FROM: NYS OFFICE OF PROFESSIONAL MEDICAL CONDUCT
INFORMATION FOR LICENSEES
The following information has been supplied by the NYS Office of Professional Medical Conduct to briefly describe New York State’s disciplinary process and the functioning of the Office of Professional Medical Conduct and the Board for Professional Medical Conduct.
ALL LICENSEES ARE URGED TO CONSULT LEGAL COUNSEL.
Background Information: The Office of Professional Medical Conduct (OPMC) is authorized pursuant to New York State Public Health Law Section 230, to investigate allegations of professional misconduct committed by licensees (physicians, including physicians practicing under a limited permit, medical residents, registered physician assistants and registered specialist assistants). Professional misconduct is defined in NYS Education Law Sections 6530 and 6531.
Complaints and Investigations:
OPMC is required by law to review every complaint it receives and may investigate on its own any suspected professional misconduct. Many complaints involve issues over which OPMC has no jurisdiction or authority. In these instances, a licensee is not aware of the complaint because they are closed administratively. In other cases, a complaint is investigated but insufficient evidence is found to support charges of misconduct, and the investigation is concluded.
When someone does file a complaint with OPMC that appears to involve possible misconduct, the licensee will be notified either by letter or through a phone call. Generally, unless specifically stated otherwise, a letter requesting patient records is an indicator that a complaint has been filed against a licensee and an investigation is underway. An investigator may call and say there is an investigation and ask for records or to discuss the matter.
State Public Health Law requires OPMC to keep confidential the names of any individuals who file complaints. The source of a complaint may not necessarily be the patient whose medical records are requested, but rather a relative, friend, or health care worker. Sometimes patient medical records are requested because a health facility has reported to OPMC, as required by law, that it has taken disciplinary action against a licensee.
While the law protects the identity of the complainant, it also preserves a licensee’s right to be heard. State Public Health Law requires that a licensee be given the opportunity to be interviewed by OPMC staff to provide an explanation of the issues under investigation if the matter is going to be referred to an investigation committee of the Board for Professional Medical Conduct (Board). This interview may be conducted in person or over the telephone, and the licensee may have an attorney present. Investigative staff will conduct the interview by asking and documenting responses to questions relevant to the issues under investigation. The law also allows the licensee to submit written comments or expert opinion(s) to OPMC at any time.
Although OPMC does not allow audio or video recording of licensee interviews, OPMC allows licensees to, at their own expense, retain the services of a shorthand reporter/notary public proficient in court stenography with experience in medical terminology to attend and stenographically record and transcribe the interview.
When a licensee or his counsel elect to avail themselves of this option, they agree to:
- arrange for this service and pay all associated costs;
- notify OPMC at least one week prior to the interview that a shorthand reporter and notary public will be present;
- provide OPMC directly with a properly notarized transcript of the interview within 30 days of the interview; and,
- notify OPMC of any inaccuracies in the transcript within 45 days of the interview.
In many cases, even if the matter does not result in a referral to an investigation committee, the licensee is contacted to respond to the issues in the complaint. Cases are not referred to the investigation committee when there is insufficient basis to proceed or the issues are out of its jurisdiction. Licensees contacted in such cases are advised by letter that the matter is closed.
When an investigation reveals that misconduct has occurred, the matter is presented to an investigation committee of the Board for review. Investigation committees are comprised of two physicians and a lay person. If a majority of the investigation committee concurs with the Director of OPMC that a hearing is warranted, the Director, after consultation with the Executive Secretary to the Board, shall direct counsel to prepare charges.
This committee also has other options available to it. If the committee determines that the licensee represents an imminent risk of danger to the public health, it can recommend that the Commissioner of Health take summary action against a licensee. The committee may also concur with the Director to close a case or issue a confidential, non-disciplinary administrative warning.
If the case proceeds to a hearing or the Commissioner of Health issues a summary order, another three-member committee, including two physicians and a lay member, is appointed by the Board Chair. The hearing committee serves as the trier of fact and may also ask questions. An administrative law judge is present to rule on legal issues and the hearing proceedings are recorded by a court stenographer. The state’s case is presented by a staff attorney and licensees generally are represented by counsel. At the hearing, evidence is presented and testimony may be given by witnesses for both sides.
A hearing committee may decide to dismiss some or all of the charges against a licensee. If the committee sustains charges, penalties can range from a censure and reprimand to revocation. The committee may also suspend or annul a license, limit his or her practice, impose probation, require supervision or monitoring of a practice, order retraining, levy a fine or require community service. Revocations, actual suspensions, and license annulments are immediately made public and penalties go into effect at once. Other penalties are not made public until the period for requesting an appeal has passed and, if there is an appeal, disciplinary action is stayed until there is a resolution.
Administrative Review Board for Professional Medical Conduct:
Either the OPMC or the licensee may request review of a hearing committee determination by the Administrative Review Board (ARB), a standing committee comprised of three physicians and two lay members of the Board. The ARB reviews whether or not the hearing committee’s determination and the penalty are consistent with the findings of fact and conclusions of law and whether or not the penalty is appropriate. Notices of appeal to the ARB must be filed within 14 days of the service of a hearing committee decision. Both parties have 30 days from the service of the notice of appeal to file briefs and another 7 days to file a response to the briefs.
There are no appearances or testimony in the appeals process. During an appeal, revocations, actual suspensions and annulments are not stayed. However, other penalties are stayed until the ARB acts.
Article 78 Proceeding:
The licensee may request a review by the court of either the hearing committee determination or the ARB determination. Appeals are filed with the New York State Appellate Division, 3rd Department.