The Office of Professional Medical Conduct (OPMC), a branch of the New York State Department of Health (NYSDOH), has recently undertaken a more aggressive approach to investigate and, in some cases, begin disciplinary action against physicians who have failed to update their New York State Physician Profile.
An uptick in such investigations has created a nightmare for some physicians simply because they did not take the requisite time to ensure that the information listed on their Profile was current. At a minimum, you are required to update your Profile within six months of your biennial medical license registration. As part of the re-registration process no physician may be re-registered without updating his or her profile.1 As part of the update to your Profile you will have to attest to the accuracy of the information provided. “A physician who knowingly provides materially inaccurate information under this section shall be guilty of professional misconduct.”2 So, be careful to review your updated Profile before it is submitted, especially if anyone other than you prepares it.
To update your Profile, access your Health Commerce System Account (HCS) by visiting https://commerce.health.state.ny.us. Click on the “Physician Profile Survey” icon to review and update the profile information. If you do not have an HCS account, you should request an application online at https://hcsteamwork1.health.state.ny.us/pub/top.html. The HCS site support line is 866-529-1890.
If you do not have an HCS account yet, you can print your Profile by accessing the New York State Physician Profile web site. Make changes on the printout and either fax it to 917-228-8700 or mail it to NY State Department of Health, PO Box 5007, New York, NY 10274-5007. This method takes about ten days to result in the update of your Profile. Any questions you have regarding the Physician Profile or this requirement can be answered by the New York State Physician Profile Help Desk at 888-338-6998.
When are Medical Malpractice Actions Reported?
Aside from self-reporting, information regarding a settlement/award will be provided to the National Practitioner Data Bank by the insurance carrier or entity that paid it on your behalf. The Data Bank will forward this information to the NYSDOH. The NYSDOH will evaluate the information to determine if it will report the settlement/award in your profile.
Settlements or awards will automatically appear in your profile if within the past ten years there have been more than two settlements/awards, or if the Commissioner of Health (COH) determines that a particular settlement/award is relevant to patient decision making.3 Cases involving a patient death or serious impairment can fall under such review. If the COH determines that a settlement/award will be reported, you will be notified and given thirty days to initiate an appeal.
If you wish to appeal a COH decision, obtaining legal counsel through your professional liability insurance policy or privately may prevent a settlement/award from being reported prematurely in your profile. For example, a reason your case settled may be that, despite your treatment having been medically defensible, the potential exposure in an unfavorable venue exceeded your available policy limits. Valid arguments put forth to the COH may keep your Profile intact.
If you fail to take advantage of the appeal you will waive your right to challenge the decision and your Profile will reference a settlement/award without providing any details of the facts or the amount of the settlement/award. However, the amount of the settlement/award will be assigned a gradation of average, below average or above average, depending on comparative statistical/geographical data for your practice region.
Because your Profile is easily accessible to the public, you have a professional interest in keeping it current, fair and accurate. If you are unsure when you last updated your profile, take a moment to review it, as your patients see it at nydoctorprofile.com, and ensure that it is current.
John J. Barbera is a Senior Partner in the Health Care Law Group at Martin Clearwater & Bell LLP and a member of the Professional Discipline Sub-Committee of the Health Care Section of the New York State Bar Association.
- NYS Public Health Law §2995-a (4) & NYS Education Law, §6524 (11)
- NYS Public Health Law §2995-a (7)
- NYS Public Health Law §2995-a (1)(e)