Board for Professional Medical Conduct 1999 Annual Report
Public Health Law, Section 230(14) states:
The board shall prepare an annual report for the legislature, the governor and other executive offices, the medical profession, medical professional societies, consumer agencies and other interested persons.
The Board for Professional Medical Conduct (the Board), through its Office of Professional Medical Conduct (OPMC), investigates complaints made against physicians and physician assistants, and prosecutes those charged with misconduct. Investigations that reveal evidence of physician misconduct are referred to committees of the Board, which hear evidence and make the final decision concerning charges and, if appropriate, penalties.
Technology as an investigative and communications aid and as a potential problem is a key area of exploration and concern as the Office and Board enter the new millennium.
Technology has been used to enhance the investigative and communications process:
- Using specialized database and case tracking systems; electronic connections to other Department of Health offices; and links to medical, disciplinary, police and legal data bases, OPMC relies on technology to investigate complaints efficiently and reliably, manage its caseload, prosecute offenders, and communicate its activities.
- Links to Internet legal and investigative resources are now provided on a new internal Web site for staff; the site also serves as an important communications tool.
- A Web site for Board members has been established to enhance communications about Board business and disciplinary matters both in New York and around the nation.
- The program's public Web site (www.health.state.ny.us/nysdoh/opmc/main.htm) continues to be enhanced with timely postings of current disciplinary actions and OPMC publications. Disciplinary actions taken against physicians from 1992 to the present are available on the site. Improvements in site function and design have also been made.
Concerns about the promise and the peril of telemedicine led to the creation of a special committee of the Board. The burgeoning use of the Internet to secure prescription medications without a physician's examination is an area of particular concern.
The program's commitment to root out financial fraud in medicine is evidenced by the establishment of a dedicated fraud unit and by the number of cases identified and prosecuted.
- A specialized fraud unit with dedicated investigative and legal staff was created in 1998.
- A significant number of suspected fraudulent physician practices have been identified.
- Sixty-three complex investigations have been completed with 25 physicians referred for hearing, revoked, surrendered or in the process of surrendering their licenses.
Program performance improved during 1999 with the number of investigations, cases prosecuted, and final actions by the Board increasing.
- Investigations completed in 1999 rose by 6 percent.
- Cases referred for prosecution rose by 8.5 percent.
- Final actions by the Board rose by nearly 3 percent and the number of serious disciplinary actions increased by more than 5 percent.
- The Physician Monitoring Program unit currently monitors 746 physicians under Board Orders. During 1999, 39 physicians were referred for violating their orders. In half the cases resolved, major disciplinary action was taken.
Technology in the Medical Conduct Process
The Office of Professional Medical Conduct (OPMC) uses technology in every phase of the disciplinary process. From its connections to the DOH network, which allow OPMC central office, its six field offices and its attorneys to communicate case data and information to its specialized database and case tracking systems, OPMC relies on technology to investigate complaints efficiently and reliably, manage its caseload, prosecute offenders, and communicate its activities.
During the investigative phase basic information is collected and included in an electronic investigation form. This information comes to OPMC from many electronic sources, including: the New York State Education Department, the New York State Department of Criminal Justice Services, the National Practitioner Data Bank, the American Board of Medical Specialties and the New York State Police Information Network. Information gathered during field investigations is also included in this electronic report.
In addition, OPMC maintains several of its own databases which contain information that support and enhance ongoing investigations. These include: the Case Management Information System (CMIS) and Medical Malpractice Information System databases. Information from the CMIS and other databases form the nucleus of the case investigation package prepared for a Board Investigation Committee as its members consider recommending action against a physician or physician assistant. CMIS serves as the program's central case management and tracking system, allowing investigators and managers ready access to investigative information and case status.
The investigative information available in OPMC's databases forms the basis for logging and tracking during the adjudication process. Attorneys from the Division of Legal Affairs use a database that is part of the CMIS to track hearing preparation and resultant final disciplinary actions.
OPMC's reliance on technology enhances the investigative process by providing a central, easily accessible repository for all case information as well as creating a time line to gauge case progress. The technology makes the investigative process more efficient and reliable.
During the past year the Office has developed forensic computer data collection expertise so data can be recovered from computer systems in the field. This is expected to play an increasingly important role in fraud cases.
Enhancements continue to be made to the OPMC Web site (www.health.state.ny.us/nysdoh/opmc/main.htm) to make the medical conduct process more open to the public. The site includes information on disciplinary actions taken against physicians from 1992 to the present, annual reports, the latest brochures, answers to "Frequently Asked Questions," and the OPMC complaint form. A link to the State Education Department Web site, which includes licensing information, is also available. The site receives an average of more than 2,100 "visits" per week.Enhancements continue to be made to the OPMC Web site (www.health.state.ny.us/nysdoh/opmc/main.htm
OPMC received almost 500 e-mail requests for information and assistance in 1999, a 57 percent increase over 1998.
Two specialized Web sites were established for use by staff and Board members. Both provide information and resources for their particular audiences and both serve as important communication channels for staff and Board members who are widely distributed across the state.
MedCon Web is an intranet for members of the Office and the attorneys in the Bureau of Professional Medical Conduct (BPMC). It includes links to investigative and legal resources, relevant laws and regulations and various procedure manuals. It also serves as a centralized source of information on issues of importance to staff, from directions to each of the regional offices to instructions on how to use computer software.
Board.Net was developed for the exclusive use of Board members and select OPMC and BPMC staff. The site resides on a secure server operated by DOH. A special account, ID and password are required. Board.Net includes news from other state medical boards and the DOH, the board manual, the hearing committee manual, relevant laws and regulations, court decisions, and other resources and information. It will increasingly serve as a vehicle for quickly sharing information with the more than 180 Board members located around the state.
To assure consistent responses to hundreds of calls regarding Physician Assistant (PA) scope of practice issues, OPMC, working with other Department of Health bureaus, the State Education Department and the New York State Society of Physician Assistants, developed a reference document which has been sent to 4,300 licensed PAs.
Outreach efforts to the public, medical and legal communities and national organizations have included multimedia presentations, speeches, seminars, grand rounds, interviews and articles on New York's medical conduct process and the key issues facing disciplinary boards.
Telemedicine, which includes the use of the Internet, telephones, video conferencing, video imaging, etc., can bring health services, both basic and specialized, to remote and under served areas of this state where access to health care is severely limited or simply nonexistent. The burgeoning use of the Internet by the general public has brought the world of medicine into living rooms, offices, libraries, college dorms and senior citizens' centers. OPMC is working closely with other state boards and national organizations to make certain the public health benefits of this evolving technology are allowed to flourish while still protecting the public from its very real perils. The Board Committee on Telemedicine has been established to review the promise and problems of these new and evolving technologies in the practice of medicine.
OPMC is actively studying all the issues raised by the practice of medicine over the Internet, including the prescribing of medications for individuals without a physical examination. OPMC will investigate any New York State physician whose Internet practices represent misconduct and will share the names of any out-of-state physicians or other health care practitioners found in the course of investigations or research with the appropriate state professional board. It is a violation of State Education Law Section 6530, which defines misconduct, to prescribe medications without conducting a proper clinical assessment of the patient. This assessment frequently includes the taking of a medical history and performance of a physical examination.
Financial Fraud in Medicine
In recognition of the immense loss of medical resources to fraud in the United States, estimated at more than $100 billion annually in federal funding alone, the Federation of State Medical Boards (FSMB) conducted a study of fraud in medicine. That study concluded that state medical boards should assume a primary role in the investigation and discipline of physicians involved in questionable health care practice.
The Board Subcommittee on Fraud has recognized the relationship between fraudulent practice and negligent patient care, the necessity of close cooperation between OPMC and other agencies and the need to develop an affirmative and proactive approach to the problem. A study by the subcommittee revealed that physician fraud ranks second as a basis for physician discipline and first as a basis for revocation of physician licenses in New York.
As a result, a Fraud Unit, with separate legal, investigative and medical staff, was formed in 1998 to investigate cases of financial fraud in the practice of medicine. Liaisons have been established with the FBI, the state Attorney General, the Drug Enforcement Administration, the National Insurance Crime Bureau, major insurance carriers and other state and federal agencies.
A significant number of suspected fraudulent physician practices have been identified. In 1999, 63 complex investigations of the most serious violators were completed with 25 physicians voted to hearing, revoked, surrendered or in the process of surrendering their licenses. Six physicians were summarily suspended from practice. Of equal significance are the nine physicians who were exonerated as a result of investigation.
The vast majority of these fraudulent physicians, identified through the proactive work of the Fraud Unit, would not have come to the attention of OPMC through normal reporting or complaint channels; in an initial group of more than 600 physicians identified by law enforcement and insurers as suspects in major fraud schemes, only eight had been individually identified by OPMC through normal channels.
The magnitude of these fraudulent practice schemes is startling. One case currently under investigation involves a physician owner of 11 medical practices providing chiropractic and physical therapy services which have been fraudulently billed as neurology and physiatry services. Losses to Medicaid, insurers and the public in this case alone are estimated at $120 million in a single year. Many similar schemes, which involve fraud not only through excessive or unnecessary testing but as a result of no testing, no treatment or inadequate treatment, have been identified and await investigation. Numerous other physician operators of similar scams, most involving at least $1 million in fraud, have been identified and await investigation.
OPMC 1999 performance highlights include:
- Investigations completed in 1999 rose by 6 percent, from 6,359 in 1998 to 6,732 in 1999.
- The number of pending investigations at year-end decreased by more than 2 percent, from 1,925 in 1998 to 1,883 in 1999.
- The number of cases referred for prosecution rose by 8.5 percent, from 354 in 1998 to 384 year end in 1999.
- The number of cases prosecuted rose by more than 6 percent, from 333 in 1998 to 354 in 1999.
- Final actions, including nondisciplinary surrenders, by the Board for Professional Medical Conduct rose by nearly 3 percent, from 347 in 1998 to 356 in 1999.
- Serious disciplinary actions (revocation, surrender and actual periods of suspension) rose by more than 5 percent, from 204 in 1998 to 216 in 1999.
- The number of complaints received rose by nearly 4 percent, from 6,440 in 1998 to 6,690 in 1999.
Staff of the Office of Professional Medical Conduct Metropolitan Regional Office received a 1999 Department of Health Commissioner's Recognition Award for their participation in a multidisciplinary team investigation of an extremely complicated patient death case in a major downstate teaching hospital. Their efforts resulted in significant procedural reform within the hospital.
The Federation of State Medical Boards, in its 1999 annual report on disciplinary actions, found that in 1998 New York led the nation in taking disciplinary actions which resulted in the loss of license or license privileges, had the highest ratio of serious disciplinary actions per practicing in-state physician of the dozen states with the largest physician populations, and was second only to California in the total number of disciplinary actions taken.
OPMC has continued its aggressive efforts to prosecute physicians who violate their terms of probation. In 1999, 39 physicians were referred for violating Board orders. Half the cases resolved have resulted in major disciplinary actions, including revocation, suspension and license surrender.
Following the recommendation of the New York State Public Health Council's Committee on Pain Management, OPMC embarked on an extensive training program. This was designed to acquaint all staff with the issues relating to pain management and how state investigative agencies may represent a barrier to effective pain management. Three training seminars were held in various locations in the state during 1999. These seminars featured information presented by Mark Lema, M.D., Chairman, Department of Anesthesiology and Pain Medicine, Roswell Park Cancer Institute, Buffalo, and were attended by all OPMC investigative and legal staff. DOH staff from other bureaus also attended.
In addition, pain management was a featured topic at the Board's 1999 Annual Meeting in November 1999. Telemedicine issues were also a focus of the Annual Meeting. Investigative and legal staff also received information regarding telemedicine issues during their annual training.
OPMC vigorously monitors physicians to determine whether they are in compliance with conditions imposed on their practices by the Board. The Board- ordered conditions allow the physicians to continue practicing while also protecting the public from further misconduct. The Physician Monitoring Program unit currently monitors 746 physicians under Board orders. This unit has continued efforts initiated two years ago to return to the Board cases in which the physician has not complied with previously ordered conditions. During 1999, 39 physicians were referred for violating their orders. In half the cases, major disciplinary action was taken, including revocation, license surrenders and suspensions of one year or more.
Clinical Competency Assessments for Practicing Physicians
Incompetence has been defined as the lack of the requisite knowledge or skill in the performance of an act in the practice of medicine. In early 1999, OPMC began using the Upstate Clinical Competency Assessment Center at the Albany Medical College to conduct full clinical competency assessments for practicing physicians whose knowledge and skills are in question. The assessment includes gathering and assessing information about the physician's interpersonal and communication skills, history taking and physical examination skills, knowledge of basic and clinical sciences, clinical judgement and decision making, and physical and neuropsychological screening.
Since March 1999, 11 physicians have been referred to the Center for an assessment. In each case, the report of the physician's clinical competence is used to determine whether retraining is an appropriate remedy for any deficiencies identified. If retraining is required, OPMC refers the physician to one of the participating academic medical centers in New York State for assistance in securing a retraining position.
The academic medical center creates a learning contract with the physician based on the original Board concerns and the assessment. The course of study includes an individualized education plan with measurable objectives and time frames for achievement. The remediation phase may last from three months to one year. The physician is assigned a preceptor, approved by OPMC, who will provide quarterly reports on the physician's educational progress and completion of the personalized continuing medical education program. Once the educational program is completed, the physician must fulfill a two-year follow-up period under the terms of a practice monitoring agreement. The monitoring is a quality assurance mechanism to evaluate the effectiveness of the education program in correcting previously identified deficiencies and improving the physician's practice of medicine.
Two Board members were elected to FSMB committees during the group's annual meeting: Rev. Daniel Morrissey was reelected to the Board of Directors for a full three-year term and Patrick F. Carone, M.D., M.P.H. was elected to the Nominating Committee. Thea Graves Pellman was also asked to continue to serve on the Editorial Committee as an editorial consultant following the end of her one-year term.
The Director of the Office of Professional Medical Conduct was asked to represent the Board in the Federation's Regional Workshops Series on Quality-of-Care Cases. These workshops explored the role of state medical boards in maintaining quality of care in their states when dealing with incompetent physicians. New York's Board is recognized as a leader in handling cases involving quality of care issues.
Evolving Physician Practice Issues
Members of the Board continue to address emerging issues facing boards and the medical community today.
Responding to the Public Health Council's Ad Hoc Committee on Pain Management's call for an affirmation by the department that the treatment of pain is a medically necessary service, William P. Dillon, M.D., Board Chair, appointed a Board Committee on Pain Management. The committee is developing a policy statement on pain management and educational materials for both physicians and the public. The materials will help educate physicians and the public about the appropriateness of pain management and help some physicians to dispel fears of Board action when physicians prescribe narcotics in the management of pain.
The Executive Secretary of the Board and OPMC staff are participating in a Robert Wood Johnson Foundation initiative to educate the public and health professionals regarding managing end-of-life pain.
Former Board Vice Chair Thea Graves Pellman and former President of the Medical Society of the State of New York (MSSNY) and Chair of the Board for Professional Medical Conduct Stanley Grossman, M.D. served on the DOH Committee on Quality Assurance in Office-Based Surgery. Ansel Marks, M.D., J.D., Executive Secretary of the Board, served as staff to the committee.
The committee was formed to assure that the public is being adequately protected as the number of office-based surgeries continues to rise. New York currently has no regulatory authority over procedures conducted in these settings.
The committee prepared a set of clinical guidelines for surgical or other invasive procedures performed in offices. The guidelines, which will be recommended as an appropriate standard of care, will provide practitioners who perform surgery in their private offices and other non-hospital facilities with uniform professional standards regarding qualifications of practitioners, staff, equipment, facilities, and policies and procedures for patient assessment and monitoring. The guidelines are being considered by the Public Health Council.
A special committee of the Board was appointed to look at the use of computer, Internet and other electronic technology in the practice of medicine. These technologies have tremendous application and provide the opportunity to expand and advance medical care. The mission of this committee will be to develop a statement on the ethics of telemedicine for use by the Board and physicians as a guide in determining appropriate and inappropriate uses of these new technologies in the practice of medicine.
OPMC and the Board work with more than 750 outside qualified medical experts who perform medical reviews of cases and provide testimony during prosecutions. They play a key role in the investigative and adjudicatory process. A committee of the Board on experts was appointed in November 1999 to make recommendations for improvements to the expert program in areas such as training, recruitment and compensation. The committee's final recommendations to the Advisory Committee of the Board are expected by spring 2000.
Committee on Physicians' Health
A joint committee of the Board and the Medical Society of the State of New York Committee on Physicians' Health (CPH) was formed. This committee will be looking at ways in which the CPH and OPMC's Impaired Physicians' Program can better reach mutual goals and will be developing guidelines for the sharing of information between the programs.
Center for Health Workforce Studies
The Board's Physician Data Committee is working with OPMC on a cooperative study with the University at Albany School of Public Health Center for Health Workforce Studies. The study will compare characteristics of disciplined physicians against those of non-disciplined physicians to determine risk factors that make a physician more likely to be charged with or commit misconduct. The study's findings will serve as the basis for the development of educational and preventive programs to reduce the incidence of professional misconduct in the state.
The 1999 Annual Meeting of the Board surpassed the previous year's record attendance. One hundred forty-one members, representing more than 75 percent of Board members, attended the weekend session in Albany on November 5-7.
This meeting focused primarily on the appropriate role of pain management in medicine and current knowledge regarding treatment modalities. The meeting's goal was to dispel the many misconceptions regarding the use of narcotics and other drugs for the treatment of pain. The sessions also helped to delineate the role of the Board in helping to promote effective pain management while still protecting the public from practitioners who inappropriately prescribe drugs under the guise of pain management. Board members attended lectures by nationally recognized experts and participated in panel discussions and mock hearings.
The rapidly evolving area of telemedicine was also explored. Attendees heard about the positive and negative aspects of this growing field of medicine from a physician with a telemedicine practice.
General Program Information
Board for Professional Medical Conduct
The State Education Department was originally responsible for the licensing and disciplining of physicians in New York State. The State Legislature divided the process between the Education and Health Departments in 1976. The Health Department and the Board then became responsible for investigating complaints and holding hearings. However, the Education Department and the Board of Regents, that department's governing body, made the final decisions in all discipline cases.
In 1991, the state disciplinary process was again changed by the Legislature. The Regents and the Education Department were removed from the disciplinary process and the responsibility was given solely to the Board and the Health Department. There still exists the unique dichotomy in New York State of one department, the Department of Education, issuing licenses, and another department, the Department of Health, having disciplinary authority, including the revocation of licenses, for physicians and physician assistants. All other health care professionals other than RPAs and physicians (e.g., nurses, dentists, podiatrists) are both licensed and disciplined by the Department of Education.
The Board for Professional Medical Conduct was created by the same legislation that divided the disciplinary process between the Education and Health Departments. Members represent a wide spectrum of the state's physicians, physician assistants and lay citizens. The Board serves as a key resource in the state's disciplinary process and strives to make the process more responsive to the needs of both patients and physicians.
Physician members of the Board are appointed by the Commissioner of Health based largely on recommendations made by medical and professional societies. Lay members are appointed by the Commissioner of Health with the approval of the Governor. By law, the Board of Regents may appoint 20 percent of the membership of the Board. Adjudication committees include two physicians and a lay member.
Members of the Board fulfill several major roles in the disciplinary process. They serve on investigation, hearing and license restoration committees and on the Administrative Review Board. In addition, Board members may serve on a variety of committees that address procedural and emerging policy issues.
The roles of the Board and the OPMC are delineated in Public Health Law Section 230. The definitions of misconduct are found in Sections 6530 and 6531 of the Education Law.
Office of Professional Medical Conduct
- To protect the public from medical negligence, incompetence, illegal or unethical practices by physicians and physician assistants.
- To deter the incidence of professional misconduct by physicians and physician assistants.
- To promote and preserve standards of medical practice which conform with laws, rules and regulations of the State of New York.
- To respond to expressed public questions and concern over the quality of medical care.
The Office of Professional Medical Conduct provides staff to carry out the objectives of the Board. Its mission is to protect the public through the investigation of professional discipline issues involving physicians and physician assistants. Through its disciplinary and monitoring activities, OPMC strives to deter professional misconduct and promote and preserve standards of medical practice.
- investigates all complaints;
- with assistance of counsel, prosecutes physicians formally charged with misconduct;
- monitors physicians whose licenses have been restored following a temporary surrender due to incapacity by drugs, alcohol or mental impairment and oversees the contract with the Medical Society's Committee for Physicians' Health (CPH), a nondisciplinary program to identify, refer to treatment and monitor impaired physicians.
- monitors physicians and physician assistants placed on probation.
The Disciplinary Process
- Complaints are received in the central office, screened and either resolved or referred to the complaint resolution unit for further investigation. Cases requiring more intense investigation are sent to the appropriate geographic field office.
- Cases in which investigative staff have found evidence that may support charges of misconduct are presented to an Investigation Committee of the Board, consisting of two physicians and a lay person. The committee can recommend a hearing, an administrative warning or consultation, administratively close the case, request additional investigation, direct physicians to undergo physical and psychiatric examinations, or recommend a summary suspension to the Commissioner of Health. The latter is done if the physician is deemed an imminent danger to the public or if the physician has been convicted of a felony. The committee can also recommend acceptable parameters for a consent agreement to help speed settlements. The recommendations are acted upon by the Chair of the Board and the Director of OPMC in consultation with the Board's Executive Secretary.
- Cases voted to hearing are assigned to Department of Health attorneys who review the cases and draw charges. Consent agreements within previously recommended parameters may be sought to resolve cases without the need for a hearing.
- If a consent agreement has not been recommended or cannot be reached, a hearing panel, consisting of two physicians and one lay person is drawn from the Board. A chairperson is appointed. This panel, assisted by an administrative law judge, hears the case, reviews the evidence, renders a decision and assesses a penalty. The hearing committee's action can range from dismissal of charges to suspension or revocation of a license.
- Either the state or the respondent physician can appeal a hearing committee's decision to the Administrative Review Board (ARB). This standing committee, consisting of three physicians and two lay members drawn from the Board, serves as the final internal administrative remedy available for the state and the physician. Once the appeal is properly requested, the ARB must render a decision within 45 days.
- The determination of the hearing panel or the ARB may be appealed outside the OPMC process by means of an Article 78 proceeding to the Appellate Division, Third Department.