Hawaii has mixed record on sanctions for nurses, physicians

A decade ago a woman surrendered her nursing license in Wyoming to settle allegations that she altered a prescription to obtain a controlled substance for herself.

Based on the Wyoming settlement, the nursing boards in Idaho, Texas and California revoked her licenses there in 2010 and 2012. But Jill A. Johnson was able to keep her Hawaii license — even after local regulators learned that she failed to disclose the prior discipline within 30 days as required and on her license renewal applications, according to state documents.

It wasn’t until May — 10 years after the mainland sanctions started — that Hawaii’s board of nursing finally took action against the Big Island resident based on her failure to report what the other states had done.

The panel of seven nurses and two public members, though, was more lenient than the mainland regulators. Instead of revoking Johnson’s Hawaii license, which she first obtained in 1999, the board fined her $1,000 as part of an agreement to settle the case against her. She did not admit any wrongdoing.

“The delay (of sanctions) is entirely unacceptable,” said Cullen Hayashida, a gerontologist and former member of Hawaii’s medical board, which oversees physicians. “Who’s watching the coop?”

The extended time lag came even as regulators have made progress the past few years in imposing more timely sanctions on Hawaii-licensed nurses, physicians, dentists and other health-care professionals who are disciplined in other states.

It also came despite a 2016 state law that established a more streamlined way to impose what is known as reciprocal discipline — sanctions based on penalties levied in other states. Under the law, regulators can rely on the formal findings of another state to take disciplinary action rather than launch a separate investigation.

Legislators adopted the streamlining measure following a Honolulu Star-Advertiser investigation that found that Hawaii physicians were able to continue practicing for months or years after their licenses had been suspended or revoked elsewhere. In many cases, regulators acted — but not until years after the triggering discipline and long after other states where the practitioners also were licensed had responded.

The Hawaii delays were mostly due to a lack of resources, outdated computer databases and a state disciplinary process considered time-consuming and clunky, according to the newspaper’s findings.

Three years after the new law was enacted, the state Department of Commerce and Consumer Affairs, which regulates licensed health-care professionals, still has a mixed record in imposing timely discipline, particularly in cases in which the initial sanctions happened before the 2016 statute took effect.

The department says the new law doesn’t apply to those cases.

Administered by DCCA, Hawaii’s boards for health-care professionals typically handle only a small number of reciprocal discipline cases each year. But the cases can expose oversight gaps in a state where many practitioners hold licenses from multiple jurisdictions or where some providers have relocated after getting into trouble elsewhere.

“Sometimes bad actors look for small places like Hawaii to hide,” said Dr. Chris Flanders, executive director of the Hawaii Medical Association, an education and advocacy group for physicians.

In nine of the 19 physician and nurse cases decided since January 2018, the state’s sanctions came more than three years after the initial disciplines in other states, according to a Star-Advertiser review. In five of the cases, the time lag was more than five years. At a decade, the Johnson case had the longest interval.

The state boards took action usually because the practitioners failed to report mainland sanctions on a timely basis or failed to report them on license renewal applications. The applicants are asked whether their licenses have been fined, restricted, suspended or revoked within the past two or three years.

While regulators have been unable to use the 2016 law on older cases, they have tapped that statutory authority in more recent cases, and the results have been positive.

In seven of the 19 cases the newspaper reviewed, the physician and nursing boards levied penalties less than two years after their mainland counterparts acted, including three that were decided within seven months. One case took only four months, state records show.

In all seven cases, the boards cited the new law.

“It seems like things are moving in the right direction and that the system is working like we hoped it would,” Flanders said.

The 2016 law, which took effect in May of that year, only applies to cases in which the mainland sanctions were imposed after the law was enacted, according to DCCA.

The statute did not apply, for instance, to the Johnson case. She was sanctioned by Wyoming and the other states several years before the new law was on the books.

Even though Johnson was disciplined seven to 10 years ago, Hawaii regulators didn’t find out about those actions until 2018, underscoring a problem in which the state can go years without learning that a Hawaii- licensed practitioner was sanctioned elsewhere.

The problem is challenging because a national system generally is not in place to alert other jurisdictions of discipline, according to William Nhieu, a DCCA spokesman.

“Self-reporting by professionals appear to be the most uniform system for notifying a local board,” Nhieu wrote in response to Star-Advertiser questions.

The state also can learn about sanctions through national databases, anonymous tips, media reports and other sources, he added.

For nurses, DCCA participates in a national database called NURSYS that includes licensing and discipline information, according to the department.

Nhieu also said the date of the discipline in another jurisdiction rarely is the triggering event for enforcement action, saying the board needs proof that the action is final — not appealable — and must get a certified copy of the final order. The time between notification and getting the certified copy from the other jurisdiction can vary considerably, he added.

But consumer advocates say the fact that Hawaii regulators can take four years or more to dole out discipline is disconcerting from a patient safety perspective, particularly if the provider is practicing in the islands and has lost a license elsewhere for misconduct.

“The public expects licensing boards to check all of the boxes when they decide to license a professional, especially one whose hands people put their lives in,” said Lisa McGiffert, patient activist for the Patient Safety Action Network, a national advocacy organization. “There is an implicit trust in the granting of a license. Under the current law, these boards should be checking every new applicant and renewal regarding disciplinary actions in other states and not depending on the licensee to inform them.”

In the Johnson case, DCCA didn’t sanction her for the triggering prescription incident in Wyoming but for failure to report the resulting sanctions within 30 days and for failure to disclose the Idaho and California revocations when she applied to renew her Hawaii license in 2011 and 2013, according to the records.

The documents say Johnson contacted Hawaii regulators in 2006 to report the Wyoming board’s investigation and subsequently completed substance abuse treatment on the Big Island. She also enrolled in a peer assistance program for impaired nurses.

The settlement agreement said Johnson didn’t admit to violating any law or rule but acknowledged that DCCA had sufficient cause to pursue a disciplinary petition and agreed to the settlement as a compromise and to spare the expense of proceeding with an administrative hearing.

Asked why the board didn’t revoke Johnson’s license, as three other states did, Nhieu said discipline is decided on a case-by-case basis, including considering whether the conduct that triggered the initial discipline would warrant a serious sanction here, whether the licensee meaningfully challenged the charges in the other jurisdiction and whether aggravating or mitigating evidence was a factor.

In emails to the Star- Advertiser, Johnson traced her regulatory troubles to what she described as a failed monitoring agreement for the peer assistance program, which was canceled before she could complete it.

The person overseeing the program had recommended that Johnson surrender her Wyoming license “in lieu of discipline,” and Johnson took that to mean she was not being disciplined and therefore did not report the action when she applied to renew her Hawaii license, she wrote.

“The fine imposed on the settlement agreement was to acknowledge my failure in NOT reporting the 2009 disciplinary action from Wyoming and was not meant to be punitive in a way to punish or embarrass me for a mistake or offense that I was responsible for in 2006,” she added.

When DCCA uses the 2016 law, it informs the licensed practitioner that the board intends to take disciplinary action based on the sanction imposed elsewhere.

If the practitioner files a challenge within 20 days, a hearing is scheduled, and reasonable delays may occur to ensure due process, such as allowing the person time to hire an attorney, according to DCCA.

If the practitioner does not file a challenge by the deadline, the discipline automatically takes effect.

Because of that, Nhieu said, DCCA uses the law judiciously, such as when the out-of-state sanctions are serious or the underlying conduct is concerning.