Andrew M. Knoll, M.D., J.D. Cohen Compagni Beckman Appler & Knoll, PLLC ©andrewknoll2015

Disclaimer This presentation is for educational purposes only and does not constitute legal advice or counsel nor does it create an attorney-client relationship

Outline Goals Basic understanding of the professional conduct investigatory and prosecutorial system in New York Introduced to the varying agencies involved Buy insurance to cover legal defense costs Know what steps you can do to mitigate risk Audience demographics

Risk Factors for Professional Misconduct and Conduct Investigations Solo Practitioner Institutional practice SNF Hospital Controlled Substances Handle Prescribe Practice in NYS

License defense is a costly process Your malpractice insurance may or may not provide coverage May require purchase of a separate rider (MLMIC – Legal Defense Rider) Usually triggered by a formal governmental investigation (i.e., no coverage for hospital investigation) May only be covered if potential malpractice (e.g., no coverage for DWI) If possible, do NOT get a policy that only reimburses costs at the end of the investigation Carrier may usurp your choice of attorney What’s in your wallet? Insurance Coverage

Involved Agencies OPD (SED Office of Professional Discipline) BNE (NYSDOH Bureau of Narcotics Enforcement) NYSDOH (Department of Health) NYS Justice Center OMIG (Office of Medicaid Inspector General) Attorney General Medicaid Fraud Unit USDOJ (Department of Justice for the NDNY)

SED Office of Professional Discipline Regulates 55 of the 58 professions licensed under Title VIII of the Education Department Investigators have varying experience with healthcare and nursing in particular Significant variation from office to office All licensees except for physicians and PA/SAs Investigatory and prosecutorial arm of SED Decisions are made by the Board of Nursing

Rules of the Road 1. You have no rights whatsoever 2.Yes, Rule 1 is incredibly unfair, but you still have no rights whatsoever Substantive vs. Procedural Due Process 3.Agencies go after low hanging fruit 4.The process is like a snowball rolling down a hill; intervention early tends to be more successful (and less costly)

5.The process is a mixture of Kafka’s Metamorphoses and Alice through the Looking Glass Normal rules of legal advocacy do not apply There are no technicalities The investigator becomes the advocate Admit to the little to defend against the big (mea culpa defense) Akin to a military court martial: the judge, jury and prosecutor all work for the SED 6. Survival = Winning Rules of the Road, cont.

Bases for Professional Misconduct Negligence (ordinary, gross, incompetence, beyond the scope, delegation) Substance abuse (impaired or habitual) Referral discipline (crime, licensing) Abandonment and harassment Violations of healthcare laws and regulations Fee splitting and kickbacks Medical recordkeeping issues

Fraudulent practice Moral unfitness False advertising Undue influence Failure to respond to NYSED Failure to wear ID Arrears in child support Professional misconduct, cont.

Penalties for Professional Misconduct License revocation License suspension (actual or stayed) License limitation Probation Fines (up to $10,000) Censure & Reprimand CEU or retraining Public service (up to 100 hours)

Fallout of Professional Discipline Credentialing issues Payor disenrollment NPDB report Adverse publicity

The Investigatory Process OPD Letter demanding an interview May be rescheduled Interview itself Tape recorded Post Interview Submissions OPD investigator presents the case to a committee that includes a member of the applicable Board Determination made whether to close, administrative warning, or charges

If Charges are recommended Investigator will typically let the lawyer know, as a courtesy Lawyer will start negotiating with the prosecutor Informal Settlement Conference Merely to negotiate the penalty Senior member of OPD and Nursing Board member Final disposition takes months to a year

Hearings Adversarial administrative proceeding Judge, jury, and prosecutor all work for SED Typical rules of procedure and evidence do not apply The Record and recommendation of the Hearing Panel then reviewed by the Regents Review Committee (RRC) Licensee may appear (and may be required to appear) Only process when its Referral Discipline Very limited procedure – matter of minutes Final decision made by the Board of Regents

Impairment & Diversion BNE involved if diversion suspected Potential to be arrested Statewide Peer Assistance for Nurses (SPAN) or SED Professional Assistance Program (PAP) Requires license surrender, which may be ceremonial

Hospital & SNF Investigations Even less rights than with OPD and BNE Subjective (not political) No right to be represented by counsel Very dangerous because the results can trigger profound consequences

Mitigating Risk Charting Document as much as possible EMR problems Personal notes and the “Red” folder Document your thought processes Be extra careful when dealing with narcotics Self audit Seek early consultation from a knowledgeable attorney when problems arise Get out when the getting is good

Take Home Message Varying agencies are empowered to investigate NPs Take them all seriously Potential for profound ramifications Early involvement from knowledgeable counsel is key (before representation before the agency is required) To the extent possible, insure yourself for the legal costs

Questions? Andrew Knoll, M.D., J.D. Cohen Compagni Beckman Appler & Knoll, PLLC (315)