Andrew M. Knoll, M.D., J.D.

Cohen Compagni Beckman Appler & Knoll, PLLCaknoll@ccblaw.com©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 span@nysna.org 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) 477-6241aknoll@ccblaw.com