YOUR PHYSICIAN ASSISTANT LICENSE AT RISK; ALL DAY, EVERY DAY
By: David L. Adelson, Esq.
Thomas M. Gallo, RPA, JD
“What are you doing?” and “Who are you doing it with?” Both of these questions might take you back to your childhood but as an adult professional, practicing as a physician assistant (“PA”), these questions are of vital, and ever increasing, importance – and your answers may well place your license to practice at risk.
To properly manage this risk, every PA must first be aware of the appropriate areas of inquiry by the Office of Professional Medical Conduct (“OPMC”). What can OPMC ask when it comes to what you do in your own free time and in your own home? Most PA’s respond by declaring “It’s none of your business!” or “That has no connection to my work as a PA!” Unfortunately, as a licensed professional, how you conduct your life, and your practice, 24 hours a day falls squarely within the purview of the OPMC and, therefore, can directly affect the status of your professional license.
Who is the OPMC and what do they do?
As the state agency that oversees PA licensure they have extensive regulatory powers. Quoting the New York State Department of Health’s (“NYSDOH”) own description - “OPMC investigates complaints regarding physicians, physician assistants, specialist assistants and monitors practitioners that are subject to Orders of the State Board of Professional Medical Conduct.” In essence, OPMC is the agency that can impose professional discipline upon you if it is determined that your actions constitute misconduct.
However, “misconduct” is not only related to issues that occur in the act of treating a patient or practicing medicine. Examples of misconduct, as defined by OPMC, are the filing of any type of false report or application, being accused of or convicted of a crime, substance abuse, inappropriate prescribing, marital and family issues, psychological problems, financial issues, inappropriate behavior and/or relationships and inappropriate web postings. In essence, the list of potential areas of inquiry is endless.
Proper risk management also includes every PA recognizing the hard fact that working as a clinical physician assistant you are the subject of constant scrutiny. Most PA’s are well aware that clinical negligence can give rise to medical malpractice liability, however, that is not the only risk associated with clinical practice. OPMC will investigate not only claims of negligence, but also countless other patient related complaints, including but not limited to, discrimination, employment issues (i.e., terminations, co-worker complaints, sexual harassment, hostile work environment etc.). Practice related matters such as improper practice ownership, insurance fraud, third party payers, improper referrals and the Anti-Kickback Statute have also all led to license threatening investigations and OPMC actions.
Even in a non-clinical setting, such as in academia or secondary employment, PA’s are also subject to close scrutiny. Regardless of the nature of your position, as a licensed professional, you may become the subject of an investigation if your conduct simply appears to be “immoral” or “inappropriate.” Even conduct occurring during volunteer service may jeopardize your license to practice as a PA.
Personal and Family Life
Personal consumption of alcohol and subsequent inappropriate behavior, even outside of working hours and not directly affecting patients, could result in an investigation by OPMC. Not surprisingly, any use of illegal drugs, or improper use of legal drugs, could also result in an OPMC investigation and potential license revocation. A “Driving While Intoxicated” conviction will readily be referred to OPMC. Family matters, including failing to pay alimony and/or child support, being the subject of a restraining order, facing claims of harassment and/or stalking have all been part of OPMC investigations and actions.
Moreover, the electronic age that we now live in has increased the scope of OPMC investigations to include actions pertaining to inappropriate emails, texting, social website postings, blog posts and many other forms of electronic media. The permanency and high speed transmission of these communications renders them especially dangerous. Financial matters such as bankruptcy, judgments and/or defaulting on student loans can also be evidence of misconduct and acted on by OPMC as well.
All Aspects of Your Life
Essentially, all aspects of your life can result in potential licensure investigations and/or actions. Esoteric examples such as: tax fraud, embezzlement from any agency or institution, a shoplifting conviction, and even theft of cablevision services have all resulted in loss of licenses. Also, if an out of state medical license is revoked, or subject to any other discipline, OPMC will investigate the clinician’s New York license. Terminations from previous employment and applications from previous employment, and even subsequent employers, are frequently the subject of investigations. Dual relationships with patients, and/or their family members – viewed as boundary violations – have also been deemed professional misconduct.
What you do and who you do it with, is no longer a private matter. OPMC takes the position that the State of New York has bestowed upon you society’s ultimate privilege – the ability to practice medicine - and as such, they retain the right to inquire into almost any area of your professional or personal life. In doing so, OPMC has the authority to discipline PA’s by issuing a wide range of devastating sanctions ranging from a warning to seeking permanent license revocation (and/or just about any form of punishment measured between those two ends of the discipline spectrum).
Your license is your life, your livelihood and your greatest asset. As such, you must conduct your personal and professional conduct in strict accord with the law - and the expectations of OPMC. To do otherwise only places you at the highest level of risk and jeopardizes all that every PA has worked tirelessly to achieve.
Kern Augustine, P.C., Attorneys to Health Professionals, www.DrLaw.com, is solely devoted to the representation and defense of physicians and other health care professionals. The authors of this article may be contacted at 1‐800‐445‐0954 or via email at info@DrLaw.com.