ABSTRACT
The Administrative Warning is a process utilized extensively in New York State, pursuant to PHL §230, for the resolution of cases where there is substandard medical practice of a minor or technical nature that does not rise to the level of misconduct under the law. These warnings have been effective in alerting and educating practitioners without being public or disciplinary in nature. The New York State Board for Professional Medical Conduct has recognized the value of administrative warnings and increasingly recommends them as a vehicle for informing physicians and physician assistants of practice problems. The recidivism rate appears to be low for those who have been given warnings.
INTRODUCTION
The administrative warning (AW) is an effective prevention and educational tool utilized for the resolution of cases where there is substantial evidence of professional misconduct of a minor or technical nature or of substandard medical practice that does not constitute professional misconduct. Since 2000, the Office of Professional Medical Conduct (OPMC) has delivered approximately 824 AWs. Of those, 524 were delivered in person and the other 260 were given in writing. Although no empirical based study was conducted, a recent statistical in-house study which looked at a five-year period, found a recidivism rate of only 2.14 percent, confirming the effectiveness of the AW as a means to address minor, technical or single instance cases of poor practice. The Board for Professional Medical Conduct has recognized the value of AWs and increasingly recommends them as a vehicle for informing physicians and physician assistants of practice problems.
PUBLIC HEALTH LAW SECTION 230 (10)(M)(II)
Administrative warning and consultation [consultation has been construed to be synonymous with Administrative Warning]. If the director of the office of professional medical conduct, after obtaining the concurrence of a majority of a committee on professional conduct, and after consultation with the executive secretary, determines there is substantial evidence of professional misconduct of a minor or technical nature or of substandard medical practice which does not constitute professional misconduct, the director may issue an administrative warning and/or provide for consultation with a panel of one or more experts, chosen by the director… Administrative warnings and consultations shall be confidential and shall not constitute an adjudication of guilt or be used as evidence that the licensee is guilty of the alleged misconduct. However, in the event of a further allegation of similar misconduct by the same licensee, the matter may be reopened and further proceedings instituted as provided in this section.
CASE SELECTION
The following may not rise to the level of provable misconduct under the law and are often the subject of administrative warnings:
Single act of negligence, which is not gross
Inappropriate/incomplete record keeping
Minor violation of boundaries
Inappropriate physical examinations (perceptions)
Verbal abuse
First instance of wrong site surgery where there is limited patient harm, physician has appropriately corrected and made an admission of error
Inappropriate prescribing practices
Lack of supervision
WRITTEN ADMINISTRATIVE WARNINGS
For lesser offenses, or when the physician is living out of state, the board will often recommend that the AW be delivered in writing. The incident, the scope of the investigation, and the deficiencies are described, followed by a statement outlining the concerns of the board and any recommendations they may have made (Enclosure 1).
IN PERSON ADMINISTRATIVE WARNINGS
The Players
Board, staff and expert consultants play an integral part and are players in every step of the disciplinary process in New York State. Consistent with that philosophy and practice, the director of OPMC has designated the issuance of AWs to be in the hands of the executive secretary to the board, a physician who can comfortably and effectively discuss medical practice issues as well as any other nonpractice issues. When needed, medical coordinators or board members participate in the AW to provide a specialty-specific level of expertise in the discussion. Investigative and senior staff may occasionally play a role during the meeting, serving to answer any administrative questions that may arise. When in person, the subject physician is invited to attend the meeting with or without the presence of legal counsel. In practice, it is estimated that 75 percent of the time, counsel is present. (Enclosure 2).
The Setting and Location
In support of the meaning and importance of the AW, the atmosphere and environment emphasize austerity, ritual and judicial process. Small conference rooms properly furnished with state and national flags, seals and emblems, have been set aside for the purpose of AW meetings at several regional office sites throughout the state. This environment helps to set the tone of the meeting, dispelling any notion that it may be a casual or insignificant matter.
Most in-person AWs are held either in OPMC’s New York City regional office or in its central office in Troy, N.Y. As indicated, the executive secretary also will travel to Syracuse, Rochester or Buffalo to conduct such meetings. Decorum, demeanor and dress are also in keeping with the formality and importance of the occasion. Parties are addressed by their formal titles such as Dr., Mr., Ms., etc. Small talk and joviality are discouraged. Coffee, cell phones and coats are not permitted inside the conference room. Punctuality of all parties is expected.
The Process
After introductions are made, the executive secretary reviews the evolution of the process that led to the recommendation of a warning. It is stressed that although the warning is neither disciplinary nor public, a permanent record of the case file will be kept in the event that future similar instances arise. The subject is advised not to take a defensive posture as the time for interview took place during the investigative phase. Instead he/she is advised to listen and to factor into future practice patterns the concerns raised by the board in order to avoid a repetition of those mistakes and to avoid similar interaction with the board. The case is then summarized and the substantive issues of concern to the board are enumerated. When appropriate, a redacted copy of the expert’s report is provided to the subject physician. If CME is recommended, a list of such courses is offered. Useful handouts, appropriate to the issues of concern are offered on the variety of subjects.
In closing, the subject is asked to identify any changes made to date in his/her practice to avoid a reoccurrence. An opportunity is given to the subject to ask any questions before the meeting is concluded. A follow up letter is mailed to the subject and his attorney, memorializing the meeting (Enclosure 3). A permanent record of the meeting is made for the record (Enclosure 4). When appropriate, the following handouts are given to the subject physician:
The appropriate method of disengaging a patient from the professional relationship
The physical examination environment
Prescribing of controlled drugs
Pain management
Record keeping
Wrong site surgery
Medical ethics
Telemedicine
CONCLUSION
OPMC tracks AWs carefully, ensuring that they are delivered within 30–60 days of the board and director’s decision. Administrative warnings would appear to be an effective prevention, intervention and educational tool for physicians and physician assistants to assist them in correcting practice problems and avoiding more serious violations. Many of the recipients of AWs express appreciation for the opportunity to correct problems before they reach the level of misconduct. Several states issue Letters of Concern for relatively minor deviations from acceptable standards of professional medical conduct. In a similar fashion our office issues letters entitled Physician Informed of Minor Violation(s) (PIMV). These letters do not rise to the level of the issuance of an Administrative Warning.
The ascending ladder of disciplinary concern would be:
An administrative closure containing a closure letter to the physician indicating a concern of this office
A PIMV letter
A written administrative warning
An in-person administrative warning
A disciplinary hearing
Appendix
Footnotes
↵Ansel R. Marks, M.D., J.D., Executive Secretary, New York State Board for Professional Medical Conduct; Maria L. Izquierdo, R.N., Office of Professional Medical Conduct; Elyse Williams, Administrative Assistant, Office of Professional Medical Conduct.
