In recent years, the American Board of Neurological Surgery has received increasing numbers of notices about disciplinary cases. The number of cases reviewed by the Credentials Committee at each meeting in the last five years has at least doubled. This is largely due to State licensing boards and other enforcement agencies’ use of improved processes for disseminating accurate, timely information regarding Diplomates with problems, particularly actions taken against medical licenses.
As the number of Diplomates potentially subject to sanctions has increased, the ABNS has had to develop guidelines to ensure consistency. This document was prepared by the Credentials Committee and its counsel and approved by the full Board of Directors in May 2006.
I. Limitation on Applicability
Although in most cases the outcome of an ABNS disciplinary action will track the guidance found in this document, fairness and due process require (and ABNS Rules and Regulations mandate) that each case be evaluated on its own merits. Every case is different and involves its own unique set of circumstances. Consequently, this document sets forth general guidelines only, and in certain cases deviation from the guidelines will be appropriate.
Before action against a Certificate is taken, the Diplomate is entitled to a hearing, which may reveal additional aggravating or mitigating factors that justify a departure from the guidelines. Any Diplomate for whom a hearing has been scheduled to consider revocation or suspension of Certification is offered the opportunity to return the Certificate in lieu of a hearing.
II. Options for Discipline
General Guidance: To date, the ABNS typically has adopted one of the following measures in cases it has reviewed:
- Probation of Certificate
- Revocation of Certificate
- Suspension of Certificate
- Letter of Concern/Reprimand
- Requests for Additional Information
- No action
With one addition, discussed below, these will continue to be the typical range of options for the Board.
Additional Sanction - Required Participation in Maintenance of Certification: ABNS Rules also give the Board the authority to impose other measures, such as placing conditions on maintaining one’s Certification. For Diplomates whose Certificates are non-time-limited, the ABNS has the additional option of requiring participation in Maintenance of Certification (MOC) in the context of a disciplinary action. This essentially converts non-time-limited Certificates into time-limited Certificates. The Board will typically require participation in MOC when a Diplomate’s non-time-limited Certificate has been suspended and later reinstated. Also, it may require participation in MOC in situations that do not rise to the level where suspension or revocation is warranted but the Board has ongoing concerns about a Diplomate’s practice.
III. Revocation or Suspension of State License – Practice Related
General Guidance: In cases where a Diplomate’s state medical license has been revoked or suspended for practice-related reasons, the ABNS will typically take the same action against the Certificate. In other words, if a Diplomate’s license has been revoked, the ABNS usually will revoke Certification. If the license has been suspended, the ABNS will suspend Certification co-terminus with licensure suspension.
In deciding what action to take, the Board will focus on the substance of the state action, rather than the state’s characterization since different states use different phrases to describe their actions. For the purpose of these guidelines, “revocation” means that the Diplomate may no longer practice clinical medicine in the state either permanently or indefinitely. “Suspension” means that the Diplomate may not practice for some period of time and/or until the Diplomate has complied with certain conditions. Voluntary or involuntary surrender of a license is equivalent to "revocation".
"Practice-related" means that the state" licensure action is based on conduct related to the Diplomate" professional practice. This includes but is not limited to curtailment of hospital privileges, inability to practice safely due to physical or mental disability or substance abuse, inappropriate prescribing of medications, incompetence, insurance or billing fraud, medical record documentation issues, misinformation on licensure, credentialing, or certification applications, negligence, providing false or inappropriate expert witness testimony, and/or unprofessional conduct.
Revocation of a Certificate is permanent. Although former Diplomates whose Certificates have been revoked may petition the ABNS to become certified again, those petitions rarely will be approved and if so, only at the sole discretion of the Board. Approval typically will be granted only in cases where the Board concludes that:
- In retrospect lifetime revocation has proved to be disproportionate to the Diplomate’s offense, and
- The Diplomate has taken steps to maintain or substantially improve the level of his or her knowledge and skills.
In those cases where the ABNS grants a former Diplomate’s petition, the Diplomate will not become certified until he or she has again successfully passed both the Primary and Oral Examinations. The Board also will require the submission and approval of practice data and other conditions as appropriate in the individual case. All Certificates newly issued to former Diplomates will be time-limited, regardless of the type of Certificate previously held.
Suspension of a Certificate means that during the period of suspension an individual may not hold him or herself out to the public (patients, providers, and/or insurers, etc.) as certified by the ABNS. A Diplomate violating this prohibition shall be subject to additional sanctions. Depending on the degree of the individual’s culpability, these will typically mean an extension of the period of suspension or revocation of the Certificate. Suspension typically will remain in effect for the period of suspension of the Diplomate’s state license.
When a license is fully restored, the Diplomate may apply for reinstatement of Certification. Such applications typically will be approved; however, the ABNS may deny an application or impose conditions on approval where appropriate, for instance when the length of the suspension raises concerns about the individual’s current knowledge and skills. Also, the Board will require the Diplomate to participate in MOC once the Certificate has been reinstated, even though he or she originally held a non-time-limited Certificate.
Appeals of State Action: When a Diplomate is appealing revocation or suspension of his or her license, the ABNS decision to act will typically depend on the status of the license during the appeal. Notwithstanding, the Board will not allow a Diplomate to stall its action simply by appealing state licensure decisions, particularly since such appeals can take several years to resolve. In cases where the license revocation or suspension is stayed during the time of an appeal (typically indicating that a court or panel has found some preliminary merit to the Diplomate’s challenge), the ABNS will usually not pursue disciplinary action until the appeal is complete or the stay been lifted. Diplomates must keep the Board apprised of all significant developments in litigation.
Exception to General Guidance – Diplomate Retirement: In some cases, a Diplomate may have retired either prior to or in connection with a state action against his or her license. In those situations, the ABNS will generally give the Diplomate the option of retaining his or her Certificate (thus avoiding a hearing) so long as the Diplomate signs a form certifying that he or she is permanently retired from the practice of neurosurgery and agrees to other conditions imposed. This option typically will be offered in cases involving Diplomates who:
- Are 60 years of age or older,
- Have a physical or mental disability that appears to make it impossible to continue the practice of clinical neurosurgery; and
- Offer facts based on material in the Board’s possession suggest that the individual has likely retired.
Diplomates who accept will be listed by the Board as “Certified – Retired”. The option may not be offered in cases where the misconduct of the retiring Diplomate appears to have been willful and/or egregious.
Actions in States Where Diplomates No Longer Practice: Many Diplomates carry licenses in multiple states, including some where they no longer practice. A Diplomate may have active and unrestricted licenses in all states where he or she practices, while licenses in other states may have been revoked or suspended for practice-related issues. This occurs, for example, when a Diplomate leaves a state where he or she got into trouble in order to get a fresh start elsewhere. It also may be the result of the Diplomate practicing in a state that has more lax enforcement standards than a state where he or she maintains a license but does not actively practice.
In general, the Board will track the actions of the state(s) where the Diplomate actively practices. Thus, so long as current, active, unrestricted licenses are maintained in each state where he or she actively practices, the ABNS typically will not suspend or revoke Certification. The Board reasons that the state where the Diplomate actively practices has primary responsibility for monitoring conduct. To the extent that all of the Diplomate’s active license states have determined that history and conduct support a full, unrestricted license, the ABNS will generally defer to the decisions of those states. None the less, the ABNS may deviate when, for example, a Diplomate appears to have been in trouble in several states over the years and continuously changed locations in order to avoid sanction. Those situations are becoming less common as states become better at tracking and following the actions of other states.
IV. Revocation or Suspension of State License – Non-Practice Related
General Guidance: Where a Diplomate’s state medical license has been revoked or suspended for non-practice related issues, the ABNS will typically send a letter of reprimand or concern, or take no action. Non-practice related issues are unrelated to a Diplomate’s practice as a physician, for example failure to pay taxes or renewal or related fines, and criminal convictions unrelated to the practice of medicine.
Although the Board typically will not suspend or revoke a Certificate for non-practice related issues, a Diplomate subject to MOC who has his or her license suspended or revoked for non-practice related issues by a state where he or she actively practices will not be able to successfully complete the MOC cycle. Consequently, his or her Certificate will not be renewed at the end of the cycle.
V. Other State License Actions - Probation, Monitoring, Reprimand, and Censure
General Guidance: States often take actions against licenses that are less severe than revocation or suspension. Such actions include but are not limited to probation, monitoring, reprimand, and censure. In those cases, the ABNS will typically send a letter of reprimand or concern, or take no action.
Exceptions include but are not limited to situations were the state-imposed monitoring or probation conditions are so significant as to constitute a substantial restriction on the Diplomate’s practice of neurosurgery. In those instances, the ABNS may consider suspension of Certification, which will typically be co-terminus with the period of probation or monitoring. When the Diplomate has a non-time-limited Certificate and the state monitoring or probation is the result of concerns relating to clinical competence, the Board may also require the individual to participate in MOC after the probation or monitoring period ends.
Although the ABNS typically will not suspend or revoke a Certificate in cases involving these lesser sanctions, a Diplomate subject to MOC who becomes subject to probation or monitoring in a state where he or she actively practices will not be able to successfully complete the MOC cycle. Once again, his or her Certificate will not be renewed at the end of the cycle.
VI. Disciplinary Measures Not Based on State Licensure
ABNS rules permit but do not require the Board to take disciplinary action in cases that are based on actions other than restrictions on a Diplomate’s license. Such other grounds include but are not limited to violation of ABNS Rules and Regulations, exclusion from Medicare or Medicaid, expulsion from an ABNS Nominating Society; and serious professional misconduct.
General Guidance: These cases tend to be rare and also distinct from one another. Even the most general of guidelines have limited use.
For cases involving professional misconduct, the ABNS will tend to track the actions of state licensing boards since it does not have the resources to investigate and pursue every allegation of professional misconduct and instance of discipline by a hospital, managed care panel, or other third party. In cases where an allegation has risen to the level where a state takes action, the ABNS will typically also take action pursuant to the guidelines above. By contrast, in cases where the alleged misconduct has not risen to that level, the ABNS will defer to the state and either send a letter of concern or reprimand, or take no action.
The same reasoning applies to situations when a Diplomate has been excluded from a Nominating Society. Again, if the misconduct rises to the level where a licensing board has taken action, the ABNS will track the action. When the misconduct does not cause a state board to take action, the ABNS will send a letter of concern or reprimand, or take no action. For example, the ABNS typically will not suspend or revoke the Certificate of a Diplomate expelled from a professional society for giving inappropriate expert witness testimony unless a state medical board takes action against the Diplomate’s license.
Where a Diplomate has been excluded from participation in Medicare and Medicaid or his or her DEA license been suspended or revoked, a state almost always will take corresponding action against the medical license. In those cases, the ABNS again will track the state’s action. In rare case where there is no corresponding state action, the ABNS will track the Medicare/Medicaid/DEA action. For example, if a Diplomate is excluded from Medicare/Medicaid for a specified period of time, the Diplomate’s Certificate typically will be suspended for a co-terminus period of exclusion. If a Diplomate has been excluded from Medicare/Medicaid permanently or indefinitely, the Certificate will be revoked.
Where a Diplomate or candidate for Certification has violated ABNS rules, the discipline will depend on the seriousness of the violation. The most serious infractions include but are no limited to intentionally compromising the integrity of ABNS examinations (for instance reproducing and/or disseminating questions), knowingly providing misinformation on an application for certification or MOC, and failing to comply with the terms of a disciplinary measure imposed by the Board (for example, continuing to advertise oneself ABNS Certified during a period of suspension). In those situations, the Board will typically suspend or revoke a Certificate. In the case of a candidate who is not yet certified, he or she will be prohibited from becoming certified for either some period of time or permanently. Lesser infractions include but are not limited to unintentional non-material misinformation on an application form, failure to notify the Board of changes of address, and failure to respond to requests for routine information. These may result in a letter of concern/warning or no action, unless the violations are repeated.
This guidance does not apply to candidates or Diplomates who miss ABNS deadlines or fail to meet the substantive requirements for initial Certification or MOC. Those situations, which are not considered Rules violations, are addressed in the ABNS Rules and Regulations. Normally, candidates or Diplomates who miss deadlines or fail to meet requirements will be ineligible for Certification or MOC unless they have obtained an exemption or exception to the deadlines or requirements.
The ABNS has not always rigorously enforced breaches of examination integrity. This is partly due to the fact that at one time it was relatively common practice for residency Program Directors to collect and disseminate examination questions, plus candidates and Program Directors historically may not have been aware that the practice was prohibited. Now, however, every candidate and Program Director should be on notice regarding this prohibition. It is clearly set forth in the ABNS Rules (Sections 5.7, 11.3) and has been communicated repeatedly to both candidates and Program Directors. It is also set forth in the pledges that candidates sign before the Primary and Oral Examination. Consequently, on a go forward basis, the Board intends vigorously to enforce violations of examination integrity. As noted, the reproduction, dissemination, or use of questions could result in a candidate forfeiting the ability to become certified. The Board also reserves the right to take appropriate action against residency programs and/or Program Directors.