OPMC Physicians and Physician Assistants Defense
Representing New York physicians is one of our priorities. For over a decade, attorneys with Joseph Potashnik and Associates have been representing numerous physicians and registered physician assistants before the Office of Professional Medical Conduct (OPMC) in the State of New York at all levels of professional misconduct investigations and prosecutions.
First, let’s talk about what is professional misconduct. In a way, it is a generic term for a long list of offenses listed in the state Education Law. The list is extensive, covering about forty types of conduct considered unprofessional. If the physician is found to be in violation of any of them, he or she is subject to professional discipline. The most common types of professional misconduct we encounter in representing New York physicians are the following:
- Being convicted of any crime in any jurisdiction
- Disciplinary actions in other states
- Negligence or incompetence on one or more occasions
- Poor record keeping
- Fraudulent practice, which includes billing issues with insurance carriers
- Breach of boundaries with patients
- Making false statements on license renewal applications
- HIPAA violations
- Practicing out of scope of profession
- Allowing unlicensed personnel to perform duties that require medical license
- Failure to supervise staff
- Practicing under the influence of drugs or alcohol
- Being mentally or morally unfit
This list is not exclusive but it covers most issues ever encountered by physicians investigated by the OPMC.
What are the mechanics of the OPMC investigation
The professional misconduct investigation process in New York is a bit complicated, so here you will find the basic information on what happens during this time and how you should and should not act if you find yourself a target of the OPMC investigation.
Once a professional misconduct is filed against a New York physician, the OPMC will start the process to investigate the allegations. Depending on where the physician practices or is registered, the case will be forwarded to one of the OPMC regional offices either in New York City or upstate New York.
The OPMC will normally notify the physician, by mail or by telephone, that there is an open investigation. Often, they will request an interview or ask the physician to provide patient records for their review. Most physicians are aware that they are obligated to cooperate with the investigators, and that is true, especially when there is a document request. The licensee has an affirmative duty to cooperate with the disciplinary authorities and must provide any requested documentation. However, the physician has no obligation to agree to an interview. In fact, no physician should be speaking with any investigators prior to seeking legal advice. In some cases, these OPMC interviews could be productive, but in many other situations they are very dangerous for the physician.
The reason for that is that anything you say to the investigator will be used against you. Some physicians insist on agreeing to the interview because they believe that they have nothing to hide. However, this is generally unwise to subject oneself to questions in this environment, and for the most part, the scope of the interview will be much wider than what the physician initially thinks. Also, in the process of answering questions, the physician may and is likely to make statements which the investigators will use to develop new evidence for new charges.
We always insist on meeting with the client and then discussing the matter with the OPMC prior to advising the client whether this is advisable to meet with the investigators.
In those cases, where the physician does submit to an OPMC interview, the agency will prepare a Report of Interview and make it available to the physician.
If the initial OPMC investigation determines that there is sufficient evidence of professional misconduct, the case will be referred to the Investigation Committee. Members of an Investigation Committee are two doctors and a layperson. The committee reviews the case further and makes a recommendation on whether a disciplinary hearing is necessary. At that time formal disciplinary charges will be drafted. Depending on whether this decision by the Investigative Committee is unanimous or not, the charges may become public. In some cases, if it is considered that the physician in question represents serious and immediate risk to the public health, the committee may recommend that the physician’s license be summarily suspended before a hearing.
If the case goes to a hearing, a hearing committee of two doctors and a layperson is appointed. The hearing committee serves in the capacity of a judge, a trier of fact. Although, an administrative law judge is present at the hearing, the committee members will be the ones to decide on guilt or innocence. If the committee finds that misconduct has been committed, it will then decide on the penalties.
In New York, available penalties in medical disciplinary cases are: reprimand, probation, suspension, license annulment, license limitation, and license revocation. There could also be heavy monetary fines, community services, and retraining.
Most OPMC cases are resolved before they reach the hearing stage. An equivalent of a plea bargain in criminal proceedings, an application for consent order is the most common way of resolution of disciplinary matters. An application for consent order requires the physician to admit wrongdoing but allows avoiding more severe penalties.
May I Appeal a Hearing Committee Decision?
New York law provides for an administrative review of a determination made by the Hearing Committee. Either a physician or the OPMC may file an appeal with the Administrative Review Board. The ARB consists of three doctors and two laypersons.
The next step in the appellate process is challenging the hearing committee or the ARB decision in state court under CPLR Article 78. These cases are difficult to win because the licensee has the burden of proof that the agency’s decision was arbitrary and capricious.
If you are a New York physician who is under investigation by the OPMC, call our office now to speak with an experienced OPMC defense attorney!