AAD/A committee participation and ethical conduct: Policies and procedures

By Megan La Suer, JD, MHA, and Robert M. Portman, JD, MPP, January 1, 2020

Every month, Dermatology World covers legal issues in “Legally Speaking.” This month’s authors are health care attorneys with Powers Pyles Sutter & Verville in Washington, DC. Portman is also general counsel for the AAD and AADA.

The American Academy of Dermatology and the American Academy of Dermatology Association (collectively referred to as “AAD/A”) are committed to advancing excellence in dermatology through the education, development, and ethical conduct of its members. To best achieve these goals and provide individual members with the most benefit, the AAD/A has implemented a comprehensive set of policies and procedures that are meant to help align member conduct with the AAD/A’s organizational priorities and needs. This article answers frequently asked questions posed by AAD/A members regarding the AAD/A’s confidentiality, intellectual property, and disclosure of outside interests policies; ethics code; and AAD/A disciplinary procedures.

Question: I was just appointed as a member of an AAD/A council, committee, task force, or work group (collectively referred to as “committee”). Why am I required to sign a confidentiality/non-disclosure agreement?

Answer: The AAD/A requires all members of committees to sign a confidentiality/non-disclosure agreement in order to protect all non-public AAD/A information that committee members receive or create during their service on AAD/A committees.

The AAD/A encourages all its members to have an active role within the AAD/A committee structure. AAD/A committee members are frequently exposed to confidential or proprietary AAD/A information. In addition, the AAD/A seeks to establish an environment in which committee members can engage in frank and open discussions about sensitive AAD/A issues. Accordingly, it is essential that all AAD/A committee members sign a confidentiality/non-disclosure agreement to protect AAD/A confidential or proprietary information, including the discussion of such matters in committee meetings or other informational exchanges. Unauthorized disclosure of such information could harm the best interests of the AAD/A and/or its members if it were revealed.

By signing the confidentiality agreement, members agree that they will not release any committee work product and/or its related components to individuals outside of the committee, including professional colleagues or supervisors, family, and friends.

Question: I have signed the confidentiality form, why do I also have to agree to a copyright assignment as well?

Answer: The copyright assignment confirms that AAD/A maintains ownership of all committee work product and helps to prevent work product ownership disputes. It is essential that each committee member assign their rights in the committee’s work products to the AAD/A to allow the organization to use those materials for the benefit of its members, patients, and the public. Under federal copyright law, the individual or entity that creates a copyrightable work (i.e., a work of original authorship) generally owns that work. However, an owner of copyrighted material may choose to affirmatively waive or transfer to another party ownership and control of a copyrightable work. Asking all members to do so when they participate in committee work is what allows the AAD/A to effectively use the work of the committee to develop educational or other materials for the benefit of the members and their patients.

Under federal copyright law, in the absence of a copyright assignment to the AAD/A, each committee member would arguably own their relative share of any committee work products that are considered original works of authorship. As a result, the AAD/A would not be able to use or disseminate such work products, or create derivative works from the original works, without the permission of each committee member who contributed to them. In other words, the AAD/A would effectively have to get a license (i.e., written permission) from each committee member to use any copyrightable works, such as clinical guidelines, reports, studies, or the like. Such a requirement would create administrative burdens for the AAD/A and could prevent it from providing important benefits to its members and patients.

By signing the copyright assignment, each committee member transfers ownership and control of their relative share of any committee work product to the AAD/A. This also means the committee member will not have the right to receive any royalty or other type of compensation for allowing the AAD/A to use their work product.

Question: What kind of conflicts am I supposed to disclose under the AAD/A disclosure of outside interests and management of conflicts of interest policy?

Answer: AAD/A committee members and others covered by the AAD/A disclosure of outside interests and management of conflicts of interest policy are required to disclose any relevant financial and non-financial interests that could bias the member’s ability to act in the best interests of the AAD/A.

In order to further the mission and purposes of the AAD/A, it is important that decisions made by AAD/A members are not unduly influenced (or perceived to be unduly influenced) by any financial, professional, or personal interests. An interest includes any financial (anything with monetary value, including wages, stipends, stock, ownership, royalties, or property) and non-financial interests (e.g., authorship/publications, product development, promotions, appointments, honors, and loyalties to other entities). A conflict of interest exists when there is a risk that a relevant interest of a member interferes with or conflicts with the interests or mission of the AAD/A. Relevant interests are those that bear on issues of importance to the AAD/A and its membership.

Any circumstance that would cause a reasonable person to suspect that the professional judgment of a committee member on matters relating to AAD/A business may have been improperly influenced by some outside interest can be considered a conflict of interest. Examples of conflicts of interest include:

• An AAD/A officer having an ownership interest in or advocating for a company from which the AAD/A makes major purchases of goods or services.

• An AAD/A member being an investor or having ownership interest in a company that provides any type of medical services or medical education in the dermatology field.

• An AAD/A member participating on the Board of Directors or working for a medical journal of a different dermatology association.

• An AAD/A member being employed by or actively engaged with a government agency, medical device or pharmaceutical company, or other health services entity, and is also currently in a position to influence the development of AAD/A position statements, policies, or clinical guidelines that might benefit or harm such outside entity.

Question: How often do I need to disclose potentially conflicted interests?

Answer: All potentially conflicted interests must be disclosed during the annual disclosure process.

Members participating in AAD/A committee activities are required to disclose any health care related financial interests, and/or any conflicted interest related to an AAD/A project or activity through the annual disclosure process. AAD/A committee members are also required to update their disclosure form within 30 days after acquiring a new financial interest. In order to promote transparency and avoid any perception of bias or undue influence, AAD/A members must disclose any potential conflicts of interests whenever they are working on AAD/A matters relevant to such conflicted interest.

Question: I potentially have a conflict of interest. Who decides whether a conflict exists and how do I go about disclosing this conflict?

Answer: The AAD/A Secretary-Treasurer is charged with making the final determination regarding whether a conflict exists.

The AAD/A believes that common sense should guide decisions about what to disclose. In determining whether a member should disclose a particular relationship or interest, members should ask themselves: If made known to the full membership of the AAD/A or to the general public, would the relationship or interest likely create the perception of impropriety, cause embarrassment for the AAD/A and/or the individual involved, or cause others to question the motive behind any AAD/A action in which the member was involved? If the answer to any of these questions is yes, the member should disclose the particular relationship and/or interest.

Members submit disclosure of outside interests statements through the AAD/A website. The disclosure statement will be sent to the appropriate chair for review, and if necessary, it will be forwarded to the AAD/A’s Secretary-Treasurer if it appears that the member has a conflict that would prevent him or her from serving in the appointed capacity. It is the responsibility of the Secretary-Treasurer to review all disclosure statements and make a determination as to whether an actual conflict of interest exists and if the member-appointee needs to discontinue the conflicted activity and/or vacate. The Secretary-Treasurer may consult with the AAD/A Professionalism and Ethics Committee and AAD/A legal counsel when making a final determination.

Question: As a dermatologist, is there a dermatology-related medical ethics code that applies to me?

Answer: Yes. AAD/A members must abide by the Code of Medical Ethics for Dermatologists. The AAD/A has developed the Code of Medical Ethics for Dermatologists (the “Code”) to provide the standards of conduct that define the essentials of honorable behavior for dermatologists. The Code is designed to address a dermatologist’s responsibilities to patients, to individuals involved in health care, and to society as a whole. It also incorporates the American Medical Association’s Code of Medical Ethics. Violations of the Code may be subject to disciplinary actions. The Code and the administrative regulations for enforcing the Code are available on the AAD/A website in the ‘Members only’ section.

Question: If another member of AAD/A files a complaint against me, will I be entitled to due process? Also, will the complaint be kept confidential?

Answer: Yes. All members are entitled to extensive due process and a fair hearing if a complaint is filed against them. These proceedings are confidential; however, there are circumstances in which AAD/A is obligated to report the complaint and any disciplinary actions taken against the member to the National Practitioner Data Bank and the state medical board under which the member is licensed.

Disciplinary actions may only be initiated by an AAD/A member or by the AAD/A Professionalism and Ethics Committee (“PEC”). All complaints should be submitted to the Executive Director of AAD/A, who will then forward them to the President, the Secretary-Treasurer, the chair of the PEC, and AAD/A legal counsel for preliminary review. All disciplinary proceedings will be kept confidential until the final disposition of the complaint is rendered, at which time the decision will only be disclosed according to AAD/A policies.

In the normal course of the AAD/A disciplinary process, the respondent is made aware of the complainant’s identity to ensure the respondent’s right to due process. Thus, the disciplinary rules do not permit anonymous complaints, but the complainant will have an opportunity to withdraw their complaint before their identity is shared with the respondent. In such cases, the PEC would then have the option of filing its own complaint against the respondent while keeping the original complainant’s identity anonymous.

The member against whom the complaint is made (the “respondent”) will be notified that a complaint has been made and will be sent the full set of documents and supporting materials submitted by the “complainant” if the complaint passes through the preliminary review phase. The respondent will then have 30 days to prepare and submit any written response, supporting documents, and/or exhibits. The respondent also has the right to a hearing before a judicial panel and the Board of Directors, if necessary.

Question: Do I have an obligation to self-report an adverse action that has been taken against my medical license?

Answer: Yes. Each AAD/A member has an affirmative obligation to promptly inform AAD/A’s Executive Director or Secretary-Treasurer of adverse actions taken against their medical license.

AAD/A members must promptly report when any medical licensing authority — whether a state medical board, the Drug Enforcement Administration, or a similar entity — revokes, suspends, or otherwise restricts that member’s medical practice license, or takes any other disciplinary action against the member. AAD/A members must also promptly report if the member voluntarily surrenders their medical license while under investigation, or if the member is indicted or convicted of a felony.

Question: If the AAD/A has determined that a disciplinary action is warranted against a member, under what circumstances is the AAD/A obligated to report such actions to the National Practitioners Data Bank?

Answer: The AAD/A is obligated to report disciplinary actions taken against a member when the disciplinary action adversely affects the individual’s membership rights and the member’s conduct threatens or could threaten patient welfare.

Information concerning any disciplinary actions that adversely affect membership rights and that are based on conduct that affects or could affect patient welfare must be reported to the National Practitioners Data Bank and appropriate State Boards of Medical Examiners. Such information may also be reported to the American Board of Dermatology and/or local dermatologic societies if the AAD/A decides that the circumstances so warrant.

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