New York OPD Investigations and Disciplinary Hearings
Law Offices of David S. Rich has substantial experience representing licensed professionals in misconduct investigations and in disciplinary proceedings brought by New York State Department of Education’s Office of Professional Discipline (New York OPD or NY OPD).
Whom We Represent
The licensed professionals whom we defend in misconduct investigations and disciplinary proceedings brought by New York’s Office of Professional Discipline 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 New York’s Office of Professional Discipline include licensed professionals in other industries such as:
- Accountants
- Architects and landscape architects
- Court reporters
- Engineers
- Geologists
- Interior designers
- Land surveyors
- Ophthalmic dispensers
- Polysomnographic technologists
What We Do
Law Offices of David S. Rich represents licensed professionals in all stages of the professional disciplinary process. We: (1) draft the required, signed statements in response to the allegations; (2) prepare legal defenses by identifying mitigating circumstances from researching published opinions of NY’s Appellate Division, Third Department, reviewing decisions of the NY State’s Board of Regents imposing professional discipline; (3) prepare professionals for on-the-record interviews and take part as the professionals’ counsel; (4) answer statements of charges; (5) negotiate settlements; (6) make pre-hearing motions; and (7) litigate disciplinary hearings.
How Disciplinary Investigations Arise
An investigator in New York’s Office of Professional Discipline (“NY OPD”) calls the professional’s practice or business, identifies himself or herself as being from OPD, and asks the licensed professional for a copy of their records pertaining to the case or matter about which a complaint has been received.
The NY OPD investigator may also ask the licensed professional to provide a signed, written statement about potential violations of laws or rules governing the individual’s profession.
Furthermore, New York’s Office of Professional Discipline may order the licensed professional to testify under oath in an on-the-record interview.
Disregarding the Office of Professional Discipline’s requests for information typically results in a significant penalty for the licensed professional.
If you are a licensed professional in the New York City metro area and New York’s Office of Professional Discipline (NY OPD) has contacted you, contact Law Offices of David S. Rich.
What Is Professional Misconduct?
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, thereby exposing the practitioner to discipline.
Types of alleged misconduct most frequently resulting in misconduct investigations and disciplinary hearings are:
- Practicing the profession with negligence or incompetence on multiple occasions;
- Being convicted of a crime in any jurisdiction;
- Practicing beyond the authorized scope of the profession;
- Committing errors in documentation;
- Permitting, aiding or abetting an unlicensed person to perform activities that require a professional license;
- Breaching boundaries with patients;
- Practicing the profession fraudulently;
- Practicing while impaired by alcohol or drugs;
- Being unfit in one’s moral character; and
- 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 professions regulated by New York’s Office of Professional Discipline.
What is Professional Misconduct by Healthcare Professionals?
In addition to the categories of misbehavior listed above, the following types of actions specific to healthcare providers constitute professional misconduct:
- Abandoning or neglecting a patient under, and in need of, immediate medical care, without making reasonable arrangements for the continuation of such care;
- Willfully harassing, abusing or intimidating a patient either physically or verbally;
- Failing to maintain a record for each patient which accurately reflects the evaluation and treatment of the patient;
- Using the word “doctor” in offering to perform professional services without also indicating the profession in which the licensee holds a doctorate;
- Failing to appropriately supervise persons who are authorized to practice only under the supervision of the licensed professional;
- Guaranteeing that satisfaction or a cure will result from the performance of professional services;
- Ordering excessive tests, treatment, or use of treatment facilities that is not warranted by the patient’s condition;
- Claiming to use, or using, any secret or special method of treatment which the practitioner refuses to divulge to the State Board for the profession;
- While practicing in certain professional facilities, failing to wear an identifying badge which is conspicuously displayed and legible;
- Entering into an agreement or arrangement with a pharmacy for the compounding and/or dispensing of coded or specially marked prescriptions; to dispense certain medications;
- 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;
- Issuing prescriptions, for drugs and devices, without a date, prescriber’s name, address, telephone number, profession and registration number, patient’s name, address and age, name, strength and quantity of the prescribed drug or device, and directions for use by the patient;
- 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
- Violating applicable practice guidelines, as determined by NY State Commissioner of Health, for the compounding of sterile drugs and products.
When Does NY’s Office of Professional Discipline Initiate Investigations?
New York’s Office of Professional Discipline initiates investigations in various circumstances. Three common scenarios are:
- A customer or client submits a written complaint against the licensed professional to New York’s Office of Professional Discipline.
- A professional colleague, who suspects that a licensed professional may have committed misconduct, reports the professional to New York’s Office of Professional Disipline.
- Referrals by other agencies. NY 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 NY’s Office of Professional Discipline. Likewise, NY State’s Office of the Attorney General informs NY’s Office of Professional Discipline when certain health care professionals are convicted of crimes, including cases involving Medicaid fraud.
On behalf of its licensed professional clients, Law Offices of David S. Rich skillfully prepares detailed written responses to the allegations of professional misconduct that NY’s Office of Professional Discipline is investigating.
Even if the licensed professional has committed the charged violations of laws or rules governing the individual’s profession, Law Offices of David S. Rich may be able to bring out mitigating circumstances and to negotiate a favorable settlement.
On-the-Record Interviews
The NY OPD investigator reviews the professional’s written response to the allegations of professional misconduct that NY OPD is investigating.
NY’s Office of Professional Discipline may also require the professional to appear and testify under oath in an on-the record interview.
If you are a licensed professional, and NY’s Office of Professional Displine has called you to testify under oath in an on-the-record interview, contact Law Offices of David S. Rich.
Informal Disciplinary Actions
At the close of the NY OPD investigator’s probe, the investigator analyzes the evidence and the law and then determines whether a violation appears to have occurred.
If the investigation does not uncover substantial evidence of professional misconduct, NY’s Office of Professional Discipline typically terminates the investigation. The NY OPD may, or may not, inform the professional that has been under their scrutiny that they have terminated the investigation.
If, conversely, there is substantial evidence that the licensed professional committed professional misconduct, the NY OPD investigator will submit an Investigative Report to the Investigative Committee.
A member of the applicable State Board for the profession and the prosecuting attorney will review the Investigative Report and determine whether 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 New York’s Office of Professional Discipline of a Corrective Action Required Letter or an Administrative Warning letter.
An informal disciplinary action is appropriate where there is professional misconduct of a minor or technical nature, such as isolated instances of violations concerning professional advertising or record keeping, and other isolated violations that do not directly affect or impair the public health.
An informal disciplinary action is one that is not publicly reported. Instead, it is a private admonishment that New York’s Office of Professional Discipline believes the licensed 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 NY State Department of Education initiates formal disciplinary proceedings against the licensed professional.
What Penalties Can Be Imposed In New York OPD Disciplinary Proceedings?
In formal disciplinary proceedings, the penalties which the State Board of Regents may impose on licensed professionals who have been 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’s Office of Professional Discipline Disciplinary Proceedings?
Most formal disciplinary actions settle before litigation through the issuance of a consent order, 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 licensed professional is unable to settle on a formal disciplinary actions with NY’s Office of Professional Discipline, then the State Department of Education will serve the licensed professional with notice of hearing and with a statement of the charges that allege the 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 NY Office of Professional Discipline Hearing?
The licensed professional and the State Department of Education try the case before a hearing panel. The hearing panel is composed of three or more individuals, at least two of which 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 professional.
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 is not entitled to vote.
An attorney for the State Department of Education serves as prosecutor.
Though the disciplinary hearing is not as formal as a trial in court, it does take place in a similar manner. The licensed professional has the right to appear and testify at the hearing, to be represented by an attorney 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 licensed professional is entitled to a copy of the hearing panel’s written report.
Further, the licensed professional has certain rights to appeal an adverse decision of the hearing panel.
On behalf of licensed professionals, Law Offices of David S. Rich skillfully negotiates, with NY’s Office of Professional Discipline (NY OPD), settlements of formal disciplinary proceedings. When a settlement cannot be reached, Law Offices of David S. Rich vigorously defends licensed professionals at disciplinary hearings before the hearing panels.
Return to Practice Areas page.
Law Offices of David S. Rich has 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 (New York OPD or NY OPD).
Whom We Represent
The licensed professionals whom we defend in misconduct investigations and disciplinary proceedings brought by New York’s Office of Professional Discipline 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 New York’s Office of Professional Discipline include licensed professionals in other industries such as:
- Accountants
- Architects and landscape architects
- Court reporters
- Engineers
- Geologists
- Interior designers
- Land surveyors
- Ophthalmic dispensers
- Polysomnographic technologists
What We Do
Law Offices of David S. Rich represents licensed professionals in all stages of the professional disciplinary process. We: (1) draft the required, signed statements in response to the allegations; (2) prepare legal defenses by identifying mitigating circumstances from researching published opinions of NY’s Appellate Division, Third Department, reviewing decisions of the NY State’s Board of Regents imposing professional discipline; (3) prepare professionals for on-the-record interviews and take part as the professionals’ counsel; (4) answer statements of charges; (5) negotiate settlements; (6) make pre-hearing motions; and (7) litigate disciplinary hearings.
How Disciplinary Investigations Arise
An investigator in New York’s Office of Professional Discipline (“NY 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 NY 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, NY OPD may, in an on-the-record interview, make the professional testify under oath.
Disregarding the OPD’s requests for information typically results in a significant penalty.
If you are a professional in the New York City metro area and New York’s Office of Professional Discipline (NY OPD) has contacted you, contact Law Offices of David S. Rich.
What Is Professional Misconduct?
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, thereby exposing the practitioner to discipline.
Types of misconduct most frequently resulting in misconduct investigations and disciplinary hearings are:
- Practicing the profession, on more than one occasion, with negligence or incompetence;
- Being convicted, in any jurisdiction, of a crime;
- Practicing beyond the authorized scope of the profession;
- Committing errors in documentation;
- Permitting, aiding or abetting an unlicensed person to perform activities that require a professional license;
- Breaching boundaries with patients;
- Practicing the profession fraudulently;
- Practicing while impaired by alcohol or drugs;
- Being unfit in one’s moral character; and
- 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 New York’s Office of Professional Discipline.
What is Professional Misconduct by Health Care Professionals?
In addition to the categories of misbehavior listed above, the following, more specific types of actions, when committed by health care professionals, constitute professional misconduct:
- Abandoning or neglecting a patient under, and in need of, immediate medical care, without making reasonable arrangements for the continuation of such care;
- Willfully harassing, abusing or intimidating a patient either physically or verbally;
- Failing to maintain a record for each patient which accurately reflects the evaluation and treatment of the patient;
- Using the word “doctor” in offering to perform professional services without also indicating the profession in which the licensee holds a doctorate;
- Failing to appropriately supervise persons who are authorized to practice only under the supervision of the licensed professional;
- Guaranteeing that satisfaction or a cure will result from the performance of professional services;
- Ordering of excessive tests, treatment, or use of treatment facilities not warranted by the patient’s condition;
- Claiming or using any secret or special method of treatment which the practitioner refuses to divulge to the State Board for the profession;
- While practicing in certain professional facilities, failing to wear an identifying badge which is conspicuously displayed and legible;
- 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;
- 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;
- 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;
- 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
- Violating applicable practice guidelines, as determined by New York State Commissioner of Health, for the compounding of sterile drugs and products.
Circumstances In Which New York Office of Professional Discipline Initiates Investigations
New York’s Office of Professional Discipline initiates investigations in various circumstances. Three common scenarios are:
- A customer or client submits a written complaint against the professional to New York’s Office of Professional Discipline.
- A professional colleague, who suspects that a professional may have committed misconduct, reports the professional to New York’s Office of Professional Disipline.
- Referrals from Other Agencies. 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 New York’s Office of Professional Discipline. Likewise, New York State’s Office of the Attorney General informs New York’s Office of Professional Discipline when certain health care professionals are convicted of crimes, including cases involving Medicaid fraud.
Law Offices of David S. Rich skillfully prepares, on behalf of professionals, written statements responding to the allegations of professional misconduct that New York’s Office of Professional Discipline is investigating. Even if the professional has committed the charged violations of laws or rules governing the individual’s profession, Law Offices of David S. Rich may be able to bring out mitigating circumstances and to negotiate a favorable settlement.
On-the-Record Interviews
The NY OPD investigator reviews the professional’s written response to the allegations of professional misconduct that NY OPD is investigating.
NY OPD may require the professional to appear and testify under oath in an on-the record interview.
If you are a professional and New York’s Office of Professional Displine has called you to testify under oath in an on-the-record interview, contact Law Offices of David S. Rich.
Informal Disciplinary Actions
At the close of the NY OPD investigator’s probe, the investigator analyzes the evidence and the law and then determines whether a violation appears to have occurred.
If the investigation does not uncover substantial evidence of professional misconduct, NY Office of Professional Discipline typically terminates the investigation. The OPD may, or may not, inform the professional that has been under their scrutiny that they have terminated the investigation.
If, conversely, there is substantial evidence of professional misconduct, the NY OPD investigator will submit an Investigative Report to the Investigative Committee. A member of the applicable State Board for the profession and the prosecuting attorney will review the Investigative Report and determine whether 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 NY’s Office of Professional Discipline 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 such as isolated instances of violations concerning professional advertising or record keeping, and other isolated violations that 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 NY 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 NY State Department of Education initiates formal disciplinary proceedings against the licensed professional.
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, 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 New York OPD, the formal disciplinary action, then the State Department of Education serves the professional with notice of hearing and with a 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 try the case before a hearing panel, which is composed of three or more individual members, at a disciplinary hearing. At least two of the individuals serving on the hearing panel 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 is not entitled to vote.
An attorney for the State Department of Education serves as prosecutor.
Though the disciplinary hearing is not as formal as a trial in court, it does take place in a similar manner. The professional has the right 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 any adverse decision of the hearing panel.
* * * *
On behalf of professionals, Law Offices of David S. Rich skillfully negotiates, with New York’s Office of Professional Discipline (NY OPD), settlements of formal disciplinary proceedings. When a settlement cannot be reached, Law Offices of David S. Rich vigorously defends professionals at disciplinary hearings before the hearing panels.
Return to Practice Areas page.
