Professional Discipline for Physicians/OPMC/OPD Part II

Continued from Professional Discipline for Physicians (Part 1) by Jordan Fensterman and Michael Kelton (516) 328-2300.

6. If I am found guilty of professional misconduct by a Hearing Committee, am I out of options at that point?

No. After a Hearing Committee determination is handed down, a practitioner 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.

7. I have been asked by OPMC to send them a patient chart, but they did not provide a signed consent from the patient. Must I do so?

The short answer to this question is YES. OPMC is exempt from HIPAA regulations. You must provide OPMC with a specifically-identified patient chart when requested. In fact, it is professional misconduct to refuse to provide a requested chart to OPMC. 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.

8. I have been asked by OPMC to come in for an interview with their investigator and their medical coordinator. Am I obligated to do so?

NO, you are not required to go for an interview with an OPMC investigator and a medical coordinator. OPMC is required under the law to allow you the opportunity to be interviewed prior to moving forward with an investigation. In a majority of circumstances, going to the interview is recommended. However, prior to making this very important decision, consulting with an attorney knowledgeable in the OPMC process is highly recommended.

9. Does my malpractice insurance cover the legal fees I may incur during an OPMC investigation?

Your malpractice insurance carrier may cover some or all of your legal fees you may incur during an OPMC investigation. Coverage will depend on your individual policy and the nature of the allegations under investigation.

10. 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, on your New York State Physician Profile, and will be posted on the OPMC website. The information may also be reported to other licensing and accrediting agencies. You are required to report findings of misconduct on your NYS Physician Profile, and on your biennial license registration renewal.

11. Does a physician having an agreement or contract with a discount deal website such as Groupon, Living Social, Bloomspot, Yipit, 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.

For further information about Professional Discipline for Physicians/OPMC/OPD, please contact Michael S. Kelton or Jordan S. Fensterman or call our firm on Long Island at 516-328-2300, in Brooklyn at 718-215-5300, White Plains at 914-607-7010, Rochester at 585-218-9999, and Albany at 518-535-9477 to schedule an initial consultation.

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