New York passes bills to limit due process abuse by the OPMC

Townsend Letter for Doctors and Patients,  Jan, 2005  by Marcus A. Cohen

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Last summer, the New York Assembly and Senate passed bills that would safeguard the due process rights of physicians targeted by the Office of Professional Medical Conduct (OPMC), the agency in the New York State Health Department that investigates doctors for alleged substandard practice.

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As of this writing, these bills have not been submitted to Governor George Pataki for his signature, the last step before they become law. Once they reach Governor Pataki's desk, he will have ten days to sign or reject them. The bills must be submitted before the close of 2004, or they will die, requiring reintroduction and passage during the 2005 legislative session. Negotiations are ongoing between supporters, opponents, and the Governor's office, and I'll report on the final disposal of the OPMC reform legislation.

Due process reform of the OPMC has been an issue of public concern in the Legislature prior to January 2002, when three committees of the Assembly conducted an all-day hearing on the fairness of the OPMC's proceedings against physicians. (See my report in the April 2002 issue.)

Subsequently, the Assembly unanimously passed an OPMC bill based on complaints heard at the 2002 hearing, but companion legislation in the Senate stalled. Kemp Hannon, Chair of the Senate Health Committee, objected to certain provisions, frustrating OPMC reform during that legislative session. (See my report in the October 2002 issue.)

Monica Miller (representing the Foundation for the Advancement of Innovative Medicine, or FAIM), Lyme disease activists, and the Committee for Justice, Herkimer County--foremost among proponents of due process reform--convinced Senator Hannon not only to reverse his position, but to sponsor a new bill in 2004, which the Senate passed during a special session. (The Herkimer group consists of 5,000 New Yorkers politically activated by the OPMC's revocation of Dr. Gregory O'Keefe, a mainstream doctor; the group felt that the OPMC's action against Dr. O'Keefe was unjustified.) The American Association of Physicians and Surgeons (AAPS), a national organization with Libertarian leanings that represents physicians in private practice, contributed a memorandum strongly supporting the Senate bill. According to Monica Miller, the AAPS memorandum was very useful in passage of the bill.

OPMC Reform Beyond Due Process

Starting in September 2001, I published a series of articles in the Townsend Letter on the OPMC; the last appeared in Jan. 2003. In the seventh article (December 2002), I made three proposals that went far beyond due process reform. From the testimony at the Assembly hearing in 2002, it was clear that a law obliging the OPMC to observe constitutional protections against unfair investigations and administrative hearings was overdue, so the bills addressing violations of these constitutional protections, finally passed by both houses of the Legislature, are a very important development. But such reform legislation would not necessarily end investigations of doctors who depart from community standards; optimally, this legislation would result in fewer investigations proceeding to charges and trials. I noted in my seventh article a growing tendency by the OPMC to step into the area of appropriate care, and to inject itself in determinations of whether doctors are giving treatment that is inappropriate, unnecessary, etc. These determinations involve mainstream and CAM practitioners.

The Agency's standard for evaluating appropriate care apparently remains community practice. But since the late 1970s, outcomes researchers have shown that most treatments in common usage are not solidly grounded on scientific evidence. Does the OPMC see any problem in utilizing a faulty basis for comparison? Do the Agency's investigators, prosecutors, and hearing panelists have the expertise to distinguish between therapy that beneficially departs from community standards and deviant therapy that can harm patients?

Appropriate care is a highly contentious issue in mainstream medicine. Medical experts often disagree on the appropriateness, the necessity of a given therapeutic approach. In my earlier OPMC article (October 2001), I quoted Dr. John Wennberg, a pioneer in outcomes research, on the debate over appropriate care. He predicted that this debate would become "increasingly acrimonious and divisive, pitting physician against physician, specialty group against specialty group, and the profession itself against the payer and the government, with the patient lost somewhere in the rhetoric."

Why has the OPMC been edging into such quicksand? Historically, the peer review process has resolved questions about appropriate treatment. Why not leave the answers to this customary process?

As indicated earlier, due process reform is not likely to prevent the OPMC from further incursions into disputatious areas that essentially shouldn't concern medical boards. (I'm not referring to truly inappropriate or unnecessary care. This fits under medical incompetence or negligence, and physicians suspected of being substandard deserve to be investigated and prosecuted, which the OPMC sometimes flagrantly neglects to do.)