Proposed Reforms to “Modernize” the Office of Professional Medical Conduct

Governor Cuomo’s recently released State of the State Plan and 2022 Health budget contain many proposals that impact health care professionals in New York.


A link to Governor Cuomo’s 2021 State of the State Plan summary is available here: https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/SOTS2021Book_Final.pdf


The text of the relevant portion of the Fiscal Year 2022 New York State Executive Budget Health and Mental Hygiene Article VII Legislation budget proposal is available here: https://www.budget.ny.gov/pubs/archive/fy22/ex/artvii/hmh-bill.pdf


Some of these proposals are not matters of first impression, and others are coming at the heels of development and initiatives across the state. One of these proposals is to “Modernize [the] Office of Professional Medical Conduct” through a “comprehensive set of reforms.” These reforms have been proposed before and would, among other things:


1. Require the board of regents to strike a physician or physician assistant from the roster of licensees (terminate their New York license) if they fail to register with the Department for two consecutive registration periods;


2. Require the Commissioner to submit applicants’ fingerprints to the Division of Criminal Justice Services and obtain a confidential criminal history record from the Division and the FBI;


3. Define professional misconduct for physicians and physician assistants to include:

  1. resolution by stipulation or agreement of a complaint alleging a violation of a state or federal statute or regulation, where such violation would otherwise be professional misconduct;

  2. any conduct, not just conduct in the practice of medicine, which evidences moral unfitness to practice medicine;

  3. failing to respond to written communications from or provide relevant records to the Department within ten days (it was previously thirty); and

  4. failing to notify the Department within twenty-four hours of having been charged with or convicted of a crime in any jurisdiction, or of having resolved any proceeding or complaint by resolution or stipulation.

4. Permit the Commissioner to compel production of all relevant documents in the possession of a subject of investigation or inquiry within ten days, or a shorter period, and punish such failure as a violation of the Public Health Law subject to a monetary penalty;


5. Permit the Commissioner to seek a warrant on probable cause of professional misconduct to search any grounds, papers, and effects;


6. Permit the Commissioner to, in his or her sole discretion, disclose any information relating to the investigation of possible instances of professional misconduct; and


7. Expand and liberalize the bases upon which the Commissioner can take pre-hearing summary action against a physician or physician assistant and delay the deadline for the post-action hearing.


The Commissioner need only establish that the licensee’s conduct constitutes “a risk to the health of the people” to take such summary action. Currently, the law requires “imminent danger to the health of the people.”


The Medical Society of the State of New York (“MSSNY”) has been strongly opposed to these reforms, noting that the proposal “would take away important due process for physicians for whom a complaint is filed with the OPMC.” Last year, the MSSNY also expressed opposition to the amendment to Section 230 of the Public Health Law, which requires that all physician practice settings conspicuously post signage, visible to their patients, directing such patients to OPMC’s website for information about their rights and how to report professional misconduct. Our Firm previously issued a legal briefing on the 2020 amendments, and a link to the earlier Legal Briefing is available here at this hyperlink:


Office of Professional Medical Conduct (“OPMC”) Changes for Physicians (lawpf.com)


Our Firm will continue to monitor developments as they relate to health care professionals in New York and our Firm has extensive experience counseling employers and businesses on health care matters, and preparing applicable policies. If you have any questions related to this Legal Briefing, please contact any member of our Firm at 585-730-4773.

This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2021 Law Offices of Pullano & Farrow PLLC

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