and killed dozens of patients. He was dismissed from more than one training program and served time for poisoning five of his colleagues in an Ohio hospital, but he managed to continue his training by moving to different states and allegedly lying about his record.
Today, Dr. Swango is awaiting trial for his actions, but his legacy may soon affect residents and training programs across the country. In what many believe was a direct reaction to Dr. Swango's exploits, the Federation of State Medical Boards (FSMB) developed recommendations that called on state medical boards to get more involved in regulating postgraduate training programs.
Chief among the recommendations, which medical boards do not have to implement, residents would have to register for a special permit to practice from their local state medical board. Residents would have to renew the permit each year, and only after completing three years of training would they qualify for unrestricted licensure.
The Federation's recommendations would also require program directors to report all disciplinary problems and adverse actions of their residents to the local state licensing board. Even if the problem was resolved—the resident successfully completed a probationary period, for example—the program director would still have to report the incident to the local medical board.
According to James R. Winn, MD, executive vice president of the Federation, the recommendations resulted in part from reports that over the past four years, residency programs have cited more than 500 residents as experiencing serious performance, behavioral or even criminal problems during their postgraduate training. The Federation believes its recommendations will allow state boards to better track problem residents by giving boards more power to regulate the housestaff.
Although current data from the Federation shows that about 50 of the 63 state boards reporting to the FSMB already restrict resident licensure or issue some sort of permit, states such as Alabama and Arkansas have no formal licensing process in place for residents whatsoever. Other states, such as California and Louisiana, require full licensure after only two years of training, and many states require program directors to report only formal complaints against residents.
The Federation published its recommendations in 1996, and according to Dr. Winn, a number of state boards are now preparing to incorporate changes that reflect the recommendations. At least two states—Massachusetts and Texas—are planning to change their regulations as soon as next year.
However, a work group for the AMA's Council on Medical Education is currently looking at other options outside of the Federation's recommendations, which, according to critics, have many pitfalls. The work group is expected to report back to the Council this December.
Some medical educators fear that the Federation's recommendations will taint the training environment, create unreasonable reporting requirements for program directors and prevent residents from moonlighting. These critics are concerned that the recommendations go too far, pointing out that the Swango case is an anomaly.
"This is an uncommon problem for which a draconian solution is being purposed," noted Henry J. Schultz, FACP, president of the Association of Program Directors in Internal Medicine. "Philosophically, this represents a big change in the current distinction between medical education and the practice of medicine."
But the Federation views its primary job as protecting patients, not preserving the current system of training. "While we are sympathetic to residents and program directors, our main focus is to protect the public," Dr. Winn said. "Our data shows that the public isn't being adequately protected with our current system."
State by state
To do a better job of protecting patients, the Federation recommendations would require states to conduct a full background investigation before issuing permits to any trainees. The recommendations also say that program directors should report a range of details about their residents, from disciplinary actions to substance abuse problems to leaves of absence, to state licensing boards. (See "An in-depth look at the Federation's recommendations".)
In Texas, for example, officials are planning to require individual residents to get a permit through the state's licensing board. Under current law, programs apply for a group institutional permit for all their residents. State officials are still deciding exactly what information program directors will be required to report, but Bruce A. Levy, MD, JD, director of the Texas State Board of Medical Examiners, said that residents who undergo counseling or disciplinary actions related to drug, alcohol or patient abuse will probably come directly under the jurisdiction of the state board.
And in Massachusetts, officials are planning to change licensure eligibility for their United States medical graduates. Under current law, these residents are eligible for full licensure after one year of training. Under the proposed regulations, these residents would have to complete two years of training to become eligible for full licensure. (The law requiring international medical graduates to complete three years to become eligible for full licensure is not scheduled to be changed.)
In addition, while many academic programs in Massachusetts already require residents to pass step 1 of the United States Medical Licensing Examination before entering a program and step 2 within the first year, the state does not. New regulations, however, will require that American students pass step 2 before renewing their permit for a second year. (The law requiring that international graduates pass both steps 1 and 2 of the exam before entering postgraduate training will not change.)
What probably won't change is Massachusetts' reporting requirement. Currently, program directors must report any disciplinary actions taken against residents, but they don't have to file a report if there are no formal complaints. That policy will remain under new law.
As state boards prepare to implement these changes, educators are concerned that training programs will be hurt in a number of ways. Some are worried that the reports will require excessive amounts of
paperwork, while others fear that some residents won't be able to get a permit in time to start working at their training program. But the overriding concern is that the Federation's recommendations will affect instructors' abilities to evaluate residents and provide feedback.
"Residents are still in training," said Lynne M. Kirk, FACP, associate dean for graduate medical education at the University of Texas Southwestern Medical School. "They are not fully practicing physicians, and there should be significant flexibility and oversight by their training program. This intervenes in that."
Dr. Schultz said that the idea of taking disciplinary actions against residents is "not consonant with an educational center, in which everyone by definition is not yet a complete physician and is working under supervision." He also noted that the Federation's proposals will track and regulate residents more thoroughly than states track licensed physicians, who practice with no supervision.
Federation officials like Dr. Winn, however, argue that state licensing boards need to get more involved in tracking residents because program directors lose oversight on residents as they obtain more autonomy during each year of training under the current system. "A fourth-year resident is basically practicing medicine and teaching other residents how to practice medicine within the confines of the academic institution, but they are still rendering care to patients in an unsupervised situation," Dr. Winn said.
In addition, program directors are worried about the Federation's recommendation that failure to comply would be grounds for disciplinary action, as decided by individual medical boards, against the program director. According to Harold J. Fallon, MACP, Past Chair of the ACP-ASIM Board of Regents and associate dean of graduate medical education at the University of Alabama School of Medicine, "It is the individual resident who must be responsible for reporting fraudulent information, not the program director."
Some critics add that residents would be doubly afraid to come forward with problems if there is a possibility the information will end up in the hands of the state boards. They predict that some directors might opt not to discipline residents in an effort to keep such information private and instead try to address problems some other way. "These recommendations might prompt some program directors to let the resident through because they don't want to have to report to the state board," said Andrew M. Thomas, ACP-ASIM Associate and a member of the AMA's Board of Trustees.
But proponents of the recommendations note that unless program directors are held directly responsible, problem residents will continue to fall through the cracks. Dr. Winn noted that program directors often simply fire residents or encourage problem housestaff to leave a program without reporting any problems, allowing them to bounce to another program, as was allegedly the case with Dr. Swango.
In addition, Dr. Winn said he has heard of directors who neglect to report an errant resident to the state boards because they are afraid that the resident will claim he was singled out and sue. The Federation's recommendations address these types of problems by requiring program directors to report on every single resident or risk disciplinary action, he added.
For residents who depend on the additional cash that moonlighting provides, the Federation's three-year requirement would have a huge impact. A three-year permit giving residents only partial licensure would effectively eliminate their ability to moonlight until after their third year. Educators say that this could hurt not only residents' finances, but also hospitals and other facilities that rely on residents for low-cost care.
Because of this consideration, Massachusetts is considering allowing residents to apply for full licensure after two years instead of three. Alexander F. Fleming, JD, executive director of the Massachusetts Board of Registration in Medicine, said that while residents should complete more than one year of training before being allowed to apply for full licensure, making them wait three years is excessive. "These people aren't being paid much," he said, "and there could be some interest to have qualified people moonlight as long as the hours are being regulated by the program," which is the practice in Massachusetts.
But, for some, there is a positive side to requiring residents to wait for full licensure. Dr. Thomas, the AMA's resident trustee, said that some states, such as New York, currently require residents to get full licensure at the end of their first year of postgraduate training whether they want to or not. Licensure in New York costs $735, Dr. Thomas said, which can present an undue financial burden for residents who aren't ready to start moonlighting.
For now, Texas and Massachusetts are working on new systems, and officials expect to release the new rules to the public for final comment this fall. They say they want to hear not only from the public, but from the medical profession.
"Every concern we have heard we have taken to heart," said Dr. Levy, director of the Texas board of medical examiners. "We want a system that doesn't overly burden program directors so they can get their residents on time and get them into a system that has an adequate supply of doctors. This isn't meant to interfere with that progression or harm it in any way. But we must protect the public."
Critics, however, remain wary. "Bad doctors don't appear very often," said Dr. Kirk from University of Texas Southwestern Medical School. "But someone who is a sociopath or a bad person is going to get around the rules no matter what the rules are."
Jodi Knapp is a freelance writer and editor in Exton, Pa.
An in-depth look at the Federation's recommendations
To keep closer tabs on residents, the Federation of State Medical Boards has recommended that state medical boards make a number of changes.
The Federation recommends that the following requirements be established for residents applying for a "Resident Physician Permit":
- Submission of a signed application approved by the state medical board;
- Documentation verifying that the applicant has graduated from an accredited medical school recognized by the medical board;
- Certification by the Educational Commission for Foreign Medical Graduates, if the applicant is a graduate of a foreign medical school and has completed the examination requirements for such certification within the preceding seven years;
- A passing score on Steps 1 and 2 of the United States Medical Licensing Examination or Part 1 and 2 of the certifying examination administered by the National Board of Osteopathic Medical Examiners within the preceding seven years;
- Enrollment in a residency program recognized by the medical board;
- Verification that a background investigation, including the acquisition of a photograph of the applicant certified by the dean of the medical school, was conducted and that the results proved satisfactory; and
- Payment of an application fee.
The Federation's recommendations would also require that at the end of each training year directors provide written information to the state boards on:
- Whether any disciplinary actions were taken against a resident;
- Whether a resident had failed to advance or had his practice placed on restriction;
- Whether a resident had been dismissed or resigned from the residency and reasons therefor;
- Whether a resident had been referred to a substance abuse program unless enrolled in an impaired physician program approved by the board; and
- Whether a resident had left the program for any reason for a period of two weeks or longer and why.
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