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Andrew M. Knoll, M.D., J.D.
Cohen Compagni Beckman Appler & Knoll, [email protected]©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
OutlineGoals
Basic understanding of the professional conduct investigatory and prosecutorial system in New York
Introduced to the varying agencies involvedBuy insurance to cover legal defense costsKnow what steps you can do to mitigate risk
Audience demographics
Risk Factors for Professional Misconduct and Conduct Investigations
Solo PractitionerInstitutional practice
SNFHospital
Controlled SubstancesHandlePrescribe
Practice in NYS
License defense is a costly processYour malpractice insurance may or may not
provide coverageMay 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 attorneyWhat’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 CenterOMIG (Office of Medicaid Inspector General)Attorney General Medicaid Fraud UnitUSDOJ (Department of Justice for the NDNY)
SED Office of Professional DisciplineRegulates 55 of the 58 professions licensed
under Title VIII of the Education DepartmentInvestigators have varying experience with
healthcare and nursing in particularSignificant variation from office to office
All licensees except for physicians and PA/SAs
Investigatory and prosecutorial arm of SEDDecisions are made by the Board of Nursing
Rules of the Road1. You have no rights whatsoever2. Yes, Rule 1 is incredibly unfair, but you
still have no rights whatsoever Substantive vs. Procedural Due Process
3. Agencies go after low hanging fruit4. 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 MisconductNegligence (ordinary, gross, incompetence,
beyond the scope, delegation)Substance abuse (impaired or habitual)Referral discipline (crime, licensing)Abandonment and harassmentViolations of healthcare laws and regulationsFee splitting and kickbacksMedical recordkeeping issues
Fraudulent practiceMoral unfitnessFalse advertising Undue influenceFailure to respond to NYSEDFailure to wear IDArrears in child support
Professional misconduct, cont.
Penalties for Professional MisconductLicense revocationLicense suspension (actual or stayed)License limitationProbationFines (up to $10,000)Censure & ReprimandCEU or retrainingPublic service (up to 100 hours)
Fallout of Professional DisciplineCredentialing issuesPayor disenrollmentNPDB reportAdverse publicity
The Investigatory ProcessOPD Letter demanding an interview
May be rescheduledInterview itself
Tape recordedPost Interview SubmissionsOPD 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 recommendedInvestigator will typically let the lawyer
know, as a courtesyLawyer will start negotiating with the
prosecutorInformal Settlement Conference
Merely to negotiate the penaltySenior member of OPD and Nursing Board
memberFinal disposition takes months to a year
HearingsAdversarial administrative proceedingJudge, jury, and prosecutor all work for SEDTypical rules of procedure and evidence do not applyThe 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 DisciplineVery limited procedure – matter of minutes
Final decision made by the Board of Regents
Impairment & DiversionBNE involved if diversion suspected
Potential to be arrestedStatewide Peer Assistance for Nurses (SPAN)
800-457-7261 or [email protected] SED Professional Assistance Program (PAP)
Requires license surrender, which may be ceremonial
Hospital & SNF InvestigationsEven less rights than with OPD and BNESubjective (not political)No right to be represented by counselVery dangerous because the results can
trigger profound consequences
Mitigating RiskCharting
Document as much as possible EMR problems Personal notes and the “Red” folder
Document your thought processesBe extra careful when dealing with narcoticsSelf auditSeek early consultation from a
knowledgeable attorney when problems ariseGet out when the getting is good
Take Home MessageVarying agencies are empowered to
investigate NPsTake them all seriouslyPotential 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) [email protected]