1. Board for Professional Medical Conduct &
Office of Professional Medical Conduct
Howard A. Zucker, M.D. J.D., Commissioner
New York State Department of Health
Robert A. Catalano, M.D., MBA
Executive Secretary, Board for Professional Medical Conduct
Keith W. Servis, Director
Paula Breen, Deputy Director
Office of Professional Medical Conduct
May 4, 2010

2. Today’s Discussion Topics
What is misconduct?
The PMC process & avoiding misconduct
Prescribing issues
Looking ahead

3. Board & Office of Professional Medical Conduct - Mission
Protect the public from professional medical misconduct
Ensure that physicians have due process
Assist the Department of Health and the Commissioner in creating health care policy
Mission
Protect the public from professional medical misconduct
Provide physicians* with due process rights
Assist the Department of Health and the Commissioner with creating public health policy
Physicians include physician assistants, specialist assistants and unlicensed resident physicians

4. Chief Administrative Law Judge
KEY COMPONENTS
THE
BOARD
Arthur S. Hengerer, M.D.
Chair
Robert Catalano, M.D., MBA
Executive Secretary
OPMC
LEGAL
Keith W. Servis
Director
Henry Weintraub
Chief Counsel
James F. Horan, Esq.
Chief Administrative Law Judge

5. The Professional Medical Conduct Process
Governing Statutes
Education Law §6530 and §6531
Public Health Law §230
5 key activities:
Receives Complaints
Investigations - Medical Expert Review
Investigation committee
Hearings
Appeals

6. Serious Misconduct
Negligence: failure to exercise reasonable/prudent care
Gross Negligence: so egregious/grave consequences
Incompetence: lacking skill or knowledge necessary
Gross Incompetence: so substantive/grave consequences
Inappropriate prescribing

7. Serious Misconduct Sexual Misconduct Impairment
Practicing the profession while impaired
Being a habitual user
Having a psychiatric or other condition that impairs licensee’s ability to practice
Fraud: intentional misrepresentation/concealment
Excess, unjustified tests
Billing: visits/tests not performed; upcoding

8. Other Misconduct Criminal conviction Other state board action
Filing false report
Violating patient confidentiality
Failure to maintain adequate records
Failure to use barrier precautions for infection control
Delegating care to unqualified persons
Lack of informed consent
Failure to provide records
Guaranteeing a cure
Failing to comply with law
Abandoning patient in need of immediate care

9. Board Final Actions
by Misconduct Type

10. The Professional Medical Conduct Process

11. The Professional Medical Conduct Process
Complaints
Investigation
Investigation Committee
Hearing Committee
Appeals (Administrative Review Board)
5 key activities:
Complaints
Investigations - Medical Expert Review
Investigation committee
Hearings
Appeals

12. Complaints Complaint OPMC Review Close Assign to Assign to
Jurisdiction?
If proven – misconduct?
Close
Assign to
Central Office
Assign to
Regional Office
Investigate

13. 2017 SOURCE OF COMPLAINTS (9,699)

14. Investigative Activities Investigation Committee
Medical Record review
Interviews - Complainant/Subject/Witnesses
QA records
DOH and other data
Expert Opinions
Closed OR
Investigation Committee

15. Investigation Committee Recommendations
1. Closure
2. Further investigation – Comprehensive Medical Review
3. Administrative Warning
Medical or psychiatric impairment examination
Clinical Competency evaluation
5. Summary suspension
6. Hearing - Consent parameters in lieu of Hearing

16. Hearing Committee 3 Board members (2 physicians)
Determines innocence/guilt; penalty imposed/actions to be taken (e.g. monitoring)
Standard of Proof: the preponderance of
evidence

17. Board Decisions Censure & reprimand Suspension (actual/stayed)
Probation (monitoring)
Limitation of license
Revocation
Monetary fine
Education/Training
Community service
Dismissal
9 prescribed actions that a hearing committee can take.

18. Final actions by penalty
Serious sanction includes revocation, disciplinary and non-disciplinary surrenders,
suspensions, and restrictions/limitations.

19. Appeal Administrative Review Board
(5 Board members, including 3 physicians)
Article 78 (Appellate Court)
Administrative Review Board
Either the State or Respondent may appeal the decision of the hearing committee to the Administrative Review Board
Appeal to the ARB does not stay penalty in cases of revocation or actual suspension.

20. ARB Decisions 2015 2016 2017 ARB Decisions 13 12 17
Determination Upheld 16
Determination Not Upheld 1
Penalty Increased 7 9
Penalty Decreased 4 3
Same Penalty 6 5
Respondent Initiated Appeal
Department Initiated Appeal
Both Parties Initiated Appeal

21. Licensees Monitored by Physician Monitoring

22. What Causes a misconduct allegation?
Poor communication with patient / representative
Outcomes that are not consistent with expectations
Rude / inappropriate behavior
Perception of poor clinical care
Billing issues
Office conditions

23. What Causes a misconduct finding?
Poor clinical care: not consistent with SOC, poor quality
Patient evaluation
Diagnoses
Selection of treatment
Monitoring & follow-up
Adjusting treatment as necessary
Coordination / communication with other providers
Poor documentation / patient records

24. What does an OPMC investigation mean to me?
Time:
Average time for investigative closure: 11 months
Average prosecutorial time: 6 months
Cost:
Counsel
Time away from work
Fine
CME, malpractice, probation
Stress:
Impact on reputation with colleagues, community, family
Board actions are PUBLIC

26. NYS PMP Utilization Doctor-shopping incidents decreased 98%.
Prior to Requirement: (2/16/2010 through 8/26/13)
19,000 users performed 950,000 searches for 202,714 patients.
Since Requirement: (8/27/13 through 3/28/17)
102,670 unique users performed over 63.2 million searches for over 13.3 million unique patients.
18,365,222 searches occurred in 2016 alone.
Over 47 searches have been handled per second.
Doctor-shopping incidents decreased 98%.

27. NYS PMP: Looking Ahead Interoperable with 11 states & Wash, DC:
NJ, MA, VT, NH, CT, RI, IN, MN, VA, SC, WVA.
Adding more all the time.
Now displaying 12 months patient history.
Soon to be mobile-accessible.

28. Prescriber Education
Any practitioner who treats humans & has DEA registration or works in HCF w/registration
3 Hours Every 3 Years.
First Course Work/Training Must Be Completed by July 1, 2017.
Courses May Be Live or Online.
8 Topical Components.

29. Prescriber Education Topics
state & federal requirements for prescribing controlled substances
pain management
appropriate prescribing
managing acute pain
palliative medicine
prevention, screening and signs of addiction
responses to abuse and addiction;
end-of-life care

30. Board Initiatives Prescriber training Monitoring of PMP
: NY Board imposed 253 actions against licensees for inappropriate prescribing
86% resulted in license loss, suspension, or limitation

33. Updating a Physician Profile
Within 6 months prior to re-registration
Go to Or call
Review current information
If no changes, call above number to verify
If changes, send written notification
Be sure to sign attestation on re-registration form

34. Addressing Patient Safety & Quality in an Evolving Healthcare System
Inappropriate prescribing
Telemedicine
Team-based care delivery
Physician burnout
Credentialing

35. CONTACT INFORMATION
OPMC
Physician Profile
Bureau of Narcotic Enforcement
Health Commerce System Website

36. Board for Professional Medical Conduct &
Office of Professional Medical Conduct
Howard A. Zucker, M.D. J.D., Commissioner
New York State Department of Health
Robert A. Catalano, M.D., MBA
Executive Secretary, Board for Professional Medical Conduct
Keith W. Servis, Director
Paula Breen, Deputy Director
Office of Professional Medical Conduct
May 4, 2010