Reviewed by Paul E. Walker

Key Takeaways

  • Physicians go to OPMC; nurses and most other licensees go to OPD.
  • Never attend an OPMC or OPD interview without preparing with a lawyer.
  • An investigation is confidential and does not mean you will be disciplined.

If you find that you are the target of a State Education Department, Office of Professional Discipline (OPD) investigation, understanding how these work and how to best protect your New York State license is critical. This is true regardless of whether you are a nurse, podiatrist, physical therapist, or any other type of healthcare professional other than a physician or a physician assistant. Physicians and physician assistants are investigated by the Department of Health’s Office of Professional Medical Conduct (OPMC).

How an OPD Investigation Begins

When OPD is made aware of a complaint against you, an investigative process is set in motion. OPD will first collect evidence in the form of interviews with patients, other staff members, and anyone else who might have knowledge of the issues in question. They also often are in possession of videos that may show who was in a facility and at exactly what time events occurred. In addition, they will have copies of any documents that may be applicable, some of which might have been authored by you.

The OPD Interview

After doing this phase of the investigation, OPD will invite you to an Interview with the investigator. Please do not attend this Interview without preparing for it with an attorney. It is imperative that you understand what the point of the investigation is, and how you can prepare to give the best possible presentation. Remember, your entire career can be in jeopardy and, therefore, you must be ready to defend yourself. This Interview will be recorded by OPD, and you can obtain a copy of the recording. What you say in this Interview can either ruin your professional life or save it.

At the Interview, the investigator may show you parts of videos taken in a facility, and the time will be visible. OPD will not give you copies of these videos before the interview, so you have to be careful that you do not make statements that are completely contradicted by the objective evidence in the videos.

For example, you might state that you saw a patient at about 10:15 in the morning and that you immediately called for assistance from other staff members due to an emergency. However, the investigator can then show you the video, which proves that you entered the patient’s room at 10:25 and did not call for any assistance until 10:56. As is obvious, you did not remember the timing correctly, and now it appears that you were lying to the investigator. You have to really think about these types of issues before your interview so that you do not, by mistake, state things that are clearly not accurate.

The investigator might also read portions of statements from other witnesses or play a recorded telephone conversation, perhaps a 911 call, and these pieces of evidence might help your case or harm it. In any event, you can see that you must be as prepared as possible for this Interview.

What Happens After the Interview

After the Interview, the investigator will present the case to a Board member to make a decision concerning the outcome of the matter. The Board member may simply say that the case should be closed without further action, and if that happens, you will no longer have to deal with it. However, the Board member may say that some type of disciplinary action should be taken.

This can be the demand, for example, that you surrender your license or that you should have a suspension of your license for a period of time, typically for one, two, or three months, that your practice be monitored for a period of time, or that you should be assessed a fine and be required to take certain Continuing Education courses in a particular subject. Most types of disciplinary action will be reported on the Department website and will be reported to the National Practitioner Data Bank.

You can, of course, decide that you will not agree to the suggested disciplinary action and that will cause your case to be put in line for a formal Hearing, where a Panel will hear your case, review the evidence, take the testimony of you and other witnesses, and render a decision. This is a very dangerous road to travel, as you can end up with a Panel recommendation that your license be severely impacted or even revoked.

There is an intermediary step called the Informal Settlement Conference where you can attempt to settle your case on better terms without attending a formal Hearing.

If You Are a Physician: How OPMC Investigations Work

Physicians, physician assistants, and specialist assistants undergo parallel processes at OPMC, in accordance with Public Health Law § 230. The general process is as follows:

  1. Screening: OPMC is required to review every complaint received, though complaints about fees, bedside manner, or wait times typically fall outside of its authority. In 2023, OPMC received 8,588 complaints, of which approximately 47% moved on to further investigations, according to the Office’s annual report.
  2. Evidence gathering: Investigators will collect records and interview colleagues, staff, and patients. Additionally, OPMC may also order a broader review of patient and office records, even asking the court to compel compliance if you refuse.
  3. The interview: You must receive at least 20 days’ written notice explaining the conduct that prompted the investigation, the issues, the time frame, and the patients involved. You may bring a lawyer and a stenographer to the interview, and you will receive a copy of the interviewer’s report.
  4. The committee’s decision: A committee of two physicians and one lay member may close the case, issue a confidential administrative warning, or refer the matter for disciplinary charges.
  5. Resolution: Most cases that reach discipline are resolved through agreements, which accounted for nearly 80% of Board actions taken in 2023. The remainder proceed to a hearing, and a hearing committee’s decisions may be taken to the Administrative Review Board within 14 days under Public Health Law § 230-c.

For more on the interview itself, see our OPMC and OPD interview guide.

Common Misconceptions About OPMC Investigations

  • “An investigation means I am guilty.” 
    • It means a complaint was received and must be reviewed, not that anything has been decided.
  • “My license is automatically suspended.”
    • It is not. Summary suspension requires a finding of imminent danger; otherwise, you may generally keep practicing while investigations proceed.
  • “The investigation is public.” 
    • It is confidential. Only a final disciplinary action becomes public, and administrative warnings stay confidential.
  • “It must have been a patient.”
    • Complaints also come from colleagues, facilities, insurers, and government agencies, and licensees and health facilities have their own duty to report.
  • “If I cooperate, it will be dismissed.” 
    • Cooperation is expected, not rewarded. Failing to respond to the Department of Health’s written requests within 30 days is itself misconduct under Education Law § 6530.
  • “Every case ends in a suspension.”
    • Many are closed, and others end with a warning or a lesser penalty.

How to Prepare for an Investigation

If you are facing an OPMC or OPD investigation, the same preparation typically applies:

  • Carefully read the notice, as it informs you of what you must prepare for
  • Retain the guidance of an attorney before saying anything to an investigator, even if you believe the complaint has no standing or merit
  • Respond to all written requests on time, and provide all requested records
  • Create a timeline of events from objective sources, like charts, logs, and schedules prior to your interview, to ensure there are no conflicting accounts
  • Do not alter, backfill, or delete records, as this will result in a more serious problem than the original complaints
  • Keep a consistent and honest account
  • Do not provide more information than what is necessary

The lesson to be learned here is that you truly must be prepared to attend an Interview with OPD. You really should have an experienced trial attorney help you with this process and attend the Interview with you. Your performance at the Interview can make the difference between the matter being closed without any damage to you and having severe disciplinary action taken, which can irrevocably damage your professional life.

Contact an Experienced New York Professional Defense Firm

At Walker Medical Law, we understand how difficult an OPMC/OPD interview can be to navigate, which is why our firm is committed to doing everything in our power to help you fight for the best possible outcome for your unique situation. If you need legal assistance, please do not hesitate to contact our firm today.