Understanding Professional Medical Conduct: Misconduct and Board Initiatives
Delve into the realm of professional medical conduct, exploring the definition of misconduct and the processes involved. Learn about key components, governing statutes, and types of serious misconduct such as negligence, incompetence, sexual misconduct, and impairment. Discover the mission of the Board for Professional Medical Conduct and how it aims to protect the public and uphold the integrity of medical practice.
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Presentation Transcript
Office of Professional Medical Conduct Board for Professional Medical Conduct Office of Professional Medical Conduct Howard A. Zucker, M.D. J.D., Commissioner New York State Department of Health June 11, 2025 Arthur S. Hengerer, M.D., Chair Robert Catalano, M.D., MBA, Executive Secretary Board for Professional Medical Conduct Paula M. Breen, Acting Director Office of Professional Medical Conduct
June 11, 2025 2 What is misconduct? Today s Discussion Topics The OPMC process Updates & new initiatives The Future
June 11, 2025 3 BOARD & OFFICE OF PROFESSIONAL MEDICAL CONDUCT - MISSION Protect the public from professional medical misconduct Provide Physicians and Physician Assistants due process Assist the Department of Health and the Commissioner as needed
June 11, 2025 4 KEY COMPONENTS Arthur S. Hengerer, M.D. Chair Robert Catalano, M.D., MBA Executive Secretary THE BOARD James F. Horan, Esq. Chief Administrative Law Judge OPMC LEGAL Paula M. Breen Acting Director Henry Weintraub Chief Counsel
June 11, 2025 5 THE PROFESSIONAL MEDICAL CONDUCT PROCESS Governing Statutes Education Law 6530 and 6531 Public Health Law 230
June 11, 2025 6 SERIOUS MISCONDUCT About 70% of all Board actions: Negligence / Incompetence Impairment Sexual Abuse Fraud Inappropriate Prescribing
June 11, 2025 7 SERIOUS MISCONDUCT Negligence: failure to exercise reasonable/prudent care Incompetence: lack of skill or knowledge necessary Standard of practice Not based upon outcome or intent More than one occasion Gross Negligence/Incompetence: egregious or conspicuously bad Inappropriate prescribing
June 11, 2025 8 SERIOUS MISCONDUCT Sexual Misconduct Impairment Practicing the profession while impaired Being a habitual user of alcohol, narcotics, barbiturates, amphetamines, hallucinogens or drugs having similar affects Having a mental, physical, or other condition that impairs a licensee s ability to practice
June 11, 2025 9 SERIOUS MISCONDUCT Fraud (false representation with intent to mislead): Excess, unjustified tests Billing (visits/tests not performed; upcoding) False representations on: Applications for licensure or registration Credentialing/ application(s) Employment application(s) Filing false report
June 11, 2025 10 OTHER MISCONDUCT Criminal conviction Delegating care to unqualified persons Other state board action Lack of informed consent Violating patient confidentiality Failure to provide records Failure to maintain adequate records Guaranteeing a cure Failing to comply with law Failure to use barrier precautions for infection control Abandoning a patient in need of immediate care
June 11, 2025 11 BOARD FINAL ACTIONS BY MISCONDUCT TYPE 30% 27% 27% 25% 25% 25% 23% 22% 20% 20% 18% 17% 2016 15% 15% 2017 12% 11% 10% 2018 9% 10% 8% 8% 6% 5% 4% 5% 3% 2% 0% Impairment Negligence/ Incompetence Sexual Misconduct Inappropriate Prescribing Fraud Order Violations Other
June 11, 2025 12 REPORTING RESPONSIBILITIES Hospitals and health-care professionals must report to OPMC: All incidents of suspected misconduct by physicians, physician assistants and specialist assistants Reduction or revocation of hospital privileges Conviction of a crime Written report describing events Faxed to OPMC at (518) 402-0745 OPMC will fax back an acknowledgement Note Note: : Suspected misconduct by nurses, nurse practitioners, nurse anesthetists, technicians, and other non-physicians should be reported to the State Education Department
June 11, 2025 13 REPORTING RESPONSIBILITIES - ALTERNATIVES If a physician or hospital administrator cannot determine whether a situation must be reported as possible misconduct: Send a written request to the OPMC without names asking for opinion Written response is binding Submit details to: Hospital peer-review committee Local medical or osteopathic society Committee or society must report to OPMC
June 11, 2025 14 REPORTING MYTH Referring a physician who may be impaired to CPH satisfies the Public Health Law requirements to report to OPMC ?
June 11, 2025 15 The Professional Medical Conduct Process
June 11, 2025 THE PROFESSIONAL MEDICAL CONDUCT PROCESS 16 Governing Statutes Public Health Law 230 Education Law 6530 & 6531 Components Complaints Investigations - Medical Expert Review Investigation Committee Hearings Appeals
June 11, 2025 THE PROFESSIONAL MEDICAL CONDUCT PROCESS 17 Complaints Investigation Investigation Committee Hearing Committee Appeals (Administrative Review Board)
June 11, 2025 18 COMPLAINTS Complaint OPMC Review Jurisdiction? If proven possible misconduct? Close No Yes Assign to Regional Office Assign to Central Office Investigate
June 11, 2025 19 2018 SOURCE OF COMPLAINTS (9,014) Insurers 7% NYS MD Profile 12% Other 0.1% Medical Malpractice 3% Public 51% Providers 4% Out of State 8% Government 15%
June 11, 2025 20 INVESTIGATIVE ACTIVITIES Medical Record review Interviews Closed (Complainant / Subject / Witnesses) QA records OR Investigation Committee DOH and other data Expert Opinions
June 11, 2025 21 INVESTIGATIVE COMMITTEE RECOMMENDATIONS Closure Further investigation - Comprehensive Medical Review Administrative Warning Summary Suspension Hearing - Consent parameters in lieu of Hearing
June 11, 2025 22 HEARING COMMITTEE Consists of 3 Board members 2 physicians, 1 public member Determines innocence/guilt Determines penalty imposed / actions to be taken (e.g. monitoring) Standard of Proof: the preponderance of evidence
June 11, 2025 23 BOARD DECISIONS Censure & reprimand Suspension (actual/stayed) Probation (monitoring) Limitation of license Revocation Clinical competency exam Monetary fine Education/Training Community service Dismissal
June 11, 2025 24 APPEALS Administrative Review Board (5 Board members, including 3 physicians) Judicial Review - Article 78 (Appellate Court)
June 11, 2025 25 ADMINISTRATIVE REVIEW BOARD DECISIONS 2016 12 2017 17 2018 6 ARB Decisions Determination Upheld 12 16 6 Determination Not Upheld 0 1 0 Penalty Increased 1 9 3 Penalty Decreased 4 3 0 Same Penalty 7 5 3 Respondent Initiated Appeal 5 4 3 Department Initiated Appeal 4 9 2 Both Parties Initiated Appeal 3 4 1
June 11, 2025 26 FINAL ACTIONS BY PENALTY 78% 79% 75% 80% 70% 60% 2016 2017 2018 50% 40% 30% 15% 14% 20% 14% 7% 8% 10% 5% 1% 1% 1% 0% Serious Sanction* Censure & Reprimand Order of Conditions Dismissal Serious sanction includes revocation, disciplinary and non-disciplinary surrenders, suspensions, and restrictions/limitations.
June 11, 2025 27 FINAL ACTIONS BY SPECIALTY 30% 28% 27% 27% 27% 26% 26% 25% 20% 2016 2017 2018 14% 15% 13% 13% 13% 11% 11% 10% 10% 9% 10% 8% 7% 7% 5% 5% 5% 3% 0% Internal Medicine Family Practice Psychiatry OB/GYN Anesth. Surgery All Other
June 11, 2025 28 OPMC ACTIVITY 2018 Investigations Opened 4,133 Investigations Closed 3,861 Licensees Referred for Charges In State: 62 Referral: 148 Final Board Actions 283
June 11, 2025 29 THE PHYSICIAN ROLE IN THE PMC PROCESS Peer review is the cornerstone Physician participation: Emphasizes patient safety Ensures objectivity & fairness of process
June 11, 2025 30 OPPORTUNITIES FOR PHYSICIAN PARTICIPATION Board Member Medical Coordinator Medical Expert Monitor
June 11, 2025 31 PHYSICIAN BOARD MEMBERS Investigation Committee Hearing Committee Restoration Committee Administrative Review Board Committee to direct medical, psychiatric or clinical competency evaluation
June 11, 2025 32 MEDICAL COORDINATOR Assists in OPMC reviews & investigations Conducts initial review of allegations & facts Interviews subject licensee Develops questions for external expert(s)
June 11, 2025 33 PHYSICIAN MEDICAL EXPERT Ensure objective review of information Medical records Reports of interviews Other relevant materials Provide written report Based solely on information provided Texts & authoritative reference materials Did licensee deviate from minimally accepted standard of care and to what degree? Testify at hearing
June 11, 2025 34 WHO CAN BE A MEDICAL EXPERT? Qualifications: Currently registered as MD, DO, or PA in NYS Currently in active practice; 6 years active Certification by a recognized Board American Board of Medical Specialties (ABMS) American Osteopathic Association Board (AOA) National Commission on Certification of Physician Assistants (NCCPA) Candidates with no record of disciplinary action
June 11, 2025 35 MEDICAL EXPERTS Reimbursement Time reviewing case and writing report $200/hour Pre hearing consultation with DOH attorney (may be by telephone) $500/hour Testimony $2,000/day Travel expenses Transportation, lodging and meals reimbursed at State rate
June 11, 2025 36 MEDICAL EXPERTS Interested Physicians should contact: Judith Joyce Expert Program Coordinator Phone - Fax - Email - (518) 408-0209 (518) 402-0145 OPMC@health.ny.gov
June 11, 2025 37 PHYSICIAN MONITOR Assist OPMC in monitoring the care of licensees on probation Review records Discuss patient care issues Goal: prevent recurrence of misconduct
June 11, 2025 LICENSEES MONITORED BY PHYSICIAN MONITORING PROGRAM 38 1000 900 2016 2017 2018 800 916 953 909 700 600 500 400 495 480 300 482 200 100 0 Impairment Non-Impairment
June 11, 2025 39 WHY SHOULD A PHYSICIAN PARTICIPATE? Promote patient safety Ensure objectivity and fairness of process Protect integrity of profession
June 11, 2025 40 Updates & New Initiatives
June 11, 2025 41 PRESCRIPTION MONITORING PROGRAM (PMP) Public Health Law 3331 and 3333 All controlled substance medications dispensed by pharmacies and practitioners must be reported to the New York State Department of Health Bureau of Narcotic Enforcement (BNE)
June 11, 2025 42 PMP UTILIZATION Before I-STOP 2/16/2010 through 8/26/13 19,000 users performed 950,000 searches for 202,714 patients After I-STOP Number of Unique Users Searching Number of Unique Patients Searched 5,974,020 4,704,346 4,564,881 4,490,047 3,735,336 Number of Searches 16,810,573 18,145,771 18,364,788 18,739,213 14,284,347 Year 2014 2015 2016 2017 2018* *Data as of September 30, 2018 68,291 69,598 70,722 73,322 68,402 Over 47 searches have been handled per second
June 11, 2025 USE OF PRESCRIPTION MONITORING PROGRAM (PMP) DATA 43 BNE Investigations Lost/stolen prescriptions; provided to Medicaid & available online. Office of the Professions & OPMC Education & Outreach by BNE & others Analysis for trends, cluster detection
June 11, 2025 44 New York State Crude Rate of Patients Prescribed Opioid Analgesics From Five or More Prescribers Dispensed at Five or More Pharmacies per 100,000 Population
June 11, 2025 45 Commonly Prescribed Controlled Pain Relievers January 1, 2009 through December 31, 2017 1,400,000 Tramadol scheduled to CIV, Hydrocodone scheduled to CII 1,200,000 1,000,000 Prescriptions 800,000 600,000 Tramadol required reporting February, 2013 400,000 200,000 0 1Q09 3Q09 1Q10 3Q10 1Q11 3Q11 1Q12 3Q12 1Q13 3Q13 1Q14 3Q14 1Q15 3Q15 1Q16 3Q16 1Q17 3Q17 Quarter/Year Codeine 3 Hydrocodone Oxycodone Tramadol Fentanyl
June 11, 2025 46 PRESCRIPTION DRUG REFORM ACT PART A I-STOP PART B Electronic Prescribing PART C Controlled Substance Schedule Updates PART D Prescription Pain Medication Awareness Program PART E Safe Disposal Program
June 11, 2025 47 DUTY TO CONSULT Practitioners must consult the registry in most cases prior to prescribing or dispensing any controlled substance listed in Schedule II, III, or IV Exemptions protect patient access to needed medications Practitioners may: authorize a designee to consult the registry on his or her behalf Consult the registry prior to prescribing or dispensing a controlled substance listed in Schedule V
June 11, 2025 48 PHYSICIAN ACCESS TO PMP Physician must have an active account to access DOH s Health Commerce System To obtain an account, go to: https://commerce.health.state.ny.us/ And Click Once your account is created, you can navigate back to https://commerce.health.state.ny.us/ and login to the PMP.
June 11, 2025 49 ELECTRONIC PRESCRIBING DOH has promulgated regulations for electronic prescribing of controlled substances (EPCS) Regulations are found at 10 NYCRR - Part 80
June 11, 2025 50 PRESCRIPTION PAIN MEDICATION AWARENESS PROGRAM Workgroup established by PHL 3309-a Practitioners, pharmacists, consumer advocates, & law enforcement agencies Issue recommendations for CME for practitioners & pharmacists on pain management issues Help DOH educate the public about Controlled Substances Provide guidance on I-STOP implementation
