New York bills to limit due process abuse by the OPMC vetoed by Governor Pataki

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

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Last December, George E. Pataki, Governor of New York, vetoed bills passed by the Legislature during the 2004 session that would have safeguarded the due process rights of physicians investigated and charged with misconduct by the Office of Professional Medical Conduct (OPMC).

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In his veto message, Governor Pataki acknowledged that these bills, passed by the Assembly and Senate, represented "a well-intentioned attempt to respond to what some licensees and patients perceive to be a bias" on the part of the Board for Professional Medical Conduct (BPMC) and the OPMC against complementary and alternative medicine; i.e., CAM. (The BPMC serves as the pool of physicians and laypersons that sit on the panels hearing OPMC cases.)

The Governor based his decision not to sign the bills into law on "considerable opposition ... from a broad spectrum of interested parties." He named, among other opponents, the Medical Society of the State of New York, the New York State Trial Lawyers Association, and "various patient advocates." (Note that his veto message did not refer to these "patient advocates" by name.)

Proponents of health-care reform are regrouping for another attempt to pass health-care reform bills in the 2005 legislative session. Their analysis of the briefs and letters submitted to Governor Pataki, urging him not to sign, found significant variation in specific objections to the 2004 bills, with different opponents objecting to certain provisions but not others.

With this in mind, the proponents are considering less comprehensive changes in the manner in which physicians are investigated and tried by the OPMC and BPMC. They plan on concentrating in the upcoming legislative session on reforms that raised lesser objections among the opposing parties, most of whom voiced concern that wholesale change would, as the Governor's veto message put it, "result in unnecessary and inappropriate delays in the process of disciplining medical professionals."

Provisions of the Vetoed 2004 OPMC Due Process Reform Bills

In a preamble of sorts to his veto message, the Governor summarized the major provisions of the 2004 bills:

* Require the immediate disclosure of information that could show that a doctor under investigation or trial had not engaged in unprofessional medical conduct.

* Require an investigatory committee to agree not only that a hearing is necessary, but also on the specific nature of the alleged misconduct and the grounds for charges.

* Limit the ability of the BPMC to conduct a comprehensive review of an MD's patient files and personal records.

* Provide that charges must be served 40 days before a hearing (rather than 20 days), in cases where the physician's license has not been summarily suspended.

* Make various changes in the timing of hearings.

* Grant physicians the right to an informal settlement conference, and require the health commissioner to approve proposed settlements meeting certain criteria.

* Set a statutory standard for qualifying experts consulted in disciplinary proceedings; also, impose new requirements for disclosing the identity and reports of such experts.

* Provide that the testimony of a duly-qualified expert will suffice to establish medical and scientific publications as reliable authorities.

* Exclude providers of health-care services other than MDs from serving on investigative and hearing panels.

* Require the BPMC to make its best efforts to assure that appointment of members to such panels is done on a rotating basis.

* Provide that rulings by an administrative officer may be immediately appealed to a senior administrative officer prior to an appeal to an administrative review board ARB.

* Provide, if an ARB disagrees with the dismissal of a charge, that the ARB must remand the matter for reconsideration or a new hearing which is not subject to appeal.

* Authorize an MD who has been disciplined to reopen a matter based on newly-found factual, medical, or scientific evidence--if the new evidence appears likely to change the result.

* Permit a consumer treated by a physician to file a written statement with the OPMC or BPMC regarding a charge against the physician if the physician has given that consumer treatment that is the subject of the charge.

As Governor Pataki observed in his veto message, the package of OPMC reforms in the 2004 bills was indeed "comprehensive" and "far-reaching," containing provisions likely to stir opposition among various parties worried that enactment of the whole package might further complicate and encumber the OPMC's disciplinary process.

In this connection, it's worth recalling the recent testimony of two organizations that criticized the OPMC for failing in numerous ways to afford due process. In an Assembly hearing at the end of January 2002, spokesmen for the New York State Bar Association (the Health Law Section), and the Association of American Physicians and Surgeons recommended most of the procedural modifications proposed in the vetoed package. (See my report on this hearing in April 2002 issue for specifics.)