By: Mathew J. Levy, Esq. & Stacey Lipitz Marder, Esq.
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A physician’s license is her/her most valuable asset - without a license, a physician cannot practice medicine. It takes a great deal of time, sweat, tears and money to become a physician, and therefore any matter before the Office of Professional Medical Conduct (OPMC) should be taken very seriously.

The OPMC is the branch of the New York State Department of Health responsible for investigating all complaints of misconduct, coordinating disciplinary hearings that may result from an investigation, monitoring physicians whose licenses have been restored after temporary license surrender, and monitoring physicians, physician assistants, and special assistants placed on probation as a result of disciplinary action. The OPMC is an extremely powerful organization that has the ability to take away a physician’s license[1].

The OPMC has the ability to restrict a physician’s license in the event he/she engages in medical misconduct. Examples of medical misconduct include (but are not limited to): practicing fraudulently, practicing with gross incompetence or gross negligence; practicing while impaired by alcohol, drugs, physical or mental disability; being convicted of a crime; filing a false report; guaranteeing that treatment will result in a cure; refusing to provide services because of race, creed, color or national origin; performing services not authorized by the patient; harassing, abusing or intimidating a patient; ordering excessive tests; and abandoning or neglecting a patient in need of immediate care.

In the event a complaint is made to the OPMC, the OPMC is required to investigate the complaint. While some claims are dismissed immediately, others require OPMC to do some investigation. The OPMC investigator may call the physician who is the subject of the complaint to obtain additional information. In other instances, the OPMC sends a letter to the physician requesting records.

If a physician is contacted by an OPMC investigator, the physician should immediately obtain counsel with experience representing clients before the OPMC.  Physicians should never speak with an OPMC investigator without counsel present. Unfortunately, many clients, in the spirit of cooperation, attempt to “wing it” with the OPMC investigator, hoping for a quick closure which virtually never occurs. It is imperative that such response be thought through, as otherwise it can create additional hurdles to overcome at a later date. The OPMC investigator likely already spoke to the patient and staff members regarding this issue. Many physicians are concerned that hiring counsel would make them appear guilty in front of the OPMC. This is untrue, and the OPMC actually recommends that all physicians under investigation be represented by counsel. It is important to note that most matters involving the OPMC are covered under the physician’s malpractice policy. It is important for physicians to reach out to their malpractice representative in order to verify coverage.

Once the OPMC conducts its initial review, it may send correspondence offering the physician an interview before the OPMC investigator and a medical director. The physician and attorney will determine if an interview is advisable, and if the interview should be conducted in person or via telephone. The benefit of an interview is that it gives the physician the chance to tell his/her side of the story. It also gives the OPMC a chance to question the physician without a predetermined script. Physicians are not obligated to attend the interview and in some cases the interview can further damage the case.

If attendance at an interview would be in the best interest of the physician, proper preparation by the physician and attorney is essential, including strategizing and performing an internal investigation of the situation. The attorney may need to speak with a third party, such as a nurse, the biller or the front desk person. The attorney must also determine the strengths and weaknesses of the situation. Remember, an investigation may start out about inappropriate touching for example and wind up with a billing fraud allegation on the same patient. It is very important that the physician is completely candid and open with his/her attorney. Physicians should not leave out any details. Attorney-client privilege attaches to all conversations between the physician and his/her attorney as long as there is no third party in the room. The physician’s attorney should have at least one preparation session which will consist, at least in part, with a mock interview. The preparation is not the same as if the physician is going for a malpractice deposition.

If the interview will be conducted in person, it will be held at one of the OPMC’s locations throughout New York State. In attendance at the interview would be the physician, his/her attorney, the OPMC investigator and the medical director. Although the interview is not recorded, an OPMC representative would be in attendance to take notes.

Within 30 days from the interview, the OPMC will provide a Report of Interview (ROI) which is a summary of the interview. At that time, the attorney will likely want to submit a written submission to the OPMC responding to the ROI and further emphasizing and explicating the physician’s position in the matter. Additional information to explain questions where the physician’s answer was less than satisfactory can be an important part of a submission.

It often takes several weeks to several months for the OPMC to respond to a post interview submission. The response letter may state that the investigation has ended with no action being taken. If that occurs, the physician is a winner. On the other hand, the respond letter may state that the physician is being issued an Administrative Warning. This is non-disciplinary and kept private. The physician would appear with his/her attorney at an OPMC office and receive “the warning” as to what issues the physician needs to work on in the future. The only time the Administrative Warning can be used against a physician is if there is a similar problem with the OPMC in the future.

If the investigation is not closed, the physician’s attorney will get a phone call from a prosecuting attorney at OPMC who will inform the attorney of pending allegations and the charges and disciplinary action the OPMC is willing to agree to. This can run the gamut from surrender of license, suspension, probation, partially stayed suspension, fines, educational courses, or Censure and Reprimand. Any discipline agreed to is published on the OPMC website and placed in the National Practitioner Data Bank. This is public information which can be accessed by any third party. Such disciplinary action can negatively impact a physician’s managed care contracts, employment and hospital affiliations. The physician’s attorney can attempt to negotiate a lesser punishment. If both sides cannot agree, an Informal Settlement Conference (“ISC”) can be requested.  At an ISC both sides “informally” lay out their cases to a hearing officer from OPMC who is an attorney employed by the OPMC and a client that is a member of “the board”. There are no witnesses and no sworn testimony. The hearing officer and client on the board confer at the conclusion of the ISC and provide their recommendation. If the physician does not agree with the recommendation, the OPMC’s prosecutor will draw up charges against the physician which will result in a hearing, which is the equivalent of an administrative “trial”. There are witnesses and experts that testify under oath. A hearing officer, paid by the state, is the presiding judge. The hearing officer has no vote over the outcome, but does control how the hearing is run and therefore can influence the outcome. A lot of evidence that might not be allowed in a civil court may be allowed by the hearing officer.  Two medical specialists from the “board” and one lay person will act as the “jury”. They each get to ask every witness questions. Often, the panelists’ questions are more penetrating than the prosecutor’s questions, as the prosecutor is not a healthcare provider. Most matters before the OPMC do not reach this level, as over 90% of OPMC investigations are closed at the interview level.

Conclusion:

A matter before the OPMC can be very daunting for a  physician as the results can severely limit a physician’s livelihood. With a good team and proper preparation, the process can be manageable with favorable results for the physician.

Mathew J. Levy is a Partner of the firm and co-chairs the Firms corporate transaction and healthcare regulatory practice. Mr. Levy has particular experience in advising health care clients with respect to contract issues, business transactions, practice formation, regulatory compliance, mergers & acquisitions, professional discipline, healthcare fraud & billing fraud, insurance carrier audits including prepay and post payment review, litigation & arbitration, and asset protection-estate planning. You can reach Mathew Levy at 516-926-3320 or email: mlevy@weisszarett.com.


[1] The Office of Professional Discipline (OPD) is the branch of the New York State Education Department responsible for regulating the licenses of chiropractors, dentists and podiatrists (and other professionals excluding physicians, physician assistants and special assistants).