In 2006, the New York State Department of Education reinstated the license of a Long Island-based psychiatrist despite the strong opposition of a state health official. Now that psychiatrist, Marshall Hubsher, is facing criminal charges including the third-degree rape of a patient and conspiracy to sell prescription drugs.
“The applicant would unquestionably be an asset to the community, and to deprive it of his services further would be an injustice,” wrote an Education Department review board in 2005, regarding Hubsher’s application for reinstatement. His license had been revoked in 1995 after a series of criminal convictions.
Prior to Hubsher’s reinstatement, Dennis Graziano, the director of the Office of Professional Medical Conduct (OPMC), the body within the Department of Health responsible for investigating medical misconduct, made clear his office’s opinion on the matter.
Graziano said that the OPMC saw no reason to “change our previously stated position opposing restoration of [the applicant’s] revoked license to practice as a physician in the State of New York. The privilege to practice medicine should not be restored to a physician with such a history of fraud and deceit.”
The recent criminal charges against Hubsher, 65, were widely reported. See here and here. But the fact that his license was reinstated over the objection of the OPMC and several other aspects of his history have not been previously reported.
In New York State, licensing and reinstatement are handled by the Department of Education, while allegations of medical misconduct are processed by the Department of Health.
Dr. Marshall Hubsher
“The Education Department and the Board of Regents always consider the recommendations of the Office of Professional Medical Conduct in restoration cases,” said Jonathan Burman, a Department of Education spokesman. “It is critically important to note, however, that when making its recommendations, OPMC sees only the original application forms—they do not see any of the subsequently developed record, which includes the investigation, Peer Committee hearing, and COP [Committee of Professions] meeting, as well as documentation submitted throughout the process. So, by definition, OPMC makes its recommendation based only on a very small piece of the full record. The Regents take a very serious approach to restoring licenses. The premise of NY’s law (and remember, this is all driven by statute) is that licensees can rehabilitate themselves and that restoration is always possible.”
Both departments declined to discuss any specifics regarding the decision to reinstate Hubsher.
Hubsher’s criminal attorney, David Schwartz, said he is confident that his client will be cleared. “I assure you that we are going to vigorously defend against all allegations against my client,” Schwartz said. “We have great trust in the court system, and for the jury to analyze all the facts in this case. And at the end of the day, we believe he will be exonerated.”
Hubsher’s history includes a guilty plea to federal drug charges in 1982 after 2,000 Quaaludes were found in his office and a 1987 conviction for falsifying Medicaid claims for more than three years.
As a result, in 1988, the state suspended his license for 18 months and put him on probation for an additional 4½ years.
However, in a pattern that would be repeated, the state later found that Hubsher ignored the suspension and continued to treat patients, issuing prescriptions under the name of his brother, Merritt, also a licensed psychiatrist.
This prompted the state to revoke his license in 1995.
Summarizing the reason for the revocation, the OPMC review board wrote:
“Rather than abide by the suspension order, the Respondent knowingly and deliberately schemed to continue in practice during the suspension period. The Respondent knowingly and willfully misled his patients, pharmacies and insurance companies. The Review Board finds that there is no appropriate penalty other than revocation.”
Hubsher almost immediately applied to the Education Department for reinstatement. His initial application was denied in 2000, but he was undaunted and tried again.
During the second reinstatement application process, Hubsher told the state that he volunteered with the Red Cross and his synagogue, Chabad of Port Washington, providing “free counseling to many individuals, many of whom were reacting to the trauma of the destruction of the World Trade Center.”
This service, Hubsher said, had helped make him more compassionate and caring. And to remedy his ethical issues, he said he had taken courses in ethics. The report goes on:
“He considers himself to be a different person than he was 10 years ago. At that time, he was single and had no family; now he is married and has two children for whom he wants to be a good role model. To that end, he reported that he wants them to learn the importance of being honest and ethical, and that he has started school-based bullying and drug abuse counseling programs.”
Hubsher said that to make ends meet while his license was revoked he worked as a psychotherapist, a practice that didn’t require a medical or psychology license before 2004.
He said he was seeing about 10 patients per week, earning $15,000 a year and an additional $30,000 to $35,000 from investments.
When asked by the committee to discuss the causes of his earlier missteps, Hubsher replied that, growing up, he always felt himself to be a favored child, and that he had been first in his class in college and medical school. He said he felt he was “above everyone else,” and “above the rules and regulations of society.”
The suspension of his license in 1988 had been traumatic, he said, and his impending marriage and the death of his father had added to his stress.
“Those stresses, combined with his immaturity,” the report states, “led him to make bad decisions.”
The Education Department’s Board of Regents decided to reinstate his license.
And so 11 years after his license was revoked and despite his history and the warning from Graziano, Hubsher was again a licensed psychiatrist, free to see patients at his office in Roslyn, a two-story red-bricked medical office building where dozens of doctors and dentists keep offices.
Within months of reinstatement, he was contracted by the Uniondale Union Free School District in Long Island to provide initial psychiatric evaluation for children with developmental disabilities attending the Hagedorn Little Village School in Seaford, New York.
He was paid $375 per evaluation for six years before the district decided to “pursue someone more qualified” in 2011, according to a district spokesman.
District officials refused to discuss Hubsher any further, noting only that the contract “stipulates a student who may require an evaluation MUST be accompanied by a parent or guardian to Dr. Hubsher’s Roslyn, NY office.”
The World reviewed hundreds of pages of documents that detailed Hubsher’s troubled past.
Documents from the OPMC indicate that just three years after the Department of Education’s decision to reinstate Hubsher’s license, he was once again facing scrutiny for potential misconduct.
Then, on April 3, 2012, a 32-year-old woman, whose name the World is not disclosing, came to Hubsher’s office.
She said she went to his office for treatment and alleges that during that visit Hubsher raped her.
Later in April a grand jury in Nassau County indicted Hubsher for engaging in “oral sexual conduct or anal sexual conduct with a person who was incapable of consent.”
The woman has also filed a civil medical malpractice claim against Hubsher.
“You can only imagine what a patient like her would feel like,” said Steven Gaines, the woman’s attorney. “I would characterize it as betrayal.”
Hubsher’s attorney in the malpractice case, Saul Bienenfeld, said the woman went to Hubsher not for treatment but for a loan. Hubsher provided the court with the receipt of a signed check for $2,600, and a personal note signed by the woman.
The note states, “I am not now, nor will I be in the future, a patient of Dr. Hubsher. I owe Marshall Hubsher $2,600 and will pay this debt by Dec. 1, 2012.”
While the woman doesn’t deny borrowing $2,600 from Hubsher, she says that the language indicating that she wasn’t a patient was added after she signed the note.
She says that Hubsher began to treat her as a patient on March 29, 2012, and raped her in his office on April 3.
Hubsher denies ever accepting the woman as his patient, despite the fact that lawyers for Emblem Health, the woman’s insurance company, confirmed that an Emblem caseworker referred the woman to Hubsher.
Two months after Hubsher was arrested on the rape charge, an OPMC investigation found that, beginning as early as December 2008, he had threatened and intimidated another unidentified female patient, had falsified records concerning his treatment of two patients, and inappropriately prescribed medication to another.
The OPMC report determined that Hubsher asked a 24-year-old patient to give him “sexually explicit videos” of her. He also threatened to release “damaging” information about her and her family unless she agreed to deny OPMC access to her records. The woman was suffering from anxiety, depression and obsessive-compulsive disorder, among other ailments.
The investigation also found that Hubsher committed insurance fraud on multiple occasions.
Hubsher was placed on probation on June 28 and agreed to permanently surrender his license by July 31, 2012.
Then, just weeks after Hubsher agreed to surrender his New York license, he applied for a medical license in Maine.
According to documents released by the Maine Medical Board, Hubsher failed to disclose numerous aspects of his prior medical misconduct and criminal history, including the rape charge.
He apologized for omitting information about his recent license surrender, saying that he was “stressed by seeing all his disappointed patients and transitioning them to new care providers, he was depressed and anxious, his wife was suffering from a severe illness, and his father-in-law required assistance obtaining medical care for Alzheimer’s disease.”
For these reasons, he said, he did not read the directions on the application carefully.
The board denied his application on July 11, 2013.
But according to Kathleen Rice, the Nassau County district attorney at the time, the loss of his license did not stop Hubsher from practicing medicine in New York.
On Oct. 30, 2014, the Nassau DA’s office charged Hubsher with conspiracy in the fourth degree and practicing medicine without a license. Also charged was Dr. Howard Mahler, 62, who is accused of writing the prescriptions that Hubsher needed for his patients. Mahler was charged with five counts of the criminal sale of a prescription for a controlled substance.
According to the DA’s office, the OPMC notified the office when Hubsher lost his license in 2012. So when a report came in from an undisclosed source that he was still practicing, the office started an investigation.
Investigators found that Hubsher and Mahler conspired to sell prescriptions of Adderall and Xanax to patients in Hubsher’s office in Roslyn.
Agents of the federal Drug Enforcement Agency on Long Island arrested Hubsher at his office on Oct. 29.
Hubsher was released on a $40,000 bond for the drug charges, and a $50,000 cash bail for the rape charges.
Both criminal cases have been adjourned until Feburary 2.
CORRECTION: Hubsher was not charged with five count of the criminal sale of prescription for a controlled substance in October 2014 as written in an earlier version of this story. He was charged with conspiracy in the fourth degree and practicing medicine without a license.
