The New York State Department of Health, Office of Professional Medical Conduct (“OPMC” for short), is responsible for investigating complaints against and disciplining doctors, physician’s assistants, and unlicensed and licensed medical residents.

The New York State Department of Education, Office of Professional Discipline (“OPD” for short), is responsible for investigating and disciplining health care professionals such as dentists, mental health practitioners, nurses, optometrists, pharmacists, podiatrists, psychologists, veterinarians, acupuncturists, applied behavioral analysts, athletic trainers, audiologists, chiropractors, clinical laboratory technicians, dietitians and nutritionists, massage therapists, medical physicists, midwives, occupational therapists, physical therapists, respiratory therapists, social workers, and speech-language pathologists.

A professional may also be investigated and prosecuted in certain circumstances by the local or state law enforcement such as a District Attorney, the New York State Attorney General’s Office, or New York State Justice Center.

An investigation often arises when OPMC or OPD receives a complaint. Complaints may be submitted by current or former patients, current or former clients, your employer, or even a colleague. In fact, professionals have an affirmative duty to report colleagues who reasonably appear to be guilty of professional misconduct. A licensed professional’s willful violation of his or her duty to report a colleagues’ wrongdoing is itself misconduct.

Professional misconduct includes but may not be limited to:

• Engaging in acts of gross incompetence or gross negligence on a single occasion, or negligence or incompetence on more than one occasion.
• Permitting or aiding an unlicensed person to perform activities requiring a license.
• Refusing a client or patient service because of race, creed, color, or national origin.
• Practicing beyond the scope of the profession.
• Releasing confidential information without authorization.
• Being convicted of a crime.
• Failing to return or provide copies of records upon request.
• Being sexually or physically abusive.
• Abandoning or neglecting a patient in need of immediate care.
• Performing unnecessary work or unauthorized services.
• Practicing under the influence of alcohol or other drugs.

Physicians and physician’s assistants are subject to additional categories of misconduct including:

• Willfully harassing, abusing or intimidating a patient either physically or verbally.
• Failing to maintain a record of each patient which accurately reflects the evaluation and treatment of the patient.
• Guaranteeing that satisfaction or a cure will result from the performance of professional services.
• Ordering excessive tests, treatment, or use of treatment facilities not warranted by the patient’s condition.
• Issuing prescriptions for drugs and devices which do not contain the date written, the prescriber’s name, address, telephone number, profession and registration number, the patient’s name, address and age, the name, strength and quantity of the prescribed drug or device, and the directions for use by the patient.
• Failing to use scientifically accepted infection prevention techniques appropriate to each profession for the cleaning and sterilization or disinfection of instruments, devices, materials, and work surfaces.

Negligence can be a broad term used to encompass acts such as boundary violations or relationships with patients or clients.

First, you should always open each letter or email communication received from a disciplinary agency. Ignoring communications can be considered misconduct in and of itself and failing to respond to the communication could result in a default judgment against you. Most importantly however, if you are contacted by an investigator, you should contact an attorney and obtain counsel as soon as possible. Never speak with an investigator without counsel present. You may think, in the spirit of cooperation, speaking to an investigator early on may bring a quick closure, but in most instances, that is simply not true. It is extremely important that any contact with an investigator from OPD or OPMC be carefully planned, otherwise you may create additional hurdles that will need to be overcome in the future. A person may fear that appearing with an attorney may make them seem more guilty, but again, this is simply not true and especially in this area of the law, where it is necessary to protect your career, license, and livelihood.

Every matter has a unique set of facts that make every resolution different. Your attorney may try and negotiate a mutually agreeable resolution before the need for any formal hearing.

Potential penalties can include agreeing to attend a remedial program, such as an ethics course or professionalism course, censure which is a nonpublic official record of disapproval, reprimand which is a public letter of formal discipline, fines (up to $10,000 for each violation), probation, agreeing to attend substance abuse treatment, and in the most serious cases, suspension or revocation of your license.

A professional misconduct hearing is much like a trial, where witnesses will be called and questioned, cross-examination of the witnesses occurs, subpoenas can be issued, and evidence will be presented. An Administrative Hearing Officer, who is an attorney admitted to practice in New York will oversee the hearing, ruling on any motions, procedures, and legal objections. The matter will ultimately be decided by the hearing panel which consists of two members of the involved profession and one public member. An attorney from either the State Department of Education for OPD or State Department of Health for OPMC will serve as the prosecutor. The hearing panel ultimately issues a written report including findings of fact, a determination of guilt or non-guilty on each charge, and a recommendation of the penalty to be imposed. For a hearing panel to make a determination of guilty, at least two of the voting members must vote for that determination supported by a preponderance of the evidence.

Yes. Even if you have made mistakes in the past, it may still be possible for you to obtain a professional license in New York. These decisions are often made on a case by case basis. An attorney can help you through the application process and strategize how to best address your past to give you the best chance of obtaining licensure. Depending on the age of any prior convictions, it may be possible to have your prior criminal record sealed.

When you apply for a license or to renew a license, you will be required to answer questions regarding criminal convictions, pending criminal charges, prior professional discipline, or currently pending professional discipline. It is important to be honest. If you are not sure whether something should be disclosed, you should speak with an attorney. You do not have to disclose youthful offender offenses. If you apply for and are granted a sealing order you may also able to deny such convictions.

The question of past professional discipline may arise on job applications or in applications for a professional license in another state. In some states, if you have been subject to professional discipline or a crime in another state you must self-disclose this information proactively to that licensing body. Whether you have a duty to self-disclose information regarding professional discipline depends on the State(s) in which you are licensed and their particular rules. Additionally, the duty to self-disclose will depend on the circumstances of your unique matter. To ensure that you do not find yourself facing further professional discipline for an untruthful answer, you should always check with an attorney if you have a question about your duty to self-disclose.