When FAIM and coalition supporters passed the New York health freedom law in 1994 [L.1994,C.558], permitting “non-conventional” methods, we knew that eventually the Office of Professional Medical Conduct, OPMC, would test and try to overturn our law. That time is before us now — in spades.

The vehicle for challenge to our law by OPMC is the treacherously flawed system of professional discipline, which is sorely lacking the due process that the constitution affords those who are accused of crimes. Having had the opportunity to research and compare New York’s administrative process to that of 16 other states, I assure Townsend readers that while many states fail in some aspect of due process or another, New York is uniquely awful — which is strange since it is one of the few states which still embraces “peer review.” In most other states, the facts are tried before administrative law judges who make the determinations of guilt or innocence, which are then confirmed by the medical board. In New York, the administrative law judge is present but only to rule on process; the testimony is heard and the facts are determined by a panel of three, including two doctors. It is becoming apparent that peer review can enforce bias, that is, depending upon whose peers are sitting in review and depending as w ell, on what evidence is allowed into their view.

Further, it is our observation that the staff of the OPMC have gained much too much leeway in the prosecution of cases. They have driven the agenda away from the control of the BPMC, the Board for Professional Medical Conduct, which is supposed to be the governing body of physicians and laypersons who hear and try the cases.

Lastly, it is clear that the failures of due process and the hubris of OPMC staff are being used by insurers to wage a war on patients; to deprive them of the physicians who advocate for their care against the denial of benefits, and to stifle the science that would promote treatments insurers simply don’t want to pay for. While advocating for Lyme patients in New York, FAIM has become witness not only to the insurance lobby’s declarations of their support for OPMC actions against innovative Lyme doctors, but as well, OPMC staff have acceded to lawmakers that they rely on insurers’ ability to audit patient’s charts and generate complaints.

Legislation is being drafted at this time by a team of bill drafters from the three legislative committees who have jurisdiction over the law. FAIM’s concern begins, of course, with protecting patient access to CAM physicians. But all patients and all physicians who think progressively and who innovate in order to individualize care, are at risk.

These concepts are being developed into balanced legislation that will reform the physician discipline process to protect patient privacy and choice as well as patient safety from harm. A public legislative hearing on OPMC reform is scheduled by the Assembly Health Committee for January 31, 2002 in Manhattan.

The following are reforms of OPMC due process being promoted by FAIM:

1) Before an investigative interview, the OPMC should provide fort the licensee to review the Department expert’s investigative report.

Currently, the licensee does not know in advance of his or her interview just what the concerns are, and therefore cannot prepare to offer a resolution. Currently, the interview does give opportunity for further discovery by OPMC, but not serve at a11 as an opportunity for mediation.

2) Before the investigative interview, the licensee should be advised that their statements may be used against them in a subsequent disciplinary hearing.

3) When the subject of investigation involves in any way, the use of a non-conventional or individualized therapy, an expert who practices similarly should be consulted who can attest to the appropriateness or not of the care in question.

Despite assurances by the Department at the passage of L.1994,C.558, that specific assignment would be logical and was not necessary to place into law, OPMC has failed to avail itself of the expertise of any non-conventional physicians in current investigations of non-conventional practice. Consequently, OPMC faultily prosecutes scientific disputes.

4) The name, address, and qualifications (including past/present employers and affiliations and consultant-ships), of any expert relied upon or to be used at trial, as well as of BPMC committee members, shall be provided to the licensee under investigation, and any amendments to the expert or committee lists should be provided “promptly” to the licensee.

Currently, the only experts who will testify at trial are disclosed shortly before trial, with no accompanying disclosure for examination for conflict of interest.

5) Orders for a “comprehensive review” of patient records in a medical office should be made only upon a majority vote by an investigative committee of the BPMC after having heard a rebuttal by the licensee to the investigator’s report.