Office of Professional Medical Conduct: Protecting the Public from Misconduct

1. 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 • 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

2. What is misconduct? • The OPMC process • Updates & new initiatives • The Future Today’s Discussion Topics

3. Protect the public from professional medical misconduct Provide Physicians and Physician Assistants due process Assist the Department of Health and the Commissioner as needed Board & Office of Professional Medical Conduct - Mission

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

5. THE PROFESSIONAL MEDICAL CONDUCT PROCESS • Governing Statutes • Education Law §6530 and §6531 • Public Health Law §230

6. SERIOUS MISCONDUCT • About 70% of all Board actions: • Negligence / Incompetence • Impairment • Sexual Abuse • Fraud • Inappropriate Prescribing

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

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

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

10. OTHER MISCONDUCT Criminal conviction Other state board action 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 a patient in need of immediate care

11. BOARD FINAL ACTIONS BY MISCONDUCT TYPE

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: Suspected misconduct by nurses, nurse practitioners, nurse anesthetists, technicians, and other non-physicians should be reported to the State Education Department

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 namesasking 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

14. REPORTING MYTH • Referring a physician who may be impaired to CPH satisfies the Public Health Law requirements to report to OPMC ? NO!

15. The Professional Medical Conduct Process

16. THE PROFESSIONAL MEDICAL CONDUCT PROCESS • Governing Statutes • Public Health Law §230 • Education Law §6530 & §6531 • Components • Complaints • Investigations - Medical Expert Review • Investigation Committee • Hearings • Appeals

17. Complaints Investigation Investigation Committee Hearing Committee Appeals (Administrative Review Board) THE PROFESSIONAL MEDICAL CONDUCT PROCESS

18. COMPLAINTS Complaint OPMC Review • Jurisdiction? • If proven – possible misconduct? Close No Yes Assign to Central Office Assign to Regional Office Investigate

19. 2018 SOURCE OF COMPLAINTS (9,014)

20. Investigative ACtivities • Medical Record review • Interviews • (Complainant / Subject / Witnesses) • QA records • DOH and other data • Expert Opinions Closed OR Investigation Committee

21. Investigative COMMITTEE RECOMMENDATIONS • Closure • Further investigation - Comprehensive Medical Review • Administrative Warning • Summary Suspension • Hearing - Consent parameters in lieu of Hearing

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

23. board DECISIONS • Censure & reprimand • Suspension (actual/stayed) • Probation (monitoring) • Limitation of license • Revocation • Clinical competency exam • Monetary fine • Education/Training • Community service • Dismissal

24. APPEALS • Administrative Review Board • (5 Board members, including 3 physicians) • Judicial Review - Article 78 (Appellate Court)

25. ADMINISTRATIVE REVIEW BOARD DECISIONS

26. FINAL ACTIONS BY PENALTY • Serious sanction includes revocation, disciplinary and non-disciplinary surrenders, • suspensions, and restrictions/limitations.

27. Final actions by specialty

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

29. THE PHYSICIAN ROLE IN THE PMC PROCESS • Peer review is the cornerstone • Physician participation: • Emphasizes patient safety • Ensures objectivity & fairness of process

30. OPPORTUNITIES FOR PHYSICIAN PARTICIPATION Board Member Medical Coordinator Medical Expert Monitor

31. PHYSICIAN BOARD MEMBERS • Investigation Committee • Hearing Committee • Restoration Committee • Administrative Review Board • Committee to direct medical, psychiatric or clinical competency evaluation

32. MEDICAL COORDINATOR • Assists in OPMC reviews & investigations • Conducts initial review of allegations & facts • Interviews subject licensee • Develops questions for external expert(s)

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

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

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

36. MEDICAL EXPERTS Interested Physicians should contact: • Judith Joyce • Expert Program Coordinator • Phone - (518) 408-0209 • Fax - (518) 402-0145 • Email - OPMC@health.ny.gov

37. PHYSICIAN MONITOR • Assist OPMC in monitoring the care of licensees on probation • Review records • Discuss patient care issues • Goal: prevent recurrence of misconduct

38. Licensees Monitored by Physician Monitoring PROGRAM

39. WHY SHOULD A PHYSICIAN PARTICIPATE? • Promote patient safety • Ensure objectivity and fairness of process • Protect integrity of profession

40. Updates &New Initiatives

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)

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 • Over 47 searches have been handled per second

43. USE OF PRESCRIPTION MONITORING PROGRAM (PMP) data • 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

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

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

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

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.

49. ELECTRONIC PRESCRIBING • DOH has promulgated regulations for electronic prescribing of controlled substances (EPCS) • Regulations are found at 10 NYCRR - Part 80

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