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About To Settle with The Government? Talk to a Health Care Attorney First!

On Behalf of | Feb 14, 2023 | Articles, Blog, Healthcare Law, Publications

By Nicole A. Emanuele, Esq. Email Nicole

Are you a physician who has found yourself at the cusp of resolving a proceeding or dispute with a state or federal entity involving an alleged violation of state or federal law? Your first thought may be to settle the matter quickly and quietly by entering into a stipulation or agreement with the state or federal agency. Before doing so, however, you and your counsel should consider the potential effect that a stipulation or agreement may have with the State Board for Professional Medical Conduct (“BPMC”), whose office is responsible for investigating and disciplining physicians with respect to matters involving their medical licenses.

After resolution of the proceeding by stipulation or agreement, a licensee found guilty of violating a federal statute or regulation in an adjudicatory proceeding, where the violation would constitute professional misconduct, can be charged with professional misconduct pursuant to Education Law § 6530(9)(c) (“Educ. Law § 6530(9)(c)”). Essentially, if a physician enters into a stipulation or agreement pursuant to a violation of which would constitute professional misconduct, the physician can then be charged with misconduct pursuant to Educ. Law § 6530(9)(c), which could lead to a license discipline.

In recent years we have seen the BPMC sustain charges against physicians for professional misconduct as defined by Education Law § 6530(9)(c). For example, in 2018 John Doe, M.D. (“Respondent”) entered into Stipulation and Order of Settlement and Dismissal (“Stipulation and Order”) with the United States Attorney for the Southern District of New York, on behalf of the Office of Inspector General of the Department of Health and Human Services (OIG-HHS), to fully resolve a civil complaint filed against the Respondent for submitting false claims to the Medicare and Medicaid programs. The Respondent agreed to pay a settlement amount of just over $2 million, half of which constituted restitution.  Thereafter, the New York State Department of Health (“Department”) brought charges against the Respondent for professional misconduct pursuant to Educ. Law § 6530(9)(c). Ultimately, the Hearing Committee concluded that the evidence supported sustaining the charge against Respondent for having committed misconduct as defined in Educ. Law § 6530(9)(c). Although the underlying Stipulation and Order involved only a monetary consequence for the Respondent, at the Department’s recommendation, the BPMC found the following penalties to be appropriate in the misconduct matter: suspending the Respondent’s license for three years, to be stayed and run concurrently with the Respondent being placed on probation for three years, and a $5,000 fine.

Similarly in Weg v. De Buono, 269 A.D.2d 683, 703 N.Y.S.2d 301 (2000), the Department of Health (“DOH”) issued charges against a physician, alleging violations of Public Health Law § 18(2)(d) and (e). Prior to a hearing on those charges, the physician and the DOH signed a stipulation wherein the physician admitted to the violations, agreed to pay a civil penalty, and the DOH agreed to terminate the action “with prejudice.” Thereafter, the BPMC charged the physician with several specifications of professional misconduct, the first pursuant to Education Law § 6530(9)(c) for having been found guilty of violating a State statute (here, Public Health Law § 18(2)(d) and (e)). The physician appealed such charges, however the Hearing Committee held that the BPMC, despite the language of the stipulation, was not precluded from subsequently charging the physician with professional misconduct pursuant to Education Law § 6530. Of note, the Hearing Committee considered only whether the physician had stipulated to his guilt in violating a State statute, not whether he was in fact guilty of the such conduct. Ultimately, the BPMC’s charges of professional misconduct were sustained against the physician.