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“Disciplinary Programs: Does Yours Measure Up?” Christine D. Niero, PhD, Professional Testing, Inc. Richard Bar, Esq., Galland, Kharasch, Greenberg, Fellman.

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Presentation on theme: "“Disciplinary Programs: Does Yours Measure Up?” Christine D. Niero, PhD, Professional Testing, Inc. Richard Bar, Esq., Galland, Kharasch, Greenberg, Fellman."— Presentation transcript:

1 “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 ConferenceAlexandria, Virginia Council on Licensure, Enforcement and Regulation Expect the Unexpected: Are We Clearly Prepared?

2 Presented at the 2006 CLEAR Annual Conference September 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

3 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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

4 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Survey of Certification Organizations—Benchmarking 37 Question Survey Disseminated to 879 Certification Boards 8% Response Rate (70 respondents)

5 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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

6 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Organizational Structure 97% of Certification Programs are Part of a Parent Non-profit 44% of Certification Programs are Separately Incorporated

7 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Reasons Certification Programs Were Established 75% Established to Raise Level of Professionalism 66% Establish Industry Standards 40% Consumer Protection

8 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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)

9 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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

10 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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

11 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Length Discipline Program has been in Existence 47% Since Inception 33% More Than Last 10 Years 19% Less Than 5 Years

12 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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

13 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Actionable Offenses 85% Falsification of Application 80% Violation of Code 51% Criminal Charges 46% Felony Convictions 31% Poor Services/Products

14 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Actionable Offenses 28% Violation of Other’s Codes 21% Misdemeanors

15 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Reference and Guidance Documents NCCA Accreditation Standards ISO/IEC 17024 (ANSI) Accreditation Standards 35% of responding organizations are accredited

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

17 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia NCCA Accreditation Standards 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

18 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia NCCA Accreditation Standards Standard 9—Responsibilities to Stakeholders Maintain a list and provide verification of certified individuals Addresses “good standing” while safeguarding confidentiality

19 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia ISO/IEC 17024 4.1 Certification body 4.1.2—The certification body defines policies and procedures for … suspending or withdrawing the certification

20 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia ISO/IEC 17024 4.2 Organizational Structure 4.2.1 c)—The certification body shall have overall responsibility for formulating policies regarding … decisions on certification and the implementation of policies and procedures

21 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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

22 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia ISO/IEC 17024 4.7—Confidentiality Through legally enforceable commitments keep confidential all information … and release information required by law with the requirement of informing individuals concerned

23 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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

24 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Typical Codes/Standards Abide by Laws Conduct business in a professional manner Respect the confidentiality of client information

25 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Typical Codes/Standards Perform services in a competent manner Be truthful and honest in the performance of the job Do not discriminate

26 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Typical Codes/Standards Promote professional integrity Abide by industry accepted practice norms Advance the body of knowledge

27 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Typical Codes/Standards Use logos and credentials in accordance with organization’s policies Affirm behaviors and practices consistent with Code of Conduct and Standards of Practice

28 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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)

29 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Developing Fair Disciplinary Programs 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

30 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Developing Fair Disciplinary Programs 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

31 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Developing Fair Disciplinary Programs 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

32 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Developing Fair Disciplinary Programs 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)

33 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Codes of Conduct 86% Have a Code 81% Enforce it

34 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Frequency of Code Review 65% As Needed 30% Every 1 – 3 Years 6% Every 4 - 6 Years

35 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Developing Fair Disciplinary Programs 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

36 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Developing Fair Disciplinary Programs 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

37 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Receipt of Complaints 86% In Writing of Any Kind 25% Written Complaint Form 19% By Phone

38 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Sharing Information with All Involved Parties 64% No 36% Yes

39 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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

40 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Checks & Balances: Role & Authority Review findings and recommendations of Investigators Recommend sanctions, corrective action, further action, dismissal of case Formally communicate outcome to the governing board

41 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Checks & Balances: Role & Authority 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

42 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Checks & Balances: Role & Authority 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

43 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Authority to Implement the Disciplinary Program 46% Board of Directors 48% Committee 26% Staff 11% Other

44 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Initial Review of Complaints 86% Staff

45 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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

46 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Conducting Investigations Prompt and competent investigation All decisions must be “ legally defensible ” Requirements for Investigators Impartiality No conflict of interest Expertise Ability Time

47 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Conducting Investigations Volunteer Committees Confidentiality Conflict of Interest Subject Matter Experts Clearly Defined Objective

48 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Frequency of Disciplinary Matters Review 76% As Needed 8% Quarterly 10% Semi-Annually 8% Annually

49 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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

50 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Conducting Investigations Duty of Confidentiality Facts must remain confidential Confidentiality agreements for team Court orders or valid subpoenas Repercussions of a breach of confidentiality

51 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Conducting Investigations Documentation/Independent Evidence Documentation/records Written consent for medical records Affidavits Prior court and arrest records

52 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Conducting Investigations 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

53 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Training of Personnel 86% No Formal Training 14% Conduct Formal Training 67% Who Conduct Training, Do So Annually

54 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Process Complaints if Certification has Expired 72% No 28% Yes

55 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Involvement of Legal Counsel 27% No Involvement 27% After Initial Determination 29% Reviewing Decision

56 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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

57 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Ensuring Due Process Why is due process required? Fairness to all Certification may have economic value May be viewed as a property right Risk of lawsuit

58 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Ensuring Due Process 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

59 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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 case Moderate Duty – Certification provides economic or professional advantages Third party payor preferences Highest Duty – Required to participate in the profession Certification required for state licensure When certification is an economic necessity A property right

60 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Ensuring Due Process 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

61 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Ensuring Due Process Creating Due Process Appeal right Be fair Procedures do not have to adhere to court-like standard Follow Certification Board’s Rules and Procedures

62 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Ensuring Due Process 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

63 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Timelines—Mandatory or Guidelines 61% Guidelines 39% Mandatory

64 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Due Process 83% Right to a Hearing 95% Appeal Process

65 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Hearing/Appeals Recording and Transcription 56% No 44% Yes

66 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Actionable Offenses 85% Falsification of Application 80% Violation of Code 51% Criminal Charges 46% Felony Convictions 31% Poor Services/Products

67 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Benchmarking Data Actionable Offenses 28% Violation of Other’s Codes 21% Misdemeanors

68 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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

69 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Best Practices of Certification Boards Measures to maintain best practices Create comprehensive procedures for credentialing Maintain confidentiality of all cases Once certification is revoked or suspended, take efforts so that Certificant stops using credential

70 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Best Practices of Certification Boards Measures to maintain best practices Avoid arbitrary and capricious decisions Avoid taking action without sufficient evidence Avoid revoking certification for a person indicted, but not convicted in court

71 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Best Practices of Certification Boards Measures to maintain best practices Conduct proper investigations Give proper notice or an opportunity to be heard

72 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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).

73 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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).

74 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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).

75 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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).

76 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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).

77 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Best Practices Avoid Acting Too Early If 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 Procedures Ensure that Certification Board’s rules and procedures hold up to due process analysis

78 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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

79 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia 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”

80 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Questions and Discussion Thank you!

81 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Speaker Contact Information Speaker Name: Christine D. Niero, PhD Organization: Professional Testing, Inc. Phone: 703-430-1322 E-mail: cniero@proftesting.com Website: www.proftesting.com Survey results: Industry Links, Articles, (bottom left)

82 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Speaker Contact Information Speaker Name: Scott Williamson, CAE, MBA Organization: The American Board for Certification in Orthotics and Prosthetics Phone: 703-836-7114 Fax: 703-836-0838 E-mail: swilliamson@abcop.org Website: www.abcop.org

83 Presented at the 2006 CLEAR Annual Conference September 14-16 Alexandria, Virginia Speaker Contact Information Speaker Name: Richard Bar, Esq. Organization: Galland, Kharasch, Greenberg, Fellman & Swirsky, PC Phone: 202-342-6787 Fax: 202-342-5219 E-mail: rbar@gkglaw.com Website: www.gkglaw.com


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