New York OPD Investigations and Disciplinary Hearings

At the Law Offices of David S. Rich, LLC, we have substantial experience representing licensed professionals in misconduct investigations and disciplinary proceedings brought by the New York State Department of Education’s Office of Professional Discipline (the “New York OPD” or the “OPD”).

Whom We Represent

The licensed professionals whom we defend in misconduct investigations and disciplinary proceedings brought by the New York OPD include, for example, all health care professionals such as:

• Dentists
• Mental health practitioners
• Nurses
• Optometrists
• Pharmacists
• Podiatrists
• Psychologists
• Veterinarians
• Acupuncturists
• Applied behavior analysts
• Athletic trainers
• Audiologists
• Chiropractors
• Clinical laboratory technicians
• Dietitians and nutritionists
• Massage therapists
• Medical physicists
• Midwives
• Occupational therapists
• Pathologists’ assistants
• Perfusionists
• Physical therapists
• Respiratory therapists
• Social workers
• Speech-language psychologists

So, too, the licensed professionals whom we defend in misconduct investigations and disciplinary proceedings brought by the OPD include, for example, licensed professionals outside of the health care industry such as:

• Accountants
• Architects and landscape architects
• Court reporters
• Engineers
• Geologists
• Interior designers
• Land surveyors
• Ophthalmic dispensers
• Polysomnographic technologists

• What Happens In An Informal Settlement Conference Before The New York OPD?

What We Do

The Law Offices of David S. Rich, LLC represents licensed professionals in all stages of the professional disciplinary process: (1) drafting the required, signed statements in response to the allegations; (2) in order to develop legal defenses and to identify mitigating circumstances, researching published opinions of New York’s Appellate Division, Third Department, reviewing decisions of the New York State Board of Regents (the “State Board of Regents”) imposing professional discipline; (3) preparing the professionals for on-the-record interviews and taking part as the professionals’ counsel; (4) answering statements of charges; (5) negotiating settlements; (6) making pre-hearing motions; and (7) litigating disciplinary hearings.

How Disciplinary Investigations Arise

An investigator for the New York State Department of Education’s Office of Professional Discipline (the “New York OPD” or the “OPD”) calls the professional’s practice or business, identifies himself or herself as being from OPD, and asks for a copy of the professional’s records in the case or matter about which a complaint has been received.

The New York OPD investigator may ask the professional to provide a signed, written statement about potential violations of laws or rules governing the individual’s profession.

So, too, the New York OPD may, in an on-the-record interview, make the professional testify under oath.

Disregarding the OPD’s requests for information or books and records typically results in a significant penalty.

If you are a professional in the New York City metro area (including the borough of Manhattan) and you have received, from the New York OPD, a telephone call, contact the Law Offices of David S. Rich, LLC.

What Is Professional Misconduct?

The New York State Education Law defines the term “professional misconduct.” Under the Education Law, more than 40 categories of conduct are deemed unprofessional or unethical, exposing the practitioner to discipline.

The types of misconduct that most frequently result in misconduct investigations and disciplinary hearings are:

1. Practicing the profession, on more than one occasion, with negligence or incompetence;
2. Being convicted, in any jurisdiction, of a crime;
3. Practicing beyond the authorized scope of the profession;
4. Committing errors in documentation;
5. Permitting, aiding or abetting an unlicensed person to perform activities requiring a professional license;
6. Breaching boundaries with patients;
7. Practicing the profession fraudulently;
8. Practicing while impaired by alcohol or drugs;
9. Being unfit in one’s moral character; and
10.  Unauthorized release of personal information.

In addition to the above-listed types of misbehavior, there are more specific categories of misconduct that apply to particular professionals regulated by the New York OPD.

What Is Professional Misconduct By Health Care Professionals?

For example, and in addition to the categories of misbehavior set forth above, the following, more specific types of actions, when committed by health care professionals, constitute professional misconduct:

1. Abandoning or neglecting a patient under and in need of immediate medical care, without making reasonable arrangements for the continuation of such care;
2. Willfully harassing, abusing or intimidating a patient either physically or verbally;
3. Failing to maintain a record for each patient which accurately reflects the evaluation and treatment of the patient;
4. Using the word “doctor” in offering to perform professional services without also indicating the profession in which the licensee holds a doctorate;
5. Failing to appropriately supervise persons who are authorized to practice only under the supervision of the licensed professional;
6. Guaranteeing that satisfaction or a cure will result from the performance of professional services;
7. Ordering of excessive tests, treatment, or use of treatment facilities not warranted by the patient’s condition;
8. Claiming or using any secret or special method of treatment which the practitioner refuses to divulge to the State Board for the profession;
9. While practicing in certain professional facilities, failing to wear an identifying badge which is conspicuously displayed and legible;
10. Entering into an agreement or arrangement with a pharmacy for the compounding and/or dispensing of coded or specially marked prescriptions; with a pharmacy to dispense certain medications;
11. As to all professional practices conducted under an assumed name, failing to post conspicuously at the site of such practice the names and the licensure field of all of the principal, licensed professionals practicing at that site;
12. Issuing prescriptions, for drugs and devices, which do not contain the date written, the prescriber’s name, address, telephone number, profession and registration number, the patient’s name, address and age, the name, strength and quantity of the prescribed drug or device, and the directions for use by the patient;
13. Failing to use scientifically accepted infection prevention techniques appropriate to each profession for the cleaning and sterilization or disinfection of instruments, devices, materials and work surfaces; or
14. Violating applicable practice guidelines, as determined by the New York State Commissioner of Health, for the compounding of sterile drugs and products.

Circumstances In Which the New York OPD Initiates Investigations

The New York OPD initiates investigations in various circumstances. Three common scenarios are:

• An individual customer or client of the professional, who thinks he or she has been subjected to professional misconduct, submits, to the OPD, a written complaint against the professional.
• A professional colleague, who suspects that a professional may have committed misconduct, reports the professional to the New York OPD.
• Referrals from Other Agencies. The New York State Department of Health enforces care standards at many types of healthcare facilities, from hospitals to nursing homes. If regulators find that facilities have not met professional requirements, they can levy civil fines and report health care professionals to the OPD. Likewise, the New York State Office of the Attorney General informs the New York OPD when certain health care professionals are convicted of crimes, including cases involving Medicaid fraud.

The Law Offices of David S. Rich, LLC skillfully prepares, on behalf of professionals, written statements responding to allegations, which the OPD is investigating, of professional misconduct. Even if the professional has committed the charged violations of laws or rules governing the individual’s profession, the Law Offices of David S. Rich, LLC may be able to bring out mitigating circumstances and to negotiate a favorable settlement.

On-the-Record Interviews

The New York OPD’s investigator reviews the professional’s written statement responding to allegations, which the OPD is investigating, of professional misconduct.

The OPD may require the professional to appear and, in an on-the record interview, to testify under oath.

If you are a professional and the New York OPD has called you to testify under oath in an on-the-record interview, contact the Law Offices of David S. Rich, LLC.

Informal Disciplinary Actions

At the close of the New York OPD investigator’s probe, the investigator analyzes the evidence and the law and determines whether a violation appears to have occurred.

If the investigation does not uncover substantial evidence of professional misconduct, the New York OPD will terminate the investigation. The OPD may, or may not, inform the professional under scrutiny that the OPD has terminated the investigation.

If, conversely, there is substantial evidence of professional misconduct, the New York OPD investigator will generate, and submit to the Investigative Committee, an Investigative Report. A member of the applicable State Board for the profession and the prosecuting attorney will review the Investigative Report and determine whether they want to initiate a formal disciplinary proceeding.

In less serious cases, the matter may be resolved with an informal disciplinary action, such as the issuance by the OPD of a Corrective Action Required Letter or an Administrative Warning letter.

An informal disciplinary action is appropriate where, for example, there is professional misconduct of a minor or technical nature. Professional misconduct of a minor or technical nature includes, for example, isolated instances of violations concerning professional advertising or record keeping, and other isolated violations which do not directly affect or impair the public health.

An informal disciplinary action is one that is not publicly reported. Instead, an informal action is a private admonishment that the New York OPD believes the professional has violated laws or rules governing his or her profession.

Formal Disciplinary Proceedings

In more serious cases, and upon recommendation of the Professional Conduct Officer (the chief administrative officer of the OPD), the New York State Department of Education (the State Department of Education”) initiates, against the licensed professional, formal disciplinary proceedings.

What Are The Penalties That Can Be Imposed In New York OPD Disciplinary Proceedings? In formal disciplinary proceedings, the penalties which the State Board of Regents may impose on professionals found guilty of professional misconduct include, among other penalties: revocation, suspension or annulment of the professional’s license; a monetary fine not to exceed $10,000; a censure; a reprimand; a requirement that the professional pursue a course of education or training; or requirement that the professional perform up to 100 hours of public service, in a manner and at a time and place as directed by the State Board of Regents.

How Can Professionals Settle New York OPD Disciplinary Proceedings? Most formal disciplinary actions settle before litigation through the issuance of a consent order. A consent order is a document which sets forth the OPD’s findings of fact and the sanctions imposed. Summaries of consent orders, as well as summaries of other penalties for professional misconduct imposed by the State Board of Regents, are available to the public online.

If the professional is unable to settle, with the New York OPD, the formal disciplinary action, then the State Department of Education serves the professional with notice of hearing and with s statement of the charges that allege professional misconduct. The charges must concisely state the material facts but do not include the evidence by which the charges are to be proved.

The professional is entitled to file an answer to the charges.

What Happens In A New York OPD Disciplinary Hearing? The professional and the State Department of Education tried the case, before a hearing panel composed of three or more individual members, at a disciplinary hearing. At least two of the individuals serving as hearing panel members must also be members of the State Board for the involved profession. One member of the hearing panel must be a public representative, that is, a consumer of the type(s) of services provided by licensed professionals.

The State Department of Education designates an Administrative Officer, who must be an attorney admitted to practice in New York. The Administrative Officer has the authority to rule on motions, procedures, and legal objections, but the Administrative Officer is not entitled to vote.

An attorney for the State Department of Education serves as prosecutor.

The disciplinary hearing is not as formal as a trial in court, but it takes place in a similar manner. The professional has the rights to appear and testify at the hearing, to be represented by counsel at the hearing, to call and question witnesses, to cross-examine the prosecutor’s witnesses, to issue subpoenas, and to present evidence on the professional’s behalf.

After the disciplinary hearing, the hearing panel issues a written report stating (1) its findings of fact, (2) a determination of guilty or not guilty on each charge, and (3) if there is a determination of guilty, a recommendation of the penalty to be imposed. For the hearing panel to make a determination of guilty, at least two of the voting members of the hearing panel must vote for that determination. The respondent professional is entitled to a copy of the hearing panel’s written report.

Further, the professional has certain rights to appeal from any adverse decision of the hearing panel.

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On behalf of professionals, the Law Offices of David S. Rich, LLC skillfully negotiates, with the New York OPD, settlements of formal disciplinary proceedings. When a settlement cannot be reached, the Law Offices of David S. Rich, LLC aggressively defends the professionals in disciplinary hearings before hearing panels.

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