The Office of Professional Medical Conduct and How the New Changes In Public Health Law Section 230 May Effect You!

By Lawrence F. Kobak, D.P.M., J.D. & Michael S. Kelton, Esq.

On June 23, 2008, Governor Paterson announced an agreement with the State Senate and Assembly on a bill that will tighten the physician discipline system and give consumers more public access to information about physicians, particularly those charged with misconduct. That legislation became effective November 3, 2008.

The new legislation alters the physician discipline process, regulated by Public Health Law Section 230, as follows:

• Requires the Office of Professional Medical Conduct (“OPMC”) to make charges against a physician public by posting the charges, and the physician’s name, on the website of the Department of Health (“DOH”), within 5 business days, when the State Board for Professional Medical Conduct (“Board”) has unanimously voted that a hearing is warranted and a Statement of Charges is issued and served upon the physician under investigation. If there is no such unanimous vote, the Board is required to take a separate vote on whether the charges should be made public. A statement that advises that the charges are subject to challenge by the physician must accompany the public announcement.
• Requires physicians to update their physician profiles every 6 months and makes updates a condition of re-registration for his or her license.
• Allows OPMC to file professional misconduct charges against a physician who fails to produce, within 1 day, office records that OPMC requires in a communicable disease inquiry.
• Establishes an ongoing review process of a physician’s malpractice history to see whether a pattern of large malpractice settlements and pay-outs warrants an investigation of the physician.
• Allows OPMC to more easily obtain a physician’s own personal medical records if there is reason to believe that the physician may be impaired by alcohol, drugs, physical disability, mental disability, or has a medical condition that may be relevant to an inquiry into a report of a communicable disease.
• Authorizes DOH to disclose information to the public regarding public health threats that come to light in the course of an OPMC investigation, regardless of applicable confidentiality provisions under Section 230 of the Public Health Law.
• Authorizes DOH to direct a physician to cease activity uncovered during a communicable disease investigation that constitutes an imminent danger to the public health even if the investigation has not been fully completed.
• Authorizes DOH to direct a physician to take a clinical competency exam, where clinical issues are involved.
• Adds additional parameters to the Board’s authority to suspend a physician’s license.
• Provides for the mandatory disclosure to the physician of exculpatory evidence in the possession of OPMC.
• Provides for the disclosure, upon request, to a physician under investigation or his attorney, of OPMC’s internal report of its interview of the physician.

What is the OPMC

The OPMC is the arm of the New York State Department of Health (“DOH”) responsible for investigating all complaints of professional misconduct brought against a physician or physician’s assistant, and, when warranted, prosecuting those cases. Its employees include investigators and medical coordinators, who investigate and evaluate complaints, attorneys who oversee and prosecute the cases, administrative law judges who preside over hearings and miscellaneous support staff.

Information regarding the OPMC can be accessed through the DOH’s web site, www.health.state.ny.us, under “Physician Discipline.” The web site contains information on how to file a complaint, brochures regarding medical misconduct, frequently asked questions, and relevant statutes. All disciplinary actions taken against physicians since 1990 are posted on OPMC’s web site, as well.

Since 1993 there has been a large increase (approximately 77%) in the number of physician disciplinary actions taken by OPMC. This increase is largely attributed to a 1992 revision in the law which significantly streamlined the physician disciplinary process. Complaints made to OPMC come from a variety of sources, including patients and family members, state agencies, hospitals, other physicians, the news media, etc. OPMC is required by law to investigate every complaint it receives. For calendar year 2007, OPMC received more than 8,000 complaints. Approximately 4,000 or 50% of these complaints are typically closed after an initial review by OPMC, due to either a lack of jurisdiction (i.e., the complaint even if true, would not constitute professional misconduct, such as simple billing disputes, miscommunications, or personality conflicts) or the finding of a minor or technical violation (i.e., failure to forward medical records to a patient or physician) which can be easily remedied by telephone intervention with the physician. This means that approximately 4,000 new investigations were opened in 2007. According to OPMC, 2008 will generate even higher numbers

State Board For Professional Medical Conduct

After the investigation of the complaint is completed by OPMC, the remaining cases that have not been dismissed will then be submitted by OPMC investigators to members of the State Board for Professional Medical Conduct (“BPMC”). BPMC consists of physicians and lay members who sit on panels of two physicians and one lay person and serve as objective reviewers of fact in cases of alleged professional misconduct.

The physician members are appointed by the Commissioner of Health and the Board of Regents based on recommendations made by medical and professional societies which are representative of New York State in terms of medical specialty, race/ethnicity and geography. The lay members are appointed by the Commissioner of Health with the approval of the Governor and the Board of Regents.

BPMC members primarily sit on two panels: 1) investigation committees, which determine whether the case should be dismissed, whether charges should be brought against the physician, or whether further investigation is needed and 2) hearing committees, which adjudicate cases when formal charges are brought against a physician, by determining whether the charges have been sustained and, if so, the penalty to be imposed on the physician’s license to practice medicine.

The Investigation

OPMC investigators are primarily persons with health care backgrounds (i.e., nurses) or investigatory backgrounds (i.e., former police officers or insurance investigators). In investigating complaints involving issues of clinical practice, these investigators consult with licensed physicians employed by DOH, known as medical coordinators, who assist in determining whether the complaint warrants further investigation and ultimately whether the case merits submission to one of BPMC’s investigation committees.

Investigators have a number of tools at their disposal to obtain information after a complaint is received. These include obtaining a patient’s medical records, obtaining other documents pursuant to subpoena issued by the Board (such as hospital quality assurance or personnel files of the physician under investigation), interviewing witnesses, colleagues of the physician, and the physician under investigation (if he/she consents to such an interview), reviewing a database of the malpractice history of the physician under investigation, and, in limited instances, surveillance of the physician.

When clinical issues are the basis of the complaint, the physician’s office records and hospital records, if relevant, will be reviewed to determine whether there is any basis to conclude that professional misconduct has occurred. Investigators will routinely review the physician’s hospital quality assurance files to determine whether the physician under investigation has had other complaints or issues that might suggest a pattern of misconduct or deficient practice.

There are approximately 48 definitions of professional misconduct in New York which are found in the governing statute (the New York Education Law) and the regulations promulgated thereunder. The primary categories of misconduct that result in OPMC prosecutions and sanctions against physicians are:

• Practicing with gross negligence or with gross incompetence on one occasion, or with ordinary negligence or ordinary incompetence on more than one occasion;
• Fraud in the practice of medicine;
• Moral unfitness;
• Patient abuse;
• Practicing while impaired by drugs, alcohol, physical disability or mental disability;
• Being convicted of a crime under New York State law, Federal law, or the law of another jurisdiction which would constitute a crime in New York State;
• Having been found guilty of professional misconduct in another jurisdiction which would constitute professional misconduct in New York State.

Practicing while impaired by substance abuse or mental impairment can sometimes be dealt with in a non-disciplinary fashion if the affected physician seeks treatment and no patient harm has occurred. Under these circumstances, a physician can temporarily surrender his or her license (which surrender is deemed confidential and not considered a disciplinary action) while treatment is sought. Thereafter, the physician can petition to have his license restored upon a showing that he or she is no longer incapacitated to practice medicine.

Investigation Committees

After the investigation is completed, if the OPMC investigator and/or medical coordinator believe that professional misconduct may have occurred, the case will be presented to an investigation committee made up of BPMC board members (two physicians and one lay person) who will determine whether the case should be administratively closed, be referred to hearing or be dealt with through a non-disciplinary resolution such as an administrative warning. Completed investigations are presented to investigation committees once a month.

If it is determined by the investigation committee that the case should be administratively closed, the physician will receive a letter to that effect. If it is determined by the investigation committee that the case should proceed to hearing, BPMC will refer the case back to OPMC for the preparation of formal charges against the physician. If it is determined by the investigation committee that there is evidence of professional misconduct of a minor or technical nature, the committee can recommend:

• Administrative warning: A confidential, non-disciplinary warning given to the physician either in person, or in writing, outlining the problems identified and recommending appropriate remedial procedures.
• Educational consultations: A requirement that the physician meet with a medical expert or panel of experts to review problems and receive direction on how to correct them.

In egregious cases of professional misconduct, the investigation committee may decide that a physician poses an imminent risk to the public health and can recommend that the State Health Commissioner summarily suspend the physician from practice prior to the commencement of a formal hearing.

Hearing Committee

When the investigation committee finds that there exists substantial evidence that the physician committed professional misconduct, it will recommend that the case be referred for a hearing. In those cases, an OPMC attorney (prosecutor) will draft specific charges describing the substance of the alleged misconduct, and setting forth the material facts alleged. At this stage, the OPMC attorney and the physician’s attorney will have the opportunity to discuss a settlement of the matter via a consent agreement (similar to a plea bargain). Those cases which cannot be settled result in a hearing which, unless waived by the physician, is required to be completed within 60 days from the time the physician is served with the charges.

A hearing committee consists of two physicians and a lay person drawn from the Board for Professional Medical Conduct. An administrative law judge rules on evidentiary issues and the case is prosecuted by the OPMC attorney. Testimony and evidence are presented by attorneys for the state and the physician, and the hearing committee issues a final decision based upon a preponderance of the evidence.

The hearing committee may dismiss all or some of the charges, and may issue a penalty for any charge which it has sustained. Penalties which may be imposed by a hearing committee include:

• Censure and Reprimand (a public warning);
• Suspension of License - wholly, for a fixed period of time or until the physician completes therapy or a course of treatment, or partially, until the physician completes retraining in the area to which the suspension applies;
• Probation according to specified terms;
• Revocation of License;
• Fine of up to $10,000 per violation;
• Community Service for up to 500 hours;
• Education or Training

Every finding of professional misconduct is reported to the National Practice Data Bank and to the Federation of State Licensing Boards, and is posted on OPMC’s web site. It also becomes part of the physician’s New York State Physician’s Profile. A physician who is found guilty of professional misconduct may also be terminated as a Medicare and/or Medicaid provider, may be removed from HMO panels, and may have his or her hospital privileges terminated.

Physicians also should be aware that if they have a professional misconduct finding against them in another state, it is likely that the DOH will bring an OPMC case against that physician in New York. In this scenario, OPMC may seek the same penalty as the initiating state, but it may also seek a more severe penalty than the state where the matter was first adjudicated, even if the physician adheres to the orders of the initiating state regarding that state’s professional misconduct finding.

Appeals

Either side, OPMC or the physician, may appeal the decision of the hearing committee to an Administrative Review Board (“ARB”). The physician, but not OPMC, has the option of bypassing the ARB and appealing directly to the courts in what is called an “Article 78 proceeding”. The ARB is another arm of the Board for Professional Medical Conduct and is made up of five members of the Board (three physicians and two lay persons) who are appointed by the Governor for three-year terms. The ARB will review the appeal and issue a final order. The ARB may uphold the hearing committee decision in whole or in part, may reject the hearing committee decision and substitute its own decision, and may impose any penalty it deems appropriate, regardless of the penalty imposed by the hearing committee. If the physician still feels aggrieved after the ARB decision, he or she may then appeal the ARB decision to the New York State courts through an Article 78 proceeding. Due to a recent change in the law, appeals to the ARB or to the courts will no longer act to stay the imposition of the penalty imposed by the hearing committee.

All Article 78 proceedings brought by physicians, either after an ARB decision or in lieu of an ARB appeal, are heard by the Appellate Division of the State Supreme Court in Albany. In order to prevail in an Article 78 proceeding, the physician must convince the court that the hearing committee or ARB determination is irrational or not supported by substantial evidence in the record.

The Committee for Physician’s Health

The Committee for Physician’s Health (“CPH”) is an organization established by The Medical Society of the State of New York (“MSSNY”) to help the impaired physician obtain treatment and/or rehabilitation as an alternative to the disciplinary process. CPH helps physicians affected by substance abuse, addictions, mental health problems and cognitive disorders. It relies on a variety of in-patient and out-patient detoxification, psychiatric and/or and rehabilitation programs, in addition to providing self-help and peer support groups. It may also act as an advocate for the physician if OPMC has initiated its own investigation of the physician.

Physicians who voluntarily seek assistance from CPH will not be reported to OPMC by CPH as long as they agree to participate in the CPH program, stay with the program, are compliant with the program and do not present an immediate danger to the public.

About Abrams, Fensterman et al.

Currently Abrams Fensterman et al. is retained by over 50 physicians in Office of Professional Medical Conduct (“OPMC”) related investigations on various topics from the mundane to the exotic, including: mismanaged care, sexual contact and relations with patients, physician drug and alcohol abuse, psychiatric disabilities, billing irregularities, fraud, criminal conduct, hospital privileges limitations and a host of other issues. Our OPMC attorneys, Scott Einiger, Larry Kobak and Michael S. Kelton have combined experience of over 50 years in representing physicians in all aspects of the OPMC investigation. It is our firm’s goal to resolve all investigations as quickly as possible, through the use of thorough investigation, meticulous research and detailed preparation. To date, we have achieved a very high success rate in resolving OPMC matters quickly with positive outcomes for our clients. However, not every case can be resolved, and we are fully prepared to vigorously defend our physician clients at hearings whenever we are required to do so.