Every physician assistant (PA) must be aware of the menacing presence of the Office of Professional Medical Conduct (OPMC) areas of inquiry. What can OPMC investigate about their PA free-time activities in their own homes? Unfortunately, OPMC says as licensed professionals how PAs conduct their lives is at all times within OPMC purview.

 

The Reach of the OPMC

The OPMC has extensive regulatory powers. The New York State Department of Health says, “OPMC investigates complaints about physicians, physician assistants and specialist assistants and monitors practitioners who are subject to Orders of the State Board for Professional Medical Conduct.” The OPMC is the agency that imposes professional discipline upon PAs for misconduct.

Misconduct, however, as aggressively but vaguely defined by OPMC can be any type of inaccurate report or application, a mere accusation of criminal misconduct, substance use, an inappropriate prescription, marital or family difficulties, psychological problems, financial indiscretion, and any “inappropriate” behavior, relationships, or Internet postings. Potential areas of OPMC inquiry are indeterminate.

 

Professional Life

Every PA is subject to constant scrutiny. OPMC investigates not only complaints of negligence or malpractice but also employment matters of discrimination, termination, co-worker relations, alleged sexual harassment, hostile work environments, and the like. The scrutiny extends to nonclinical areas of academic study, secondary employment, or to any conduct allegedly “immoral” or “inappropriate” even during voluntary service.

 

Personal and Family Life

Use of alcohol with “inappropriate” behavior with no effect on any patient might set off an OPMC investigation. Any use of illegal drugs or improper use of legal drugs also might be cause for license revocation. A charge of driving while intoxicated is a quick referral to the OPMC. Failure to pay alimony or child support on time, subjection to a restraining order, and complaints of harassment or stalking all have been subject matters of OPMC investigations and actions.

The electronic age has increased the scope of OPMC investigations to cover “inappropriate” e-mails, texting, social website postings, and blogs. Bankruptcy, delinquency judgments, and student loan defaults may be evidence of misconduct in OPMC eyes.

 

All Aspects of Life

Essentially, the OPMC may investigate all aspects of a PA’s life for misconduct calling for disciplinary action. If another state medical disciplinary authority revokes a PA license or imposes any other discipline, OPMC will consider the New York PA license for reciprocal treatment. Dual relationships with patients or their family members, what the OPMC sees as “boundary violations,” have been deemed professional misconduct.

 

Constitutional Concerns

The United States Constitution guarantees basic due process protections to all citizens; nevertheless, OPMC has denied PAs their most basic constitutional rights. The OPMC argues that as licensees PAs must be subject to ethical standards higher than those for citizens generally to satisfy public safety demands for expeditious and comprehensive review. Any governmental system with incomplete checks and balances can rationalize a maximal number of PA license suspensions and revocations as necessary for public safety. The State of New York should reconsider and revise its flawed investigatory and disciplinary procedures and aim to protect the public without unconstitutional tactics and results. Failure to correct such abuses will continue to deprive New York PAs of constitutional due process rights.

 

Denial of Right to Counsel

The OPMC position is that it need not adhere to state and federal law on the right to counsel. OPMC routinely fails to advise targeted PAs of their right to assistance from attorneys. OPMC investigators on receipt of complaints misinform physicians of their right and authority to interview practice staff immediately. At this point, experienced counsel should be present to protect the PA’s right against involuntary self-incrimination, yet OPMC purposefully denies PAs under investigation access to counsel in accord with their constitutional rights.

Another clearly-settled legal right is that, after notice of representation personally or through counsel, there should be no further OPMC direct contact with the represented party without counsel’s presence or knowledge and assent. Some OPMC offices insist that without correspondence signed by the disciplinary respondent investigators will continue direct contacts with additional questioning about the facts at issue.

 

Denial of Right to Speedy Trial

There is no statute of limitations on OPMC investigations. PAs face the threat of investigation and legal action for matters that occur decades ago. OPMC recently pursued a PA on charges of misconduct allegedly occurring 13 years previously. Fundamental fairness demands a set time period after which PAs need not fear prosecutions for acts or omissions in the remote past unfairly difficult to defend. Evidence disappears, witness memories fade, and witnesses themselves disappear, leaving the PA under investigation unable to recall for defense details of the course of patient care.

Moreover, as a matter of public policy there is no rationale for extending a physician’s exposure to administrative punishment beyond that to civil liability for medical malpractice. If a patient must pursue a right to legal redress within a specific period of time, there is no need to extend that period for disciplinary action against the treating PA.

 

Right to Discovery of Evidence

The OPMC may retrieve medical records from the office of the PA under investigation, from hospitals, or from previous medical employers without the PA’s knowledge or consent. If the hospital or former employer denies the PA access to the records, there remains no way for the PA to review the records before the fact-finding interview except by access to those obtained by the OPMC.

No PA can participate fairly in the OPMC fact-finding interview process without copies of pertinent medical records or a reasonable opportunity to review them well in advance of any fact-finding proceeding. The OPMC, however, provides the PA merely a supervised records review, severely limiting the right to review of the events in question. Some cases cover many days, even months, of care and treatment with patient charts hundreds of pages long with many diagnostic test results. Adequate review of such cases is impossible in a single short session. OPMC must provide every PA under investigation with a complete copy of all records to which the PA lacks independent access.

 

Right to an Impartial Hearing

There is an actual need for separation between OPMC and the administrative law judges who preside over medical disciplinary cases. In Troy as a case in point, the judges and the OPMC share office space in an environment that encourages ex parte communications. Such separation is a necessary confirmation of an independent and objective judiciary.

 

Additional administrative process reform measures should include

  • Promulgation of policies and procedures for assignment of judges and hearing panel members to particular cases.
  • Judicial authority to order pre-hearing and intra-hearing discovery.
  • Formal recognition of the fundamental OPMC obligation to produce exculpatory evidence.
  • Establishment of OPMC burden of proof by clear and convincing, not mere preponderance of, evidence.
  • A clear definition of “moral unfitness” * or removal of the term from the statute.

 

Conclusions

OPMC takes the position that the State of New York bestows upon the PA not an earned constitutional right but an official privilege to practice medicine subject to OPMC oversight into any area of professional or personal life. OPMC sanctions range from warnings to permanent license revocations.

Far too few PAs are aware of the gross inequities that would befall them as OPMC targets. Increased awareness may bring in increased involvement. With the support of organized medicine, physicians and PAs can make the OPMC process fair to both the complainants and respondents.

In the meantime, until the proposed OPMC reforms become realities, Joseph Potashnik & Associates will continue their effective services to clients facing investigations. Potashnik attorneys have more than 50 years of combined experience as litigators building a track record of winning challenging and complicated cases against government overreach. Call 1-917-473-1890 today to schedule a free consultation.