First, do no harm

Two Vermont licensing boards may soon require doctors and nurses to undergo criminal background checks before they can practice medicine here. The move would strengthen a system that some advocates say allows unfit candidates to skirt detection.

The Vermont Board of Nursing and Board of Medical Practice now rely on discipline-tracking databases and self-disclosure, a level of trust placing the two in a shrinking minority. And while they support a tightened process, some hurdles remain.

“My concern is always finding out something after the fact,” said Dr. Harvey Reich, a Rutland-based ICU physician and member of the medical board, which licenses doctors.

Reich asked his colleagues to re-examine the process after a close call outside of his work on the board where someone was nearly hired with “significant issues that we wouldn’t have known about.”

Only 15 of the 70 state medical boards in the U.S. don’t fingerprint background check doctors at the licensing stage, according to the public advocacy group Federation of State Medical Boards. And the Council of State Governments reports Vermont was one of nine states in 2013 to not background nurses. 

Instead, candidates must disclose past criminal convictions on their applications. Lying on these amounts to felony perjury, which carries a punishment of up to 15 years in prison. But discipline records show some take their chances.

A New Hampshire woman received her license from the Vt. Board of Nursing in February 2015, eight years after she was convicted of a felony for forging prescriptions and diverting more than 800 Percocet tablets – a crime her application omitted.

The woman’s N.H. license was later suspended after she again allegedly falsified records and diverted pain medication meant for nursing home patients. In its emergency order, the N.H. nursing board said the woman was searching for a job in Vermont.

Doctors aren’t always honest on their applications either. Records show one man lied about being under investigation two weeks after federal agents searched his home. He later pleaded guilty to a federal drug charge.

David Herlihy, the medical board’s executive director, couldn’t think of a case where a background check on a doctor would have found an undisclosed conviction, but the scenario has played out in other states.

A 2014 report from the Maryland inspector general found at least three cases where doctors lied about previous convictions. In one case, a man received his license almost a decade after he was convicted of raping a woman at gunpoint – a crime he described on his application as a drunken fight, according to the Baltimore Sun. Maryland state health officials didn’t know the extent of his criminal past until two women shared new allegations.

The move toward background checks comes amid a broader push to expedite licensing around the country. More than 20 states now participate in the Interstate Medical Licensing Compact, an information-sharing agreement that offers physicians a quicker path to multi-state licensure.

Since members rely on another board’s vetting process, the compact requires a fingerprint background check. The Vermont legislature authorized the state board to join the compact, but Herlihy said lawmakers need to pass additional language before his entity can use the national criminal database.

The nursing board hopes to join a similar compact and already has authority to perform criminal background checks, said Lauren Hibbert, director of the Vt. Secretary of State’s Office of Professional Regulation, which oversees the nursing board. The board plans to share a report on the compact with the legislature next January.

But the compact is voluntary, so doctors and nurses can still choose to apply through the regular system.

After the legislature adds the technical language, the medical board still needs to vote on an official policy position. Then, Herlihy said, the board must tell him to “flip the switch.”

For Hibbert and the nursing board, it’s a bit more complicated. She said they’ve explored backgrounding applicants several times but has run into a key barrier: the Vermont Criminal Information Center.

“What we have learned is that VCIC is pretty close to capacity right now,” Hibbert said, citing its increased workload in light of a recent law impacting childcare employees.

Hibbert noted the nursing board brings a high burden, issuing just over 2,000 licenses in 2017. She said her office has even tossed around the idea of helping pay for another full-time position at the VCIC.

Jeffrey Wallin, VCIC’s director, acknowledged he looks at his resources any time the center takes on a large volume, because every fingerprint-supported check requires some human interaction. Two full-time staffers processed about 18,000 checks last year alone.

But he said the nursing board needs to account for how a change would impact the system holistically, not just at VCIC. He said he’s had informal discussions with Hibbert’s office but believes it’s up to them to hash out further details.

“We’re not currently doing those checks, and we’re not completely gearing up to do so,” he said. “If it’s something they want to do … then we need to keep advancing those discussions.”

Hibbert said the board is still working through some issues, like how the increased costs will impact the licensee; a fingerprint exam start to finish can cost about $40. She’s also considering how background checks will affect their turnaround times, with some applications now processed in as little as 45 minutes.

“It’s really not an overnight process,” she said of the change. “We are trying to be respectful of VCIC and also get what we need out of them.”

Bolstering background checks directly contrasts a counter-movement gaining traction in some cities and states, including Vermont, known as “ban the box.”

Advocates here helped pass a state law prohibiting most employers from requesting criminal history on employment applications, though they can still ask in later stages of the hiring process.

The law doesn’t apply to licensing boards, but it raises an important question after the recent decade’s attention to criminal justice reform: How significant are past crimes when it comes to practicing medicine?

Supporters of background checks say doctors and nurses should be held to a higher standard given their often-unfettered access to patients in vulnerable positions and their constant access to highly-addictive medication.

Boards should also know about crimes that don’t directly relate to medicine because they speak to someone’s character, said Lisa Robin, chief advocacy officer for the FSMB.

“As a consumer or a patient, you’re trusting that the medical board has adequately vetted this person,” Robin said.

Still, some wonder whether the policy changes will have much of an impact.

Jessa Barnard, executive director of physician advocacy group Vermont Medical Society, said doctors already undergo criminal background checks during entrance to medical school or residency programs.

Those checks usually come early in a career, however, and most health professionals go on to work in the field for decades. And while major health care employers already background check both doctors and nurses, the same protections aren’t in place at private practices.

Barnard’s organization hasn’t discussed the policy with the medical board, nor has it taken an official position. She’s not initially opposed to the idea, but said it warrants further conversation.

“My questions would be more logistics,” she said. “How it happens [and] what the expenses might be.”

Nearly everyone interviewed for this story stressed a conviction wouldn’t automatically disqualify a candidate, and discipline records indeed show cases where doctors and nurses have shown proof of rehabilitation, whether through substance programs or references from past employers. Other issues might warrant license conditions to ensure the transgressions are truly in the past.

Both Herlihy and Hibbert said the checks would only extend to the initial license for now, with biannual renewal applications still processed under the current system. That means doctors and nurses will still be asked to report any subsequent convictions.

That isn’t a foolproof method either. Still, advocates say background checks are most useful for out-of-state applicants, whose arrests and convictions are less likely to make their way from law enforcement to the licensing boards.

A snapshot from 2016 showed two-thirds of the state’s nearly 2,200 physicians attended medical school or residency training out-of-state, with the many others presumably moving to Vermont after earning their license elsewhere.

That’s why Reich, the Rutland doctor, worries Vermont could become a haven for those with an unsavory past if it doesn’t change.

“I didn’t realize how many states have actually already done this,” he said. “We are one of the outliers.”

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