Professional Discipline for Defense/OPMC/OPD Archives

Professional Discipline for Defense/OPMC/OPD

Does a physician having an agreement or contract with a discount deal website such as Groupon, Living Social, etc., constitute professional misconduct according to the Office of Professional Medical Conduct?

Maybe. New York State Education Law Article 131-A Section 6531 states in part that a physician may have their license revoked, suspended, annulled, or be subject to other penalties if they "...directly or indirectly requested, received or participated in the transference, assignment, rebate, splitting, or refunding of a fee for, or has directly requested, received or profited by means of a credit or other valuable consideration as a commission, discount or gratuity, in connection with the furnishing of professional care or service...". The agreements with the websites described above may or may not constitute professional misconduct pursuant to above referenced section depending upon the specific language and provisions of each agreement. Certain arrangements are permissible. Attorney Jordan Fensterman on behalf of certain physician clients worked closely with those in power in OPMC around 2010 to facilitate agreeable arrangements for physicians that would be permissible to enter in to with discount deal websites. The specifics of the allowable language discussed during those conversations helped shape the framework that went into place for how physicians can enter in to these arrangements.
If I am found guilty of committing professional misconduct, will this be publicized?

YES. If you are found guilty of any professional misconduct, information will appear in the National Practitioner Data Bank (doctors only), on your New York State Physician Profile (doctors only) and will be posted on the OPMC or OPD websites. The information may also be reported to other licensing/accrediting agencies, employers, and others. You are required to report findings of misconduct on your NYS Physician Profile (doctors only), and on your license registration renewals.
Does my malpractice insurance cover the legal fees I may incur during an OPMC or OPD investigation?

Your malpractice insurance carrier may cover some or all of your legal fees you may incur during an OPMC or OPD investigation. Coverage will depend on your individual policy and the nature of the allegations under investigation. Many malpractice insurance policies cover legal fees for administrative proceedings. Coverage is often $25,000 but may be up to $100,000 or more if you have purchased extra coverage.
I have been asked by OPMC or OPD to come in for an interview. In OPMC they informed me the interview would be with their investigator and their medical coordinator. Am I obligated to attend the interview?

NO, you are not required to go for an interview with an OPMC or OPD investigator. OPMC is required under the law to allow you the opportunity to be interviewed prior to moving forward with an investigation. In contrast, OPD is not required to offer the licensee an opportunity to interview. In a majority of circumstances, going to the interview is recommended as long as you are fully prepared in advance. However, prior to making this very important decision, consulting with an attorney knowledgeable in the OPMC or OPD process is highly recommended. One wrong statement during any interview can cause tremendous problems for a licensee.
I have been asked by OPMC or OPD to send them a patient chart, but they did not provide a signed consent form. Must I do so?

The short answer to this question is YES. OPMC and OPD are exempt from HIPAA regulations. You must provide OPMC and OPD with a specifically identified patient chart when requested. In fact, it is professional misconduct to refuse to provide a requested chart to OPMC or OPD. However, when OPMC requests a comprehensive review of your patient records, they must provide justification to demonstrate that the comprehensive review is reasonably related to a pending investigation. You may be able to avoid turning over records if the request is a general comprehensive review request.
If I am found guilty of professional misconduct by a Hearing Committee in an OPMC or OPD matter, am I out of options at that point?

No. After a Hearing Committee determination is handed down, a practitioner or licensee may appeal to the Administrative Review Board. An unsatisfied practitioner may thereafter appeal that determination to the New York State Courts. However, a practitioner may only appeal to the NYS Courts after all of his administrative remedies have been exhausted.
What penalties may be imposed against a physician or physicians assistant if OPMC determines that he is guilty of professional misconduct? What penalties may be imposed against nurses, dentists, pharmacists and other licensee’s if OPD determines they are guilty of professional misconduct?

For OPMC, in the least severe cases (where the violation is deemed to be "minor" or "technical" in nature), the penalty may be as small as an Administrative Warning (i.e., a non-disciplinary notice which outlines the problems that have been found and recommendations for a remedial course of action). An administrative warning is not discoverable by others and is not published anywhere online.

For OPMC, if things evolve to the point where a professional is going to be charged with misconduct, a lawyer for OPMC becomes involved. At that point there is often an opportunity to negotiate a settlement to avoid going to a hearing. If a hearing is unavoidable, our attorneys will represent and defend our physician clients vigorously at every stage of the hearing process. If a Hearing Committee finds a physician guilty of professional misconduct, the penalties are often severe. However, our attorneys have a very successful track record of getting charges dismissed at OPMC hearings.

Any charges that are sustained, either via settlement or after a hearing, will be reported to the National Practitioner Data Bank and reflected on the individual's Physician Profile on the Department of Health's website. The least severe penalty when one is found guilty of professional misconduct is a Censure and Reprimand (i.e., a severe warning that is considered misconduct and is published for the world to see). A Censure and Reprimand may also include the imposition of required community service (up to 500 hours) and continuing medical education (CME) classes. Fines of up to $10,000 per offense can be imposed by OPMC.

A Hearing Committee may also decide that probation is necessary. Probation may include certain limitations/restrictions being placed on a practitioner's ability to practice medicine. Probation may be imposed for a set period of time, or it may last until certain conditions have been met by the practitioner. The next level of penalty for more serious professional misconduct is a stayed suspension of a practitioner's medical license. A stayed suspension is the legal equivalent of probation. The next level is an actual suspension of a license. When a practitioner's license is actually suspended, he or she is not allowed to practice medicine for the duration of the suspension. A suspension may be for a certain length of time, or it may be for an indefinite period of time lasting up until criterion laid out by the Settlement Agreement or by the Hearing Committee after adverse determination in a hearing are satisfied.

For the most serious misconduct, OPMC has the power to permanently revoke the physician's medical license. For OPD, the range of penalties is very similar for OPD to those described above for OPMC. However, in the OPD process there is an interim stage that does not exist in the OPMC process. For OPD there is a stage called the Informal Settlement Conference (“ISC”). In the ISC’s a licensee’s counsel and the counsel for the NYSED OPD present their cases to a member of the Board of Regents and a ‘facilitator’. The Board of Regents member hears the arguments and then makes a determination of what they believe is an appropriate settlement. The settlement may or may not constitute professional misconduct. A licensee then has a short period of time to determine if they would like to accept the settlement as proposed or if they prefer to proceed forward to a formal disciplinary hearing. There is also a possibility of something in the OPD world called a Violations Committee Statement (“VCS”). A VSC is similar to a formal settlement Consent Agreement, the distinction being that with VCS’s they are not posted on OPD’s website for the public to see and they are generally for a small monetary penalty (i.e., $500) and no other penalty.
Who are the people at OPMC and OPD who investigate complaints?

OPMC investigators are generally healthcare professionals such as registered nurses or individuals with investigatory backgrounds such as former police officers and insurance investigators. OPD investigators are generally individuals with backgrounds working for other State agencies conducting audits and/or investigating conduct.
How many complaints must be made before OPMC or OPD begins an investigation?

One. A single complaint will trigger a surface level analysis of the situation in question. Under the law, the OPMC and OPD are required to look into each and every complaint that is filed.
Who can make a complaint to OPMC or OPD?

Short answer: Anyone. Disgruntled patients or clients, family members of patients or clients, insurance companies, disgruntled current or former employees, jealous competitors, hospitals, and state agencies are the most frequent sources of OPMC complaints. OPMC also monitors malpractice settlements and news sources for potential professional misconduct.
What is the Office of Professional Discipline (“OPD”)?

OPD is a branch of the New York State Department of Education that is responsible for investigating and prosecuting complaints brought against over fifty licensees in New York.
What is the Office of Professional Medical Conduct (“OPMC”)?

OPMC is a branch of the New York State Department of Health that is responsible for investigating and prosecuting complaints brought against physicians and physicians assistants.