Office of Professional Medical Misconduct’s enforcement process starts with a complaint instituted by the public, a professional or government group, a mandatory reporting process, or another source of alleged wrongdoing, including whistleblower reports. The complaint is analyzed by OPMC, which determines whether the complaint falls within the purview of the Board or needs to be referred to a different agency. If it is correctly filed, then the OPMC decides if more information is needed, or whether the nature and detail of the complaint warrants immediate investigation by the relevant district office. If the complaint involves medical care provided by a physician, then the medical records in question are collected and reviewed by a qualified medical consultant.
If the complaint involves a minor violation of the law, which might include dispensing violations or noncompliance with mandatory turnover of patient records, then the physician may be cited and fined, or given the opportunity to become compliant. Certain complaints may be mediated. The OPMC consults with a Deputy Attorney General to evaluate complaints.
After the initial review and determination of a violation, the Board district office investigates and enlists a Deputy Attorney General to work with the Board investigator. A determination is made that there is insufficient evidence to pursue the complaint or a charge is filed against the offending doctor.
In summary, the potential actions for the file are:
- Closure – the complaint will remain on file for one year if there is no evidence of a violation.
- Contingent closure – the complaint is closed, but remains on file for five years because there is evidence that the complaint had merit, but not enough evidence to support further action.
- Referred to the Attorney General’s Health Quality Enforcement Section for a determination about whether disciplinary action is merited.
- Referred to another agency of department for further action. This may include criminal prosecution by a district attorney.
Once the complaint is referred to the Attorney General, it may result in an administrative citation and fine for minor infractions of the Medical Practice Act. However, if the legal standards are met for a serious violation, a Deputy Attorney General will bring formal charges. Prior to the filing of the Accusation, the OPMC may direct the Attorney General’s office to order a competency or psychiatric examination of the physician, nurse or other licensee. Absent a determination that the physician is not competent, it is at this point that the parties may negotiate a settlement. If no resolution is reached, then the matter will proceed to an administrative hearing.
An Administrative Law Judge holds a hearing and renders a proposed decision. A Medical Board panel reviews this proposal and determines whether to: accept the decision as proposed; accept the decision, but decrease the proposed penalty; or, accept the decision and increase the proposed penalty. If the Medical Board panel makes the decision to increase the penalty, it may only do so after reviewing the entire record from the administrative hearing. The physician or practitioner who is being penalized may submit written arguments or be heard in oral argument.
A first appeal may be made to the Medical Board of NYS within thirty (30) of the determination. If this appeal is not successful, then the subject of the ruling may appeal to the Superior Court, the District Court of Appeal, and finally the New York Supreme Court. If no appeal is taken, the physician may petition the Medical Board of New York for the reinstatement of a revoked license, reduction of any imposed penalty, or early termination of a probation period, depending upon the penalty that was imposed. Each of these petitions are guided by specific timelines.
If contacted by a Medical Board of New York a investigator or analyst, you should seek legal representation immediately. Early intervention by an attorney with experience defending doctors is crucial to the successful resolution of an investigation or proposed disciplinary action.
The healthcare lawyers at Doreen J. Shindel and Associates provide doctors, nurses and practitioners with comprehensive legal advice and representation. In addition to matters before the Medical Board of New York, our healthcare attorneys represent and advise physicians on a wide range of matters, including:
• Medicare RAC Audit, Appeal & Fraud Defense
• Medical Audit, Investigation and Fraud Defense
• Office of the Inspector General Exclusions (OIG)
• Physician Contracts
• Medical Peer Review & Credentialing
• Healthcare Provider Contracts
• Employee discrimination
• NY medical malpractice
• NY personal injury
• New York State education law
• NYS licensure violations
• NYS professional misconduct
• NYS contractual issues
• NYS breach of contract
• NYS and local town employment
• Represents employers & employees in unemployment benefit hearings.