Health Policy and Medical Professional Prosecutions

Host:

From LawHub, this is I Am The Law, a podcast where we talk with lawyers about their jobs to shed light on how they fit into the larger legal ecosystem. In this episode, Debby Merritt interviews a state government lawyer charged with protecting public health.

Johanna Barde:

Anything I say today is my own personal opinion, and I'm not speaking at this time on behalf of the Tennessee Department of Health or the governor or anyone else.

Debby Merritt:

I understand that as a representative of the state, you wear two different hats that on the one hand you advise state health boards on legal matters, but then second, you also prosecute healthcare professionals who violate the rules of professional conduct issued by State Health Board. Before we talk more about your work, let's talk about the Department of Health itself. What's the overall function of that department?

Johanna Barde:

The function of the Department of Health is to promote the health and prosperity of the people of Tennessee. We have multiple divisions, but some of our basic missions are to provide public health initiatives for the state, public health clinics, et cetera. Then on the other side, the side that I do, we work to protect the public by ensuring that their access to healthcare means access to competent practitioners who are doing their jobs correctly and with the best interest of the public in mind.

Debby Merritt:

So if you have a client, the client is really the people of the state of Tennessee.

Johanna Barde:

Yes, absolutely.

Debby Merritt:

Well, tell us a little bit more about the structure of the department and then how you fit in. You mentioned that there are these public health initiatives that people probably think of first with the Department of Health and then there's the side you work on, which is policing the health professionals out there.

Johanna Barde:

So at the top of the Department of Health, we have the Commissioner of Health, that's Dr. Dresner in Tennessee. I am in the Office of General Counsel. My head boss in my department is the general counsel for the Department of Health. Then the Office of General Counsel is sort of divided into two branches and one of them works more with those public health initiatives and works with federal grants, employment issues, et cetera. And then the other side of the Department of Health is my side that works with the health related boards. And we have about three levels of administration down to where I am at Assistant General Counsel.

One of the boards I work with closely is the Board of Professional Counselors, marriage and Family Therapists and Clinical Pastoral Therapists. And it is a five member board. There's always one public member, one non-professional, general member of the public on every board. And then there are four members of the profession. And those are actually three different professions. So we have one clinical pastoral therapist, two licensed professional counselors, and a marriage and family therapist on the board. They work to create rules and regulations that ensure that counselors are abiding by professional standards and able to provide the kind of care that the public needs.

Debby Merritt:

So they're a little bit like the disciplinary authorities we have in law.

Johanna Barde:

Yes.

Debby Merritt:

They are both interpreting the rules of professional conduct and then applying them to individual cases.

Johanna Barde:

Exactly. And also writing the rules of professional conduct in the first place.

Debby Merritt:

How many different boards are there?

Johanna Barde:

I believe there are about 29. The largest, of course, are the board of nursing. There are over a hundred thousand nurses in Tennessee and then also the Board of Medical Examiners. Then there are many smaller boards, professions that a lot of people don't even realize are regulated.

Debby Merritt:

What are the boards that you work with?

Johanna Barde:

I work with the licensed professional counselors, marriage and family therapists and clinical pastoral therapists. I also work with the social work board and those are the two boards that I both advise and prosecute in front of. And then in addition, I prosecute only for the Board of Nursing.

Debby Merritt:

And before we talk more about that, how are these boards appointed?

Johanna Barde:

They're appointed by the governor. He has to follow some guidelines in terms of regional diversity, racial diversity, and age diversity. And then there always needs to be at least one public member.

Debby Merritt:

And how are the boards funded? Do the taxpayers have to pay for them?

Johanna Barde:

No, they are entirely funded through the fees paid by members of the profession to renew their licenses.

Debby Merritt:

Is that the way that most states have this set up, do you know?

Johanna Barde:

It varies from state to state. A lot of them have a situation like Tennessee where there's an umbrella agency like the Department of Health or the Department of Social Services. The boards are under that, but their day-to-day funding comes from their dues. But there are other states. North Carolina, I believe is one of them where the board is more of an independent entity. Again, funds itself but is not under so much oversight from the government.

Debby Merritt:

But one way or another, there's a whole apparatus in every state regulating all these different professions.

Johanna Barde:

All states have at least some health related boards. Some of the smaller professions are not regulated in all states. Statutory authority starts to crop up in one state and then spread when you're talking about recognizing a new profession. So for instance, Tennessee recognized counseling, professional counseling as a profession in the late eighties, but California did not start a licensing board for professional counselors until 2009.

Debby Merritt:

Gee, and people think of California as a big government state. Well, let's talk now about what you do with these boards. You mentioned that you spend time both advising the boards and then prosecuting. How does your time divide between those two functions?

Johanna Barde:

So about 75% of my time is spent prosecuting for the board of nursing. There are also five other attorneys who do that, but the sheer volume of members of the nursing profession in Tennessee ensure that we always have plenty of disciplinary complaints and we spend a lot of time on that. The rest of my time is spent on the two boards for the smaller professions, social work and professional counseling. Luckily, those professions don't receive that many complaints, so I probably spend the majority of time with those boards doing advisory work, a lot of time writing rules and regulations, researching whether the states are doing and trying to figure out what would work for Tennessee. But I do spend some small amount of my time prosecuting cases for those boards as well.

Debby Merritt:

Before we talk about the biggest part of your work, which is prosecution, let's give a little more detail about advising. How does that work on a daily basis?

Johanna Barde:

Issues sort of come in on a rolling basis. We have board meetings approximately four times a year. And so before a board meeting, I will start to look at whether the board has made any requests from the last board meeting. And the board requests usually come up from issues brought to them by other members of the profession. Sometimes they go to professional conferences and then they at the board meeting will turn to me and say, "This is what we want to do. How do we accomplish that?" And so when we're talking about writing rules and regulations, that's usually how the requests for new rules or regulations come up. On the flip side of that, sometimes I as their advisory attorney say, "You know what? This is what we've been doing. But that doesn't seem like it's quite in line with the statutes or the mission of the board to protect the public." So I suggest as the attorney that we make some changes to get more in line with that.

Debby Merritt:

So these might evolve issues like technology or privacy or therapeutic approaches, all kinds of things. I imagine

Johanna Barde:

Two of the big issues that I'm working on with the counseling board right now are using technology in counseling, distance counseling, how to accomplish that, how to make sure that it's properly regulated. And then also the issue of reciprocity with other states, because we have such a mobile society that we want to make sure we're not hampering people who are trying to move to the state of Tennessee to get licenses.

Speaker 1:

Support comes from LSAT Lab. LSAT Lab wants to make preparing for the LSAT joyous and affordable. Self-study plans are $49 per month, or you can attend unlimited live online classes for $99 per month. All paid plans come with LSAT Lab's renowned explanations, a meeting with an expert who will tailor your study plans to your needs and a five point score improvement guarantee. LSAT Lab reports an average score improvement of 12 points. Check out LSAT Lab's free lessons on YouTube or create a free account at lsatlab.com. Support also comes from Seton Hall University School of Law in Newark, New Jersey, where you can enroll full-time, part-time or in the weekend JD program. In the heart of New Jersey with proximity to New York City, Seton Hall boast high employment and bar passage rates. Seton Hall is dedicated to your outcomes. It's one student at a time approach supports you throughout your time in law school.

This is particularly important for part-time and weekend JD students who need flexibility to achieve their work school life balance. Learn more at law.edu. Support also comes from Cardozo Law and New York City, a school built on innovation, ambition, activism and advocacy. Cardozo is the birthplace of the Innocence Project, the home of the fame center for fashion, art, music and entertainment law, and a leader in intellectual property law. Among other things, the school's clinics protect LGBTQ and immigrant rights, council tech startup entrepreneurs, and guide aspiring filmmakers, all with the passion for promoting social. Justice consider the May entry program for a jumpstart to your studies as early as this year. Cardozo Law, bringing law to life.

Debby Merritt:

So there's the policy side of your work informing people, drafting regulations, and then the bigger side of your work, the prosecution. How do those prosecutions start?

Johanna Barde:

Prosecutions start through the complaint process. We have an investigative department in the Department of Health that accepts complaints from the public, and occasionally we'll initiate complaints if something comes up, for instance, through media, a lot of times one of us will be watching the news and say, "Oh, this is probably going to be an issue." And then we'll initiate an internal complaint. But most of the complaints come from the public. With nursing anyway, we review those complaints every two weeks, we have a nurse, someone who is actively working in the profession, come in and volunteer their time to review those complaints with us. And we look at it from the attorney perspective and say, "Have they violated any of the laws of the profession?" And they look at it from the nursing side and say, "How common is this incident that happened? How bad is it?" And it really helps to have their perspective because a lot of times we will read a complaint and think that's not really that big a deal. And they'll say, "That's an enormous problem." After we have our complaint review, we decide whether it's worth investigating.

Debby Merritt:

Well, let me pause you there. Could you give us some examples of the types of charges that come in?

Johanna Barde:

With nursing, the majority of the complaints involve diversion, which is the technical nursing term for theft of narcotics from the facilities. And so we'll have complaints that a nurse removed a vial of morphine and later could not account for which patient that morphine had been given to. We'll have complaints about people acting impaired at work, being unable to perform their duties because they can't concentrate. And then we also have complaints about patient abandonment, home health nurses that are supposed to go visit patients in their home and don't make the visit. That's on the nursing side. Most commonly on the counseling side, it's usually about multiple relationships because there's always that power and balance between a counselor and the person they're counseling. And the counselor's supposed to be very careful not to take that relationship out of the counseling context and for instance, rent someone a house or loan the money or have them work for them. Very similar to the professional rules of being an attorney. I mean, you're not supposed to have a sexual relationship with your clients. That's a very clear rule in counseling as well.

Debby Merritt:

Now, in many of these complaints, it sounds like there would also be potential criminal or civil liability.

Johanna Barde:

The majority of them are not reported to the criminal justice system. I think because they are not viewed as a... They're sometimes not viewed as a priority depending on what the violation was.

Debby Merritt:

If it's a single vial of morphine, it may or may not have been that the nurse used it. It could have been lost for some other reason, that type of thing.

Johanna Barde:

Exactly. And our burden is preponderance of the evidence, evidence rather than beyond a reasonable doubt. Because we're talking about when we're talking about disciplining the license is the property interest that they have in the license. So they receive due process to protect their property interest, and we prove by a preponderance of evidence that they deserve to have that license either probated or reprimanded or suspended, et cetera. But just because we can prove that in our administrative matter does not necessarily mean that a criminal prosecution could prove it beyond a reasonable doubt.

Debby Merritt:

Sure. Well, let's go back then to the process that you follow. You have the complaint that comes in, you review it with this nurse, the nurse says, "Yeah, this is something that should be proceeded on" and what happens next?

Johanna Barde:

Sure, we send it out for investigation. Investigation can take anywhere from a month to a year depending on the amount of information that we need to receive, how hard it is to get ahold of witnesses, et cetera. But once the investigation is complete-

Debby Merritt:

Who does the investigation?

Johanna Barde:

The investigators are mostly members of the profession. So they're licensed nurses a lot of the time, but they work full-time for the department and they are directed by the attorneys. We explain to them this is the type of evidence we need in order to prosecute this case. And we send them out to go and collect the evidence and identify important people. So once they've collected everything that we've asked for and interviewed all the relevant people, they'll bring their investigation back to us and make a report. And at that point we decide as attorneys whether or not to prosecute the case and what level of discipline to seek in that prosecution. Almost all boards subscribe to the same disciplinary scheme, which is that we have informal private discipline, which are called letters of concern and letters of warning.

And then we have formal public discipline, which would be a reprimand on the license, which is just sort of a statement, "Hey, don't do this again." Probation on the license and probation can either just be sort of an ongoing flag on the license with no restrictions, or it can come with restrictions in terms of types of settings they can work in. Or for instance with nursing, it's common that we will require people to go to a rehabilitation program and to have monitoring, which includes random drug tests on their license during the period of probation. And then above that would be suspension and revocation of the license. And some boards allow permanent revocation, but a lot of boards simply have revocation and the person is allowed to come back in the future and reapply for the license.

Debby Merritt:

That's similar, I think, to admit the way the standards for many attorneys where there would be an indefinite suspension and the person has to come back and prove that they're worthy to resume their license. How do you then go forward? How do you present these alternatives to the individual involved?

Johanna Barde:

Well, first of all, we notify them that we have had a complaint against them and that we are moving forward with the prosecution and we send them a letter basically notifying them of the facts that we have and telling them that they have an opportunity to agree to discipline, to settle the case. Otherwise, we will file a formal notice of charges to have a hearing in front of the board. And usually with that letter of notice, we also send a proposed consent order, which is essentially our settlement offer to them in which they would admit to certain behaviors, admit that it was a violation of the practice act and agree to the suggested discipline. Once they receive that, we usually have negotiations. A lot of times they'll hire an attorney and we'll talk with the attorney about whether the discipline proposed was acceptable to them, change some facts, perhaps rephrase some issues and try to come to an agreement. And we settle most of our cases through this consent order process because if we did not do that, we would not have time to prosecute all the cases that we do need to do.

Debby Merritt:

Same as in the criminal justice system. But these are not criminal prosecution. So I assume that professionals are not entitled to a lawyer.

Johanna Barde:

Correct. They're not entitled to a lawyer that is paid for by the board or the state or any other entity. They are of course entitled to hire their own attorney to represent themselves.

Debby Merritt:

What if the professional can't afford a lawyer? Do they have other options?

Johanna Barde:

I have heard of some cases, I haven't had it happen in any of mine where local legal clinics have taken this on because the license is a property right and it's going to affect their right to work.

Debby Merritt:

Have you seen many professionals represent themselves or do most come with a lawyer?

Johanna Barde:

In nursing, I believe that most of them represent themselves, certainly in the settlement negotiation portion of it. Once I actually file a case for a hearing, many times they'll hire an attorney because the hearing abides by administrative rules of procedure, which are very similar to the civil rules of procedure and include use of the rules of evidence, et cetera. But there are people that come and represent themselves. And even without an attorney, it really does benefit when the person shows up and tells their side of the story to the board because the board as members of the profession understand the pressures that these professionals are under. They can be very sympathetic to someone who comes and takes responsibility and wants to do what is necessary to sort of get right with the board.

Debby Merritt:

Are there people who don't show up for the hearings? You said if they show up.

Johanna Barde:

Unfortunately, we do have a lot of default proceedings. It's usually a matter of the fact that the person did not keep up with their contact information. Under the statutes, they're required to update their address within 30 days if they move so that we can get ahold of them. And of course when we serve them, we serve them at their address of record. We try to do address searches, clear searches in order to find the person and make sure we've really given them notice. But sometimes it's possible the person doesn't get their mail, doesn't even realize there's a hearing. And then at other times, I think there's a bit of a burying their head in the sand, sort of hoping that if they don't respond, this will all go away mentality.

Debby Merritt:

Yeah, it's not good, but I've seen that too.

Johanna Barde:

Yes. And it's especially sad when we're talking about nurses that are possibly dealing with addiction issues because we really don't try to be punitive. What we're trying to do is ensure that the professional is competent and therefore we usually start from a position of sending them to a professional assistance, a peer assistance program to get them the help they need. And yet when you're dealing with someone with addiction issues, a lot of times they are more prone to sort of ignore it and hope it goes away. It can be a little bit depressing, honestly, sometimes.

Debby Merritt:

Well, tell us about the hearings themselves. I've heard from you that the investigation can take anywhere from a few days to a year. How do you yourself prepare for a hearing?

Johanna Barde:

I prepare as anyone would for a trial. I gather my evidence, I talk to my witnesses. I subpoena the witnesses if they're testifying live. We do have a provision that allows us to use sworn written testimony if it's not objected to. So sometimes I use that, but a lot of times I'll have live witnesses and I make sure they're coming. I go over what I'm going to be asking them about. I come up with questions to ask them. I prepare an opening statement and a closing statement, copies of the exhibits to hand out to the board, and it really functions a lot like a trial.

Debby Merritt:

And the board is in the position of the decision maker?

Johanna Barde:

Sure.

Debby Merritt:

I see.

Johanna Barde:

Yes. And we do have an administrative judge who presides over the hearing, but the administrative judge is really just there to offer procedural rulings on evidence, et cetera, and to offer charges to the board so that they know how to view the evidence.

Debby Merritt:

How long does a hearing typically last?

Johanna Barde:

It depends. If they hire an attorney, it will usually last at least a half a day, sometimes longer. We have had hearings last well into the evening hours, which is kind of difficult because we have board meetings about four times a year. So for instance, for nursing, we might have three disciplinary panels going at one time. But if one disciplinary panel is in one hearing for 12 hours, then any other cases that we're supposed to go before that disciplinary hearing get pushed off to the next board meeting, which is three months later.

Debby Merritt:

And that does keep the pressure up for settlements?

Johanna Barde:

Yes.

Debby Merritt:

What's the effect of the delay on the professionals themselves? Are they able to work while that hearing is postponed?

Johanna Barde:

They are, because it's a property right. They have no action on their license until the hearing is resolved and a final order affecting the license is issued. So I guess you could say there's some amount of impact on them because they have a pending case. They're sitting here waiting for a resolution. They want to know what's going to happen to get on with their life. But in terms of actual discipline or restrictions from the board, there are no restrictions and there are no disciplinary actions until that hearing is had.

Debby Merritt:

So that keeps the pressure on you and on the board if you want to protect the public?

Johanna Barde:

Exactly. And my office is very strong about opposing continuances. If someone is a danger to the public, then we need to act. And we do have a provision that allows for summary suspension in the case where someone is a grave danger to the public, where the rules of due process are slightly lessened because of the emergency situation. But the summary suspension process requires approval from the attorney general's office and is very rarely used.

Debby Merritt:

You mentioned before that the board is in the position of a jury, but also are they also the ones who get to decide on the disposition, the sentence?

Johanna Barde:

Yes, they do.

Debby Merritt:

So the judge is simply, as you said, playing the role of enforcing the rules of procedure and evidence. The board is then making the full decision not just on the facts, but also how to apply the law to those facts. How often do you go through these hearings? Or do they come up every three months?

Johanna Barde:

For nursing, they definitely come up every three months. I have at least one hearing and often more like four or five hearings at every nursing board meeting. With the counseling board and the social work board, it is a little less common that I would have a full hearing because a lot of those... There aren't as many complaints. There are fewer cases, and a lot of those cases settle because the practitioners usually understand that what they have done is inappropriate, and we try to work with them to get them some reeducation. I think it's actually been a few years since I've had a hearing in front of one of those boards.

Debby Merritt:

So what do you like about your job? It sounds like you like it from your responses.

Johanna Barde:

I do. While I enjoy the fact that I feel like I'm working for the public good, I also really like my coworkers. I feel that we have a very competent office of people who care passionately about what they're doing. Although the work itself can sometimes be depressing, the office is pretty uplifting.

Debby Merritt:

Do you have a chance to work frequently with your coworkers on cases or do you pretty much handle your own cases?

Johanna Barde:

Yes, especially on nursing. When we're doing this complaint review and deciding whether to prosecute a case and what to look for, we're doing it as a team. I'll send out an email, has anyone ever filed a motion for whatever it is I'm trying to do, and we'll share ideas and work together in that respect.

Debby Merritt:

And it sounds like just the right sized office for that sort of interchange.

Johanna Barde:

It is. We're actually one of the bigger state offices, I believe with about 20, maybe 23 or so attorneys.

Debby Merritt:

So what are the downsides to the job?

Johanna Barde:

I think the biggest downsides are the nature of the work and the fact that it can get both repetitive, and there's a lot of it. There's sort of a reputation of government workers that we don't work particularly hard, that we're in the job that we're in because we wanted good hours, et cetera. But I know that I spend a lot of time taking work home. I know that my colleagues do as well, coming on the weekends, et cetera, because there is a constant flow of work and not enough people to do it. And so it can get stressful at times. Prosecution work at least is adversarial. I mean, that's something that I need to deal with. I would probably be much happier if I could just do the advisory work all day long, but a large portion of the work is the prosecution, and so I've learned to deal with that more adversarial environment.

Debby Merritt:

You're essentially on trial fairly often because in most other practice areas, it would be unusual for a lawyer to have a trial once every three months, but you really have four trials at once every three months, it sounds like.

Johanna Barde:

Yeah. When you put it that way, it does seem like a lot.

Debby Merritt:

What's led you to this job?

Johanna Barde:

Well, I had no idea what administrative law was before I went to law school, and I don't even think I really knew what it was in the first year or so of law school. When I came in, I thought I had wanted to do public health work, and I knew I wanted to do public service being in a nonprofit or government. In looking for internships my first year, I focused on that and I actually interned with the Department of Health in the Office of General Council between my first and second year. Second year, I sort of started focusing on environmental law, which is also administrative and kind of forgot about the department as a place to work. But when I got out of school, I graduated without a job, but I was fortunate enough before I passed the bar to get a clerkship with a judge in the area.

And as that clerkship started winding to an end, I had to find a job and I sent my resume to, as far as I know, unless I left someone out, every single state agency in Tennessee. And I said, I want to do administrative law. I knew that much coming out of law school, and I didn't really care what area it was in. And the Department of Health was one of the departments that got back to me, went in for interviews, was offered a position. Now they did hire, oh, I don't know, probably six or seven people around the same time they hired me. And because I had interned there, I sort of knew what I was getting into and decided that it would be a good place to start my career.

Debby Merritt:

Six people though, that's a lot. Is there a high degree of turnover in the department?

Johanna Barde:

I think that there was a high degree of turnover several years ago, but they've done a really good job of trying to keep us recently. The Governor actually did a study where he looked at what people in private practice make versus what people in state government make because he's of the opinion that if you pay people well for the job that they do, they're more likely to stay. And so in the last couple of years, we've had some raises in order to sort of get us closer to the market rate for private practice, which I think has definitely contributed to people staying for longer than they otherwise would.

Debby Merritt:

Do you think you'll ever go to the other side? If you left the office, I imagine there'd be a lot of professionals who would hire you as their defense counsel.

Johanna Barde:

I don't know that I would ever want to do defense. I think I could do it competently. I don't know that I would ever want to do that, for a couple reasons. First off, I'm not sure that I would want to set up my own practice at this point. That still seems very daunting. And I do prefer the sort of safety of having an employer, the stability. I understand that the people are deserving of a competent defense because it is a property interest and they have worked hard to get their licenses. But at the same time, I think I'm more comfortable on the prosecution side. I think if I were to leave the department, it would be to do another type of administrative work in the state in a different department, rather than going to the private defense side of it.

Debby Merritt:

Or even from what you said before, it sounds like you might be tempted to move to a job that had a higher proportion of policy work.

Johanna Barde:

Yes. That would also be interesting to me. More advisory work. I actually really enjoy writing rules and regulations. A lot of people in my office prefer the litigation aspect of it. My heart is in the rules.

Speaker 1:

I Am The Law as a LawHub production. Don't forget to subscribe and rate this show on your favorite podcast app. Thank you to our presenting sponsor, Blueprint LSAT test prep. Thank you also to our other sponsors, LSAT Lab, Vermont Law and Graduate School, Seton Hall University School of Law, Penn State Dickinson Law, Cardozo Law, and Baylor Law.