Regulation of Provider Practice: State Oversight, Licensing, Credentialing, Peer Review, and the National Practitioner Data Bank

Abstract

Although healthcare practitioners, as professionals, are often discussed in the context of professional self-regulation, in fact, healthcare practitioners are highly regulated by certifying bodies, federal and state statutes, licensure, and disciplinary oversight. Healthcare professionals, as a group, include not only physicians but also, for example, advanced practice providers, nurses, therapists, clinical nutritionists, pharmacists, and social workers. Healthcare professionals must graduate from an accredited program of education that is recognized by oversight bodies as providing a curriculum that is compliant with defined standards. Successful completion of an educational curriculum is often followed by a national certification examination, which, together with educational certification, attests to a de minimis basis upon which consideration for licensure and practice can be based. Professional licensure requirements are governed by state statutory authority; however, licensure requirements may also take into consideration other elements, such as citizenship, age, and moral character. The authority by which states are granted the authority to regulate professional licensing derives from the “police powers” granted to the states through the 10th Amendment of the US Constitution, and thus, state-specific standards for professional regulation constitutionally delegated the states. Furthermore, beyond state oversight, depending on the specific profession, medical practitioners may also need to satisfy the additional criteria or requirements set by the credentialing bodies or human resources departments of clinics or hospitals. It is important to understand that the regulation of medical professionals is not unique and that all professionals, for example, attorneys, accountants, architects, teachers, and engineers, must undergo a similar parallel process for certification and licensure in their respective areas of practice.

Appendix: Professional Misconduct as Defined By New York State

New York State defines professional misconduct in Education Law § 6530 and in the Rules of the Board of Regents § 29 (“unprofessional conduct”). Subsection references have been redacted for clarity.

New York State Education § 6530: Definitions of Professional Misconduct [53]

Each of the following is a professional misconduct :

• 1. Obtaining the license fraudulently;

• 2. Practicing the profession fraudulently or beyond its authorized scope;

• 3. Practicing the profession with negligence on more than one occasion;

• 4. Practicing the profession with gross negligence on a particular occasion;

• 5. Practicing the profession with incompetence on more than one occasion;

• 6. Practicing the profession with gross incompetence;

• 7. Practicing the profession while impaired by alcohol, drugs, physical disability, or mental disability;

• 8. Being a habitual abuser of alcohol, or being dependent on or a habitual user of narcotics, barbiturates, amphetamines, hallucinogens, or other drugs having similar effects, except for a licensee who is maintained on an approved therapeutic regimen which does not impair the ability to practice, or having a psychiatric condition which impairs the licensee’s ability to practice;

• 9. (a) Being convicted of committing an act constituting a crime under:

  • (i) New York state law or,

  • (ii) federal law or,

  • (iii) the law of another jurisdiction and which, if committed within this state, would have constituted a crime under New York state law;

• (b) Having been found guilty of improper professional practice or professional misconduct by a duly authorized professional disciplinary agency of another state where the conduct upon which the finding was based would, if committed in New York state, constitute professional misconduct under the laws of New York state;

• (c) Having been found guilty in an adjudicatory proceeding of violating a state or federal statute or regulation, pursuant to a final decision or determination, and when no appeal is pending, or after resolution of the proceeding by stipulation or agreement, and when the violation would constitute professional misconduct pursuant to this section;

• (d) Having his or her license to practice medicine revoked, suspended or having other disciplinary action taken, or having his or her application for a license refused, revoked or suspended or having voluntarily or otherwise surrendered his or her license after a disciplinary action was instituted by a duly authorized professional disciplinary agency of another state, where the conduct resulting in the

  revocation, suspension or other disciplinary action involving the license or refusal, revocation or suspension of an application for a license or the surrender of the license would, if committed in New York state, constitute professional misconduct under the laws of New York state;

• (e) …

• 10. Refusing to provide professional service to a person because of such person’s race, creed, color or national origin;

• 11. Permitting , aiding or abetting an unlicensed person to perform activities requiring a license;

• 12. Practicing the profession while the license is suspended or inactive as defined in subdivision … of the public health law, or willfully failing to register or notify the department of education of any change of name or mailing address, or, if a professional service corporation, willfully failing to comply with … of the business corporation law or, if a university faculty practice corporation willfully failing to comply with … business corporation law;

• …

• 16. A willful or grossly negligent failure to comply with substantial provisions of federal, state, or local laws, rules, or regulations governing the practice of medicine;

• 17. Exercising undue influence on the patient, including the promotion of the sale of services, goods, appliances, or drugs in such manner as to exploit the patient for the financial gain of the licensee or of a third party;

• 18. Directly or indirectly offering, giving, soliciting, or receiving or agreeing to receive, any fee or other consideration to or from a third party for the referral of a patient or in connection with the performance of professional services;

• 19. Permitting any person to share in the fees for professional services, other than: a partner, employee, associate in a professional firm or corporation, professional subcontractor or consultant authorized to practice medicine, or a legally authorized trainee practicing under the supervision of a licensee. This prohibition shall include any arrangement or agreement whereby the amount received in payment for furnishing space, facilities, equipment or personnel services used by a licensee constitutes a percentage of, or is otherwise dependent upon, the income or receipts of the licensee from such practice, except as otherwise provided by law with respect to a facility licensed pursuant to … public health law or … mental hygiene law;

• 20. Conduct in the practice of medicine which evidences moral unfitness to practice medicine;

• 21. Willfully making or filing a false report, or failing to file a report required by law or by the department of health or the education department, or willfully impeding or obstructing such filing, or inducing another person to do so;

• 22. Failing to make available to a patient, upon request, copies of documents in the possession or under the control of the licensee which have been prepared for and paid for by the patient or client;

• 23. Revealing of personally identifiable facts, data, or information obtained in a professional capacity without the prior consent of the patient, except as authorized or required by law;

• 24. Practicing or offering to practice beyond the scope permitted by law, or accepting and performing professional responsibilities which the licensee knows or has reason to know that he or she is not competent to perform, or performing without adequate supervision professional services which the licensee is authorized to perform only under the supervision of a licensed professional, except in an emergency situation where a person’s life or health is in danger;

• 25. Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified, by training, by experience, or by licensure, to perform them;

• 25-a. With respect to any non-emergency treatment, procedure or surgery which is expected to involve local or general anesthesia, failing to disclose to the patient the identities of all physicians, except medical residents in certified training programs, podiatrists and dentists, reasonably anticipated to be actively involved in such treatment, procedure or surgery and to obtain such patient’s informed consent to said practitioners’ participation;

• 26. Performing professional services which have not been duly authorized by the patient or his or her legal representative;

• 27. Advertising or soliciting for patronage that is not in the public interest.

  • (a) Advertising or soliciting not in the public interest shall include, but not be limited to, advertising or soliciting that:

•   (i) is false, fraudulent, deceptive, misleading, sensational, or flamboyant;

• (ii) represents intimidation or undue pressure;

• (iii) uses testimonials;

•   (iv) guarantees any service;

•    (v) makes any claim relating to professional services or products or the costs or price therefor which cannot be substantiated by the licensee, who shall have the burden of proof;

•  (vi) makes claims of professional superiority which cannot be substantiated by the licensee, who shall have the burden of proof; or

• (vii) offers bonuses or inducements in any form other than a discount or reduction in an established fee or price for a professional service or product.

  • (b) The following shall be deemed appropriate means of informing the public of the availability of professional services:

• (i) informational advertising not contrary to the foregoing prohibitions; and

• (ii) the advertising in a newspaper, periodical or professional directory or on radio or television of fixed prices, or a stated range of prices, for specified routine professional services, provided that if there is an additional charge for related services which are an integral part of the overall service being provided by the licensee, the advertisement shall so state, and provided further that the advertisement indicates the period of time for which the advertised prices shall be in effect.

  • (c) (i) All licensees placing advertisements shall maintain, or cause to be maintained, an exact copy of each advertisement, transcript, tape or video tape thereof as appropriate for the medium used, for a period of 1 year after its last appearance. This copy shall be made available for inspection upon demand of the department of health;

      (ii) A licensee shall not compensate or give anything of value to representatives of the press, radio, television or other communications media i anticipation of or in return for professional publicity in a news item;

  • (d) No demonstrations, dramatizations or other portrayals of professional practice shall be permitted in advertising on radio or television;

• 28. Failing to respond within 30 days to written communications from the department of health and to make available any relevant records with respect to an inquiry or complaint about the licensee’s professional misconduct. The period of 30 days shall commence on the date when such communication was delivered personally to the licensee. If the communication is sent from the department of health by registered or certified mail, with return receipt requested, to the address appearing in the last registration, the period of 30 days shall commence on the date of delivery to the licensee, as indicated by the return receipt;

• 29. Violating any term of probation or condition or limitation imposed on the licensee pursuant to … the public health law;

• 30. Abandoning or neglecting a patient under and in need of immediate professional care, without making reasonable arrangements for the continuation of such care, or abandoning a professional employment by a group practice, hospital, clinic or other health care facility, without reasonable notice and under circumstances which seriously impair the delivery of professional care to patients or clients;

• 31. Willfully harassing, abusing, or intimidating a patient either physically or verbally;

• 32. Failing to maintain a record for each patient which accurately reflects the evaluation and treatment of the patient, provided, however, that a physician who transfers an original mammogram to a medical institution, or to a physician or health care provider of the patient, or to the patient directly, as otherwise provided by law, shall have no obligation under this section to maintain the original or a copy thereof. Unless otherwise provided by law, all patient records must be retained for at least 6 years. Obstetrical records and records of minor patients must be retained for at least 6 years, and until 1 year after the minor patient reaches the age of 18 years;

• 33. Failing to exercise appropriate supervision over persons who are authorized to practice only under the supervision of the licensee;

• 34. Guaranteeing that satisfaction or a cure will result from the performance of professional services;

• 35. Ordering of excessive tests , treatment, or use of treatment facilities not warranted by the condition of the patient;

• 36. Claiming or using any secret or special method of treatment which the licensee refused to divulge to the department of health;

• 37. Failing to wear an identifying badge, which shall be conspicuously displayed and legible, indicating the practitioner’s name and professional title authorized pursuant to this chapter, while practicing as an employee or operator of a hospital, clinic, group practice or multiprofessional facility, or at a commercial establishment offering health services to the public;

• 38. Entering into an arrangement or agreement with a pharmacy for the compounding and/or dispensing of coded or specially marked prescriptions;

• 39. With respect to all professional practices conducted under an assumed name, other than facilities licensed pursuant to article … failing to post conspicuously at the site of such practice the name and licensure field of all of the principal professional licensees engaged in the practice at that site (i.e., principal partners, officers or principal shareholders);

• 40. Failing to provide access by qualified persons to patient information in accordance with the standards set forth …

• 41. Knowingly or willfully performing a complete or partial autopsy on a deceased person without lawful authority;

• 42. Failing to comply with a signed agreement to practice medicine in New York state in an area designated by the commissioner of education as having a shortage of physicians or refusing to repay medical education costs in lieu of such required service, or failing to comply with any provision of a written agreement with the state or any municipality within which the licensee has agreed to provide medical service, or refusing to repay funds in lieu of such service as consideration of awards made by the state or any municipality thereof for his or her professional education in medicine, or failing to comply with any agreement entered into to aid his or her medical education;

• 43. Failing to complete forms or reports required for the reimbursement of a patient by a third party. Reasonable fees may be charged for such forms or reports, but prior payment for the professional services to which such forms or reports relate may not be required as a condition for making such forms or reports available;

• 44. In the practice of psychiatry, (a) any physical contact of a sexual nature between licensee and patient except the use of films and/or other audiovisual aids with individuals or groups in the development of appropriate responses to overcome sexual dysfunction and (b) in therapy groups, activities which promote explicit physical sexual contact between group members during sessions; and

• 45. In the practice of ophthalmology, failing to provide a patient, upon request, with the patient’s prescription including the name, address, and signature of the prescriber and the date of the prescription.

• 46. A violation of … public health law.

• 47. Failure to use scientifically accepted barrier precautions and infection control practices as established by the department of health pursuant to … public health law.

• 48. A violation of section … .

Rules of the Board of Regents: Part 29 – Unprofessional Conduct [54]

§ 29.1 General provisions.

• a. Unprofessional conduct shall be the conduct prohibited by this section. The provisions of these rules applicable to a particular profession may define additional acts or omissions as unprofessional conduct and may establish exceptions to these general prohibitions.

• b. Unprofessional conduct in the practice of any profession licensed, certified or registered pursuant to title VIII of the Education Law, except for cases involving those professions licensed, certified or registered pursuant to the provisions of Article 131 or 131-B of such law in which a statement of charges of professional misconduct was not served on or before July 26, 1991, the effective date of Chapter 606 of the Laws of 1991, shall include:

  • 1. willful or grossly negligent failure to comply with substantial provisions of Federal, State or local laws, rules or regulations governing the practice of the profession;

  • 2. exercising undue influence on the patient or client, including the promotion of the sale of services, goods, appliances or drugs in such manner as to exploit the patient or client for the financial gain of the practitioner or of a third party;

  • 3. directly or indirectly offering, giving, soliciting, or receiving or agreeing to receive, any fee or other consideration to or from a third party for the referral of a patient or client or in connection with the performance of professional services;

  • 4. permitting any person to share in the fees for professional services, other than: a partner, employee, associate in a professional firm or corporation, professional subcontractor or consultant authorized to practice the same profession, or a legally authorized trainee practicing under the supervision of a licensed practitioner. This prohibition shall include any arrangement or agreement whereby the amount received in payment for furnishing space, facilities, equipment or personnel services used by a professional licensee constitutes a percentage of, or is otherwise dependent upon, the income or receipts of the licensee from such practice, except as otherwise provided by law with respect to a facility licensed pursuant to Article 28 of the Public Health Law or Article 13 of the Mental Hygiene Law;

  • 5. conduct in the practice of a profession which evidences moral unfitness to practice the profession;

  • 6. willfully making or filing a false report, or failing to file a report required by law or by the Education Department, or willfully impeding or obstructing such filing, or inducing another person to do so;

  • 7. failing to make available to a patient or client, upon request, copies of documents in the possession or under the control of the licensee which have been prepared for and paid for by the patient or client;

  • 8. revealing of personally identifiable facts, data or information obtained in a professional capacity without the prior consent of the patient or client, except as authorized or required by law;

  • 9. practicing or offering to practice beyond the scope permitted by law, or accepting and performing professional responsibilities which the licensee knows or has reason to know that he or she is not competent to perform, or performing without adequate supervision professional services which the licensee is authorized to perform only under the supervision of a licensed professional, except in an emergency situation where a person’s life or health is in danger;

  • 10. delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified, by training, by experience or by licensure, to perform them;

  • 11. performing professional services which have not been duly authorized by the patient or client or his or her legal representative;

  • 12. advertising or soliciting for patronage that is not in the public interest:

    • i. Advertising or soliciting not in the public interest shall include, but not be limited to, advertising or soliciting that:

      • a. is false, fraudulent, deceptive or misleading;

      • b. guarantees any service;

      • c. makes any claim relating to professional services or products or the cost or price therefore which cannot be substantiated by the licensee, who shall have the burden of proof;

      • d. makes claims of professional superiority which cannot be substantiated by the licensee, who shall have the burden of proof; or

      • e. offers bonuses or inducements in any form other than a discount or reduction in an established fee or price for a professional service or product.

    • ii. The following shall be deemed appropriate means of informing the public of the availability of professional services:

      • a. informational advertising not contrary to the foregoing prohibitions; and

      • b. the advertising in a newspaper, periodical or professional directory or on radio or television of fixed prices, or a stated range of prices, for specified routine professional services, provided that if there is an additional charge for related services which are an integral part of the overall service being provided by the licensee, the advertisement shall so state, and provided further that the advertisement indicates the period of time for which the advertised prices shall be in effect.

    • iii.

      • a. all licensees placing advertisements shall maintain, or cause to be maintained, an exact copy of each advertisement, transcript, tape or videotape thereof as appropriate for the medium used, for a period of 1 year after its last appearance. This copy shall be made available for inspection upon demand of the Education Department;

      • b. a licensee shall not compensate or give anything of value to representatives of the press, radio, television or other communications media in anticipation of or in return for professional publicity in a news item;

    • iv. Testimonials, demonstrations, dramatizations, or other portrayals of professional practice are permissible provided that they otherwise comply with the rules of professional conduct and further provided that the following conditions are satisfied:

      • a. the patient or client expressly authorizes the portrayal in writing;

      • b. appropriate disclosure is included to prevent any misleading information or imagery as to the identity of the patient or client;

      • c. reasonable disclaimers are included as to any statements made or results achieved in a particular matter;

      • d. the use of fictional situations or characters may be used if no testimonials are included; and

      • e. fictional client testimonials are not permitted;

• 13. failing to respond within 30 days to written communications from the Education Department or the Department of Health and to make available any relevant records with respect to an inquiry or complaint about the licensee’s unprofessional conduct. The period of 30 days shall commence on the date when such communication was delivered personally to the licensee. If the communication is sent from either department by registered or certified mail, with return receipt requested, to the address appearing in the last registration, the period of 30 days shall commence on the date of delivery to the licensee, as indicated by the return receipt;

• 14. violating any term of probation or condition or limitation imposed on the licensee by the Board of Regents pursuant to Education Law, Section 6511.

§ 29.2 General provisions for health professions.

• a. Unprofessional conduct shall also include, in the professions of: acupuncture athletic training audiology certified behavior analyst assistant certified dental assisting chiropractic creative arts therapy dental hygiene dentistry dietetics/nutrition licensed behavior analyst licensed pathologists’ assistants licensed perfusionist licensed practical nursing marriage and family therapy massage therapy medicine mental health counseling midwifery occupational therapy occupational therapy assistant ophthalmic dispensing optometry pharmacy physical therapist assistant physical therapy physician assistant podiatry psychoanalysis psychology registered professional nursing respiratory therapy respiratory therapy technician social work specialist assistant speech-language pathology (except for cases involving those professions licensed, certified or registered pursuant to the provisions of article 131 or 131-B of the Education Law in which a statement of charges of professional misconduct was not served on or before July 26, 1991, the effective date of chapter 606 of the Laws of 1991):

  • 1. abandoning or neglecting a patient or client under and in need of immediate professional care, without making reasonable arrangements for the continuation of such care, or abandoning a professional employment by a group practice, hospital, clinic or other health care facility, without reasonable notice and under circumstances which seriously impair the delivery of professional care to patients or clients;

  • 2. willfully harassing, abusing or intimidating a patient either physically or verbally;

  • 3. failing to maintain a record for each patient which accurately reflects the evaluation and treatment of the patient. Unless otherwise provided by law, all patient records must be retained for at least 6 years. Obstetrical records and records of minor patients must be retained for at least 6 years, and until 1 year after the minor patient reaches the age of 21 years;

  • 4. using the word “Doctor” in offering to perform professional services without also indicating the profession in which the licensee holds a doctorate;

  • 5. failing to exercise appropriate supervision over persons who are authorized to practice only under the supervision of the licensed professional;

  • 6. guaranteeing that satisfaction or a cure will result from the performance of professional services;

  • 7. ordering of excessive tests, treatment, or use of treatment facilities not warranted by the condition of the patient;

  • 8. claiming or using any secret or special method of treatment which the licensee refuses to divulge to the State Board for the profession;

  • 9. failing to wear an identifying badge, which shall be conspicuously displayed and legible, indicating the practitioner’s name and professional title authorized pursuant to the Education Law, while practicing as an employee or operator of a hospital, clinic, group practice or multiprofessional facility, registered pharmacy, or at a commercial establishment offering health services to the public;

  • 10. entering into an arrangement or agreement with a pharmacy for the compounding and/ or dispensing of coded or specially marked prescriptions;

  • 11. with respect to all professional practices conducted under an assumed name, other than facilities licensed pursuant to article 28 of the Public Health Law or article 13 of the Mental Hygiene Law, failing to post conspicuously at the site of such practice the names and the licensure field of all of the principal professional licensees engaged in practice at that site (i.e., principal partners, officers or principal shareholders);

  • 12. issuing prescriptions for drugs and devices which do not contain the following information: the date written, the prescriber’s name, address, telephone number, profession and registration number, the patient’s name, address and age, the name, strength and quantity of the prescribed drug or device, as well as the directions for use by the patient. In addition, all prescriptions for controlled substances shall meet the requirements of article 33 of the Public Health Law;

  • 13. failing to use scientifically accepted infection prevention techniques appropriate to each profession for the cleaning and sterilization or disinfection of instruments, devices, materials and work surfaces, utilization of protective garb, use of covers for contamination- prone equipment and the handling of sharp instruments. Such techniques shall include but not be limited to:

    • i. wearing of appropriate protective gloves at all times when touching blood, saliva, other body fluids or secretions, mucous membranes, nonintact skin, blood-soiled items or bodily fluid-soiled items, contaminated surfaces, and sterile body areas, and during instrument cleaning and decontamination procedures;

    • ii. discarding gloves used following treatment of a patient and changing to new gloves if torn or damaged during treatment of a patient; washing hands and donning new gloves prior to performing services for another patient; and washing hands and other skin surfaces immediately if contaminated with blood or other body fluids;

    • iii. wearing of appropriate masks, gowns or aprons, and protective eyewear or chin- length plastic face shields whenever splashing or spattering of blood or other body fluids is likely to occur;

    • iv. sterilizing equipment and devices that enter the patient’s vascular system or other normally sterile areas of the body;

    • v. sterilizing equipment and devices that touch intact mucous membranes but do not penetrate the patient’s body or using high-level disinfection for equipment and devices which cannot be sterilized prior to use for a patient;

    • vi. using appropriate agents, including but not limited to detergents for cleaning all equipment and devices prior a sterilization or disinfection;

    • vii. cleaning, by the use of appropriate agents, including but not limited to detergents, equipment and devices which do not touch the patient or that only touch the intact skin of the patient;

    • viii. maintaining equipment and devices used for sterilization according to the manufacturer’s instructions;

    • ix. adequately monitoring the performance of all personnel, licensed or unlicensed, for whom the licensee is responsible regarding infection control techniques;

    • x. placing disposable used syringes, needles, scalpel blades, and other sharp instruments in appropriate puncture-resistant containers for disposal; and placing reusable needles, scalpel blades, and other sharp instruments in appropriate puncture-resistant containers until appropriately cleaned and sterilized;

    • xi. maintaining appropriate ventilation devices to minimize the need for emergency mouth-to-mouth resuscitation;

    • xii. refraining from all direct patient care and handling of patient care equipment when the health care professional has exudative lesions or weeping dermatitis and the condition has not been medically evaluated and determined to be safe or capable of being safely protected against in providing direct patient care or in handling patient care equipment; and

    • xiii. placing all specimens of blood and body fluids in well-constructed containers with secure lids to prevent leaking; and cleaning any spill of blood or other body fluid with an appropriate detergent and appropriate chemical germicide; and

  • 14. failing to adhere to applicable practice guidelines, as determined by the commissioner, for the compounding of sterile drugs and products.