New York Gov. Andrew Cuomo last month announced a proposal for strengthening the oversight of physicians and other medical professionals to better protect patients as part of his State of the State agenda.
Cuomo proposed a comprehensive set of reforms to ensure that the Department of Health’s Office of Professional Medical Conduct has adequate and effective tools to investigate, discipline and monitor physicians, physician assistants and specialist assistants licensed in New York, which he says will provide greater transparency in physician discipline and reduce the length of misconduct investigations.
“The first responsibility of any medical professional is do no harm, and when someone violates that oath, they must be held appropriately accountable,” Cuomo said. “These sweeping proposals will help ensure patients have access to critical information they need to make informed decisions about their healthcare and give state health regulators more tools to investigate and penalize providers for dangerous, unethical or illegal behavior.”
Under current New York law, the Department of Health is prohibited from confirming the presence or absence of an investigation. The Cuomo administration believes healthcare consumers and patients deserve access to this information, when the commissioner of health deems it’s warranted. Additionally, certain “expedited processes” exist in the law, wherein a physician may be issued a warning for a minor and technical violation, which does not rise to the level of prosecutable misconduct. These warnings are, under current law, non-disciplinary and non-public, but will now be made publicly available.
Eliminating Lifetime Licensure
Under current law, physicians, physician assistants and specialist assistants licensed in New York remain licensed for life unless some action is taken against their licenses, even if they move out of state. The governor’s proposal would require doctors to periodically renew their New York State Medical Licenses or lose them, along with the ability to practice medicine in New York.
Additionally, the Office of Professional Medical Conduct (OPMC) would be required to investigate every New York state licensee charged with misconduct in another state, but in many cases, those licensees have not practiced medicine in New York in several years, if ever. If doctors practicing outside the state could place their New York licenses in an inactive status, it would allow OPMC to dedicate its resources to investigating complaints against licensees who are practicing here.
Reform Public Health Law Provisions
To strengthen public safety, Cuomo proposes updating the public health law to allow the state health commissioner to summarily suspend a physician’s license at the start of an investigation if the commissioner deems that physician a risk to the public. Current law requires a physician to be an imminent danger before their license can be suspended.
According to the Cuomo administration, physicians have many due process procedural rights under current state law that impede and greatly lengthen the progress of an investigation and disciplinary finding. In 2018, the average amount of time to close a full OPMC field investigation was 307 days. These permitted delays allow physicians who are potentially bad actors to continue practicing medicine at patients’ risk. Thus, the governor believes that the health commissioner and OPMC must have the authority and tools necessary to act to protect the public.
Ensure Consumers Have Up-To-Date, Accessible Information About Physicians
The Physician Profile is a publicly available, online resource providing information about individual New York state licensed physicians, including medical education, translation services at the doctor’s office and information about legal actions taken against the doctor.
However, other important information, such as insurance network participation, practice location, hours of operation and whether the office is accepting new patients, are currently either optional or not required under the public health law. To help ensure consumers can make informed decisions about their healthcare, the Cuomo administration intends to introduce legislation to ensure the public can access this critical information.
Doctors Have Concern Over Due Process
In response to the governor’s proposal, the Medical Society of the State of New York voiced concern that the proposal fails to strike a balance between improving public safety and protecting against the consequences of unfounded allegations against medical workers.
“We are extremely concerned about the scope of the proposals that would essentially strip physicians of important due process rights when a complaint has been filed with the Office of Professional Medical Conduct,” said Art Fougner, MD, Medical Society of the State of New York president, in a statement. “We agree with the importance of acting quickly when it is imperative, but these proposals would completely undermine important and longstanding due process protections. Given that most complaints are dismissed without any sanction or action, this series of proposed changes to bypass these rights would create a substantial possibility of unfairly destroying an innocent physician’s career.
“Due to our enormous liability costs and excessive regulations, New York already has the dubious reputation of being the worst state in the country to be a physician. Proposals like this will make it even more unattractive for physicians to choose New York to deliver patient care.”