New York Office of Professional Discipline (OPD) Defense Attorney
Licensed professionals in New York who are accused of misconduct can be subjected to investigations and disciplinary proceedings initiated by the Office of Professional Discipline (OPD). Any findings of misconduct can lead to harsh penalties, even a loss of your professional license.
When your livelihood and reputation are on the line, you need a skilled New York OPD defense lawyer protecting your interests. Brill Legal Group has more than 20 years of experience representing clients facing disciplinary charges throughout the State of New York. We will fight for a successful outcome through every stage of the OPD investigation and disciplinary process.
What is the OPD?
The Office of Professional Discipline (OPD) is part of the New York State Education Department. The agency investigates and prosecutes allegations of professional misconduct across more than 50 professions in the state to protect the public.
Almost all licensees fall under the OPD’s jurisdiction, with a few exceptions一lawyers, physicians, physician assistants, and specialist assistants are disciplined by other state agencies.
The OPD is tasked with investigating any complaint about misconduct against a licensed professional, no matter who files it. Professional misconduct is the failure of a licensed professional to meet expected standards of practice. The Board of Regents, which oversees the State Education Department and its Office of the Professions, has the final say on disciplinary matters and can impose penalties such as fines, reprimands, or license revocation.
Licensed Professionals Under the OPD’s Jurisdiction
- Nurses: RNs and LPNs
- Certified nursing assistants (CNAs)
- Physical therapists
- Mental health professionals
Brill Legal Group also defends licensed professionals outside the healthcare sector, including:
- Certified shorthand reporters
- Interior designers
- Land surveyors
Licensed professionals in the healthcare field are among the most targeted for OPD misconduct investigations. Not only are they subject to strict industry-specific rules and regulations, but they also account for a large share of licensees in the state.
For example, New York issued 26,348 licenses for registered professional nurses in 2021, marking an increase from 23,611 licenses in 2020. The state issued a total of 1,336 licenses in dentistry in 2021. In comparison, there were 3,092 licenses issued for certified public accountants and 21 for interior designers in 2021.
Types of Professional Misconduct
Professional misconduct is a licensed professional’s failure to meet the expected standards of practice. The New York State Education Law identifies more than 40 types of violations as professional misconduct that can trigger disciplinary action. Here are some common types of misconduct that may lead to OPD investigations and disciplinary hearings:
- Negligence or incompetence
- Criminal convictions
- Practicing beyond the scope of the profession
- Documentation and record-keeping errors
- Breaching boundaries with patients
- Practicing under the influence of alcohol or drugs
- Diversion of narcotics or prescription medications
- Sexual misconduct
- Practicing the profession fraudulently
- Permitting or helping a person to practice without a license
- Being of unfit moral character
- Unauthorized release of personal information
- HIPAA violations
- Abandoning or neglecting a patient in need of immediate care
- Performing unauthorized services
Additional categories of misconduct apply to certain professionals regulated by the New York OPD. If a licensed professional is found guilty of misconduct, they will face disciplinary action by the Board of Regents.
What Initiates an OPD Investigation?
New York OPD disciplinary investigations originate from complaints. Anyone can make a complaint to the agency about accusations of professional misconduct. A single complaint is enough to trigger an investigation, as the OPD is required by law to look into every complaint that is filed.
Complaints are frequently filed by a licensed professional’s customer or client who believes violations have occurred. A professional’s coworkers are often sources of complaints to the OPD for suspected misconduct. Most often, however, complaints to OPD are filed by an employer at the time the licensed professional quits or is terminated.
In some cases, the OPD may receive referrals from other agencies. For example, the New York State Office of the Attorney General notifies the Office of the Professions when certain healthcare professionals are convicted of crimes. The New York State Department of Health can also report professionals to the OPD if regulators find that healthcare facilities have failed to meet requirements for the expected standard of care.
A Guide to the OPD Disciplinary Process
If you are the subject of a misconduct investigation, you will receive a letter signed by a New York OPD investigator or a phone call. As a licensed professional, you have a legal obligation to cooperate with the OPD’s investigation. You may be asked to provide documents or participate in an interview.
Ignoring the OPD letter or requests for documents may result in penalties or even separate charges of misconduct. However, you are not required to discuss anything with the investigator in an interview–something the investigator will not usually reveal.
The OPD investigator will gather information to determine whether there is sufficient evidence of misconduct. Once the probe ends, the investigator will refer the case to a prosecutor if a violation appears to have occurred. Conversely, the case will be closed if there is a lack of evidence of misconduct. Complaints that do not result in disciplinary action remain confidential.
The OPD investigator will submit a report to the Investigative Committee. A member of the applicable State Board for the profession and the prosecuting attorney will review the report and determine whether to proceed with formal disciplinary proceedings.
You then have the option of negotiating a consent order with the OPD, similar to a plea agreement in a criminal case. Many cases are settled through a consent order before the hearing stage.
If you choose not to settle, you may choose to participate in a settlement conference where you (or your lawyer) and the OPD prosecutor present their cases to a member of the Board of Regents, who will then determine what they believe is an appropriate settlement. You can decide whether to accept the proposed settlement or proceed with a formal disciplinary hearing, which is like a trial.
What Happens During an OPD Disciplinary Hearing?
Disciplinary hearings occur in a fashion that is similar to a trial but is less formal. A licensed professional can call witnesses and testify at the hearing. The licensed professional’s attorney can question and cross-examine witnesses, issue subpoenas and submit evidence on the professional’s behalf.
The case is tried before a hearing panel made up of at least three members. At least two of the members must belong to the relevant State Board for the profession.
The disciplinary hearing is overseen by an administrative officer appointed by the State Education Department. An attorney for the Department serves as the prosecutor. Once the disciplinary hearing concludes, the hearing panel will issue a report stating:
- Findings of fact
- Determination of guilt for each charge
- Recommended penalties if there is a determination of guilt.
Penalties for Professional Misconduct
Once formal disciplinary proceedings conclude, the Board of Regents may impose various penalties on professionals found guilty of misconduct. The professional has the right to appeal the hearing panel’s decision.
In less serious cases, the OPD may issue an administrative warning or another form of informal disciplinary action. For example, the professional may have committed minor forms of misconduct, such as isolated recordkeeping violations that do not directly harm public health.
On the other hand, egregious misconduct can result in license revocation that can leave the professional unable to practice. Penalties for serious misconduct include:
- Maximum fine of $10,000
- A censure or reprimand
- A probationary period
- Training requirements
- Up to 100 hours of public service
- License suspension or revocation
Licensed professionals who have been subjected to disciplinary action are in good standing unless their license has been suspended or revoked. However, any settlement or finding after a hearing will remain a public record forever.
With limited exceptions, professionals with surrendered or revoked licenses must wait at least three years to apply for license restoration. Although the Board of Regents can restore a professional license, it can be difficult to convince them to do so. Possessing a license is viewed as a privilege rather than a right.
What to Do if You are Investigated by the OPD
If you are facing an OPD investigation, you should waste no time in reaching out to an experienced New York OPD lawyer. Speaking with the investigator before consulting legal counsel can jeopardize your case. One wrong statement during an interview can lead to negative outcomes in your investigation.
Through years of experience, Brill Legal Group has developed effective strategies for dealing with OPD investigators. We will help you strike the delicate balance of following all the rules while protecting your rights. Your New York OPD defense lawyer will guide you through every stage of the disciplinary process, including preparing for interviews, answering statements of charges, negotiating settlements, and presenting your case to the prosecutor and, if necessary, before the hearing panel.
Not all OPD investigations proceed to formal disciplinary hearings. Brill Legal Group will try to show that the complaint against you has no merit and should be dismissed. We will also advise you on the benefits and drawbacks of settling your case through a consent agreement. If your case moves forward to a hearing, your New York OPD defense lawyer will craft a smart defense to protect your professional license and minimize potential penalties.
Contact Brill Legal Group
If you learn that you are the target of disciplinary charges, you may be concerned about your career, and rightly so. OPD actions should not be taken lightly. Contact Brill Legal Group immediately to understand how to approach your OPD investigation. Our experienced New York OPD lawyers are here to protect your livelihood and help you emerge from the disciplinary process unscathed. Call us today for a free consultation to learn more about your legal options.
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