Physician discipline in the new age of telehealth

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No physician ever wants to face issues from a state board, and in the new age of telehealth and multistate licensing, the pitfalls and risks have become even more complicated. In the post-COVID-19 world, telemedicine has been instrumental in expanding access to health care, allowing patients to receive timely medical attention regardless of their location. However, physicians and medical professionals must be mindful as telemedicine introduces new legal complexities, especially in New York, where the state’s strict licensure and disciplinary standards complicate cross-state medical practice.

For a doctor to see a patient located in New York, they must hold a New York medical license, regardless of where the doctor is located. However, unlike states that are part of the Interstate Medical Licensure Compact, which streamlines licensing across member states, New York requires physicians to undergo its own rigorous, state-specific licensure process. This presents a challenge for out-of-state doctors, particularly those in telemedicine, to practice here.

Understanding the risk of rigorous enforcement

Margaret Surowka, Esq.
_{© Barclay Damon LLP}

Imad Rafi
_{© Barclay Damon LLP}

Physicians should exercise caution when seeking registration in New York and understand the lifelong risks of holding a New York license. Under New York Education Law, a physician’s New York medical license, whether it is active or inactive, can be impacted by disciplinary actions in other states. If another state revokes or suspends a physician’s license for actions that would qualify as professional misconduct under New York’s standards, New York has grounds to pursue similar disciplinary measures, which could include suspension or revocation of the physician’s New York license.

New York state is rigorous, some would say aggressive, in this practice. New York has a large number of physician residencies, and the state issues medical licenses for life. State discipline extends to all doctors of allopathic or osteopathic medicine, to all primary care and specialist physicians, who hold a license — even those who have moved away and no longer maintain any active practice or other professional ties in the state. New York state ranks seventh in the nation in its rate of serious discipline against physicians, and 56% of this discipline is the result of reciprocal discipline, i.e., actions against physicians licensed in New York, yet who are disciplined in another state. This approach creates a difficult situation for telehealth providers especially, who may have initially sought a New York license to provide limited virtual services in the height of COVID-19 but have since stopped practicing in the state. Again, despite their relocation or cessation of practice in New York, these physicians remain subject to New York’s strict disciplinary measures.

An example of this is evident in a recent case published on the New York Department of Health’s website, where New York State had received notice of discipline from the New Mexico Medical Board. The physician was disciplined by the New Mexico Medical Board but was permitted to retain his license with stipulations. However, when New York state attempted to notify him of reciprocal disciplinary action, they were unable to reach him, presumably because he did not have his license updated with his current residence. Without the opportunity to respond, the physician’s New York license was ultimately revoked in his absence.

Widespread professional repercussions

A license revocation or suspension does not simply affect a physician’s ability to practice in one state. It can lead to widespread professional repercussions, as disciplinary actions are often reported to national databases used by other state medical boards, health care organizations and malpractice insurers, affecting a practitioner’s licensure, employment prospects and insurance rates. This visibility can lead to further denials of licensure, credentialing difficulties and potential damage to a physician’s reputation, ultimately impacting their ability to practice not just in New York but nationwide.

Physicians who are targeted in a reciprocal disciplinary action are entitled to a hearing in New York. However, the hearing’s scope is limited. Typically, they cannot relitigate the original issues that led to disciplinary action in the first state and, instead, the hearing in New York will generally focus only on determining any penalties deemed appropriate under the state’s standards. A health care lawyer who has experience defending physicians can represent the doctor and introduce evidence that goes to the nature and severity of the original issue. New York’s limitation makes it difficult for physicians to fully defend against the action, as the primary misconduct itself isn’t reevaluated. Nonetheless, the penalties imposed by New York can be severe, with significant career implications for the physician involved.

Settlement could be an option to avoid a disciplinary hearing in New York, but often it brings its own set of challenges. Without effective legal counsel, physicians often fail to comprehend the full ramifications of their consent order. Instead of simply resolving the matter, these agreements frequently require physicians to reactivate their licenses and keep them active, regardless of whether they still practice in New York. This condition forces them to pay ongoing registration fees, effectively tying them to the state financially for the duration of their career. New York’s approach can seem more like a financial hold over physicians who have otherwise moved on. For many, it appears less like a final resolution and more like a sustained revenue source for the state, undermining the intended purpose of the discipline process.

Protecting license, practice and reputation

To navigate these complexities effectively, it is essential for physicians to secure counsel experienced in New York’s disciplinary processes and the specific regulations of any other involved state. Competent legal representation can provide critical guidance throughout the process, advising on how to best handle reciprocal disciplinary actions and protect against potential career-damaging consequences. Having an attorney who understands the nuances of state-specific licensing laws and has a thorough grasp of cross-state disciplinary repercussions is invaluable, especially when managing the complexities of telemedicine practice across state lines.

As New York continues to uphold its rigorous standards, physicians should carefully weigh the benefits and responsibilities of licensure in this state, seek knowledgeable counsel to guide them through potential legal challenges and stay informed about evolving telemedicine regulations. Ultimately, these steps can help ensure that medical professionals are prepared to protect both their practice and their reputation in an increasingly interconnected health care environment.

Margaret M. Surowka, Esq., is a partner and co-leader of Barclay Damon LLP’s Health Care and Health & Human Services Providers Teams. Her practice includes defending physicians and other providers in professional disciplinary proceedings. Imad Rafi is a law clerk with the firm’s Health Care Practice Group.