The Office of Professional Discipline, OPD, is the enforcement arm of the New York State Department of Education and it has jurisdiction over the medical licenses of nurses, physical therapists, massage therapists, acupuncturists, and other non-physician and non-physician assistant licenses.
When there is an issue concerning the conduct of one of these professionals, OPD has a system put in place where the professional can attend an Informal Settlement Conference, ISC, the purpose of which is to try to reach an agreed-upon settlement of the issue to avoid going to a Formal Hearing. The ISC has an attorney from the Education Department, a facilitator, and a member of the Board of the specialty involved. There is no court reporter and anything said at this conference cannot be used against the professional at a later hearing. The professional, directly and through his/her attorney, can present the facts in the light most favorable to his/her case. Any type of documents can be referred to and hearsay testimony is not objected to. The idea is to convince the Board member to agree to a resolution that is fair to the professional and the Department.
I strongly recommend that every professional attend an ISC because there is nothing to lose and a great deal to gain. If you can fashion a settlement that you can live with, you are much better off than going to a hearing where you might well end up with a much worse outcome. If you cannot reach a settlement at the ISC, you have not lost any ammunition you might have to defend yourself with at a hearing.
For example, I recently represented a nurse who had, without argument, done the wrong thing regarding obtaining medication. The hospital fired the nurse because of this matter and had reported the issue to OPD. The Department’s position was that they would accept nothing less than an actual suspension from practice for two full months with two years of probation. I stated that this type of disciplinary action would cause the nurse to lose his/her current employment and would, in fact, make the nurse pretty much completely unemployable in the future. I pointed out that there had been no financial gain to the nurse and that the medication was actually taken to treat another nurse who was very ill. Lastly, I showed that the nurse had been employed at that hospital for over 30 years without a hint of unprofessional conduct. The thrust of my defense was that any actual suspension would truly end the career of the nurse and that was much too severe of a penalty for the act that was committed.
In the end, the Department agreed that an actual suspension was not necessary or fair and we ended up agreeing to two years of probation with no time of being out of actual practice. This, in my opinion, was a fair disposition of the matter and left the nurse with a viable future in the nursing field.
If you are the subject of an investigation by OPD, be certain to think about trying to resolve the matter at the ISC. By attending the ISC you give yourself the opportunity to end the investigation in a way that is the least harmful to your career. While agreeing to any type of discipline is damaging to a professional, often settlement is the best way to terminate the matter. The idea is to try to put an end to the investigation with a result that does not impede your progress as a professional. If you cannot reach an agreement, then you can always go to a Hearing on the matter. The problem is that at the Hearing, you might well end up with an outcome that is much worse than what could have been negotiated at the ISC.
Be sure you know all of the avenues that are available to you so that you can make an informed decision regarding the outcome of this investigation.
