There is a newer version of the New York Consolidated Laws
2006 New York Code - State Board For Professional Medical Conduct; Proceedings.
§ 230. State board for professional medical conduct; proceedings. 1. A
state board for professional medical conduct is hereby created in the
department in matters of professional misconduct as defined in sections
sixty-five hundred thirty and sixty-five hundred thirty-one of the
education law. Its physician members shall be appointed by the
commissioner at least eighty-five percent of whom shall be from among
nominations submitted by the medical society of the state of New York,
the New York state osteopathic society, the New York academy of
medicine, county medical societies, statewide specialty societies
recognized by the council of medical specialty societies, and the
hospital association of New York state. Its lay members shall be
appointed by the commissioner with the approval of the governor. The
board of regents shall also appoint twenty percent of the members of the
board. Not less than sixty-seven percent of the members appointed by the
board of regents shall be physicians. Not less than eighty-five percent
of the physician members appointed by the board of regents shall be from
among nominations submitted by the medical society of the state of New
York, the New York state osteopathic society, the New York academy of
medicine, county medical societies, statewide medical societies
recognized by the council of medical specialty societies, and the
hospital association of New York state. Any failure to meet the
percentage thresholds stated in this subdivision shall not be grounds
for invalidating any action by or on authority of the board for
professional medical conduct or a committee or a member thereof. The
board for professional medical conduct shall consist of not fewer than
eighteen physicians licensed in the state for at least five years, two
of whom shall be doctors of osteopathy, not fewer than two of whom shall
be physicians who dedicate a significant portion of their practice to
the use of non-conventional medical treatments who may be nominated by
New York state medical associations dedicated to the advancement of such
treatments, at least one of whom shall have expertise in palliative
care, and not fewer than seven lay members. An executive secretary shall
be appointed by the chairperson and shall be a licensed physician. Such
executive secretary shall not be a member of the board, shall hold
office at the pleasure of, and shall have the powers and duties assigned
and the annual salary fixed by, the chairperson. The chairperson shall
also assign such secretaries or other persons to the board as are
necessary.
2. Members of such board shall be appointed by the commissioner or the
board of regents for three year terms except that the terms of those
first appointed shall be arranged so that as nearly as possible an equal
number shall terminate annually. A vacancy occurring during a term shall
be filled by an appointment by the commissioner or the board of regents
for the unexpired term.
3. Each member of the board shall receive a certificate of
appointment, shall before beginning his term of office file a
constitutional oath of office with the secretary of state, shall receive
up to one hundred fifty dollars as prescribed by the commissioner for
each day devoted to board work not to exceed ten thousand dollars in any
one year, and shall be reimbursed for his necessary expenses. Any member
may be removed from the board at the pleasure of the commissioner.
4. The governor shall annually designate from the members of the board
a chairperson who shall be a physician and vice-chairperson. The board
shall meet upon call of the chairperson, and may adopt bylaws consistent
with this section. A quorum for the transaction of business by the board
shall be a majority of members.
5. From among the members of the board two or more committees on
professional conduct shall be appointed by the board chairperson.
6. Any committee on professional conduct appointed pursuant to the
provisions of this section shall consist of two physicians and one lay
member.
7. The board, by its committees on professional conduct, shall conduct
disciplinary proceedings as prescribed in this section and shall assist
in other professional conduct matters as prescribed by the chairperson.
In this section the term "licensee" shall mean physician, including a
physician practicing under a limited permit, a medical resident,
physician's assistant and specialist's assistant. A committee on
professional conduct, on notice to the licensee and after affording the
licensee, the office of professional medical conduct, and their
attorneys an opportunity to be heard, shall have the authority to direct
a licensee to submit to a medical or psychiatric examination when the
committee has reason to believe the licensee may be impaired by alcohol,
drugs, physical disability or mental disability. The committee, with the
advice of the licensee and the office of professional medical conduct,
shall designate the physician who will conduct the examination. The
results of the examination shall be provided by the examining physician
to the committee, the licensee, and the office of professional medical
conduct. The licensee may also obtain a physician to conduct an
examination the results of which shall be provided to the committee and
the office of professional medical conduct.
8. Notwithstanding any other provision of law, no member of a
committee on professional conduct nor an employee of the board shall be
liable in damages to any person for any action taken or recommendation
made by him within the scope of his function as a member of such
committee or employee provided that (a) such member or employee has
taken action or made recommendations within the scope of his function
and without malice, and (b) in the reasonable belief after reasonable
investigation that the act or recommendation was warranted, based upon
the facts disclosed.
9. Notwithstanding any other provisions of law, neither the
proceedings nor the records of any such committee shall be subject to
disclosure under article thirty-one of the civil practice law and rules
except as hereinafter provided. No person in attendance at a meeting of
any such committee shall be required to testify as to what transpired
thereat. The prohibition relating to discovery of testimony shall not
apply to the statements made by any person in attendance at such a
meeting who is a party to an action or proceeding the subject matter of
which was reviewed at such meeting.
9-a. At any time, if the board for professional medical conduct or the
office of professional medical conduct determines that there is a
reasonable belief that a criminal offense has been committed by the
licensee, the board for professional medical conduct or office of
professional medical conduct shall notify the appropriate district
attorney.
10. Professional misconduct proceedings shall consist of:
* (a) Investigation. (i) The board for professional medical conduct,
by the director of the office of professional medical conduct, may
investigate on its own any suspected professional misconduct, and shall
investigate each complaint received regardless of the source. The
director of the office of professional medical conduct shall cause a
preliminary review of every report made to the department pursuant to
section twenty-eight hundred three-e as added by chapter eight hundred
sixty-six of the laws of nineteen hundred eighty, sections twenty-eight
hundred five-l and forty-four hundred five-b of this chapter, and
section three hundred fifteen of the insurance law, to determine if such
report reasonably appears to reflect physician conduct warranting
further investigation pursuant to this subparagraph.
(ii) If the investigation of cases referred to an investigation
committee involves issues of clinical practice, medical experts, shall
be consulted. Experts may be made available by the state medical society
of the state of New York, by county medical societies and specialty
societies, and by New York state medical associations dedicated to the
advancement of non-conventional medical treatments. Any information
obtained by medical experts in consultations, including the names of
licensees or patients, shall be confidential and shall not be disclosed
except as otherwise authorized or required by law.
(iii) In the investigation of cases referred to an investigation
committee, the licensee being investigated shall have an opportunity to
be interviewed by the office of professional medical conduct in order to
provide an explanation of the issues under investigation. The licensee
may have counsel present. Providing an opportunity for such an interview
shall be a condition precedent to the convening of an investigation
committee on professional misconduct of the board for professional
medical conduct. Within ninety days of any interview of the licensee, an
investigation committee on professional conduct of the board of
professional medical conduct shall be convened. The licensee shall be
given written notice of issues identified subsequent to the interview.
The licensee may submit written comments or expert opinion to the office
of professional medical conduct at any time.
(iv) If the director of the office of professional medical conduct,
after obtaining the concurrence of a majority of an investigation
committee, and after consultation with the executive secretary,
determines that a hearing is warranted the director shall, within
fifteen days thereafter, direct counsel to prepare the charges. If the
director determines after consultation with an investigation committee
that: (A) evidence exists of a single incident of negligence or
incompetence, a pattern of inappropriate prescribing or medical
practice, or impairment by drugs, alcohol, physical or mental
disability; (B) a recommendation was made by a county medical society or
the medical society of the state of New York that warrants further
review; or (C) the facts underlying a verdict in a medical malpractice
action warrant further review, the director, in addition to the
authority set forth in this section, shall be authorized to conduct a
comprehensive review of patient records of the licensee and such office
records of the licensee as are related to said determination. The
licensee shall cooperate with the investigation and willful failure to
cooperate in a substantial or material respect may result in an
enforcement proceeding pursuant to subparagraph (ii) of paragraph (o) of
this subdivision. If there is a question of alcoholism, alcohol abuse,
drug abuse or mental illness, the director may refer the matter to a
committee, as referred to in subparagraph (ii) of paragraph (c) of
subdivision eleven of this section.
(v) The files of the office of professional medical conduct relating
to the investigation of possible instances of professional misconduct
shall be confidential and not subject to disclosure at the request of
any person, except as provided by law in a pending disciplinary action
or proceeding. The provisions of this paragraph shall not prevent the
office from sharing information concerning investigations within the
department and, pursuant to subpoena, with other duly authorized public
agencies responsible for professional regulation or criminal
prosecution. Nothing in this subparagraph shall affect the duties of
notification set forth in subdivision nine-a of this section.
(vi) The office of professional medical conduct, acting under this
section, may have access to the criminal history record of any licensee
governed by the provisions of this section maintained by the division of
criminal justice services pursuant to subdivision six of section eight
hundred thirty-seven of the executive law.
* NB Expires March 31, 2008
(b) Charges. The charges shall state the substance of the alleged
professional misconduct and shall state clearly and concisely the
material facts but not the evidence by which the charges are to be
proved.
(c) Notice of hearing. The board shall set the time and place of the
hearing. The notice of hearing shall state (1) the date, time and place
of the hearing, (2) that the licensee shall file a written answer to
each of the charges and allegations in the statement of charges no later
than ten days prior to the hearing, that any charge and allegation not
so answered shall be deemed admitted and that the licensee may wish to
seek the advice of counsel prior to filing such answer, (3) that the
licensee shall appear personally at the hearing and may be represented
by counsel, (4) that the licensee shall have the right to produce
witnesses and evidence in his behalf, to cross-examine witnesses and
examine evidence produced against him, and to have subpoenas issued in
his behalf to require the production of witnesses and evidence in manner
and form as prescribed by the civil practice law and rules or either
party may issue such subpoenas in their own behalf, (5) that a
stenographic record of the hearing will be made, and (6) such other
information as may be considered appropriate by the committee.
(d) Service of charges and of notice of hearing. A copy of the charges
and the notice of the hearing shall be served on the licensee personally
by the board at least twenty days before the hearing. If personal
service cannot be made after due diligence and such fact is certified
under oath, a copy of the charges and the notice of hearing shall be
served by registered or certified mail to the licensee's last known
address by the board at least fifteen days before the hearing.
(e) Committee hearing. The hearing shall be conducted by a committee
on professional conduct. The members of the hearing committee shall be
appointed by the chairperson of the board who shall designate the
committee chairperson. In addition to said committee members, the
commissioner shall designate an administrative officer, admitted to
practice as an attorney in the state of New York, who shall have the
authority to rule on all motions, including motions to compel disclosure
of information or material claimed to be protected because of privilege
or confidentiality, procedures and other legal objections and shall
draft the conclusions of the hearing committee pursuant to paragraph
(g). The administrative officer shall have the authority to rule on
objections to questions posed by either party or the committee members.
The administrative officer shall not be entitled to vote.
(f) Conduct of hearing. All hearings must be commenced within sixty
days of the service of charges except that an adjournment of the initial
hearing date may be granted by the hearing committee upon request by
either party upon good cause shown. No adjournment shall exceed thirty
days. The evidence in support of the charges shall be presented by an
attorney. The licensee shall have the rights required to be stated in
the notice of hearing (subparagraph (c) of this subdivision) and in
section four hundred one of the state administrative procedure act. The
committee shall not be bound by the rules of evidence, but its
conclusion shall be based on a preponderance of the evidence. A hearing
which has been initiated shall not be discontinued because of the death
or incapacity to serve of one member of the hearing committee. In the
event of a member's death or incapacity to serve on the committee, a
member shall be appointed immediately by the chairperson of the board.
The member shall affirm in writing that he or she has read and
considered evidence and transcripts of the prior proceedings. The last
hearing day must be held within one hundred twenty days of the first
hearing day. Either party, for good cause shown, may request that the
committee extend the last hearing day beyond one hundred twenty days. An
extension requested by the licensee and granted by the committee may not
be used as the grounds for a proceeding brought under paragraph (j) of
this subdivision.
(g) Results of hearing. The committee shall make (1) findings of fact,
(2) conclusions concerning the charges sustained or dismissed, and (3) a
determination regarding charges sustained or dismissed, and in the
event any of the charges have been sustained, of the penalty to be
imposed or appropriate action to be taken and the reasons for the
determination. For the committee to make a conclusion sustaining a
charge, or determining a penalty or the appropriate action to be taken,
two members of the committee must vote for such a conclusion or
determination. The committee shall issue an order based on its
determination. The committee's findings, conclusions, determinations and
order shall become public upon issuance in any case in which annulment,
suspension without stay or revocation of the licensee's license is
ordered.
(h) Disposition of results. The findings, conclusions, determination
and the reasons for the determination of the committee shall be served
upon the licensee, the department, and any hospitals, primary practice
settings or health care plans required to be identified in publicly
disseminated physician data pursuant to paragraph (j), (n), or (q) of
subdivision one of section twenty-nine hundred ninety-five-a of this
chapter, within sixty days of the last day of hearing. Service shall be
either by certified mail upon the licensee at the licensee's last known
address and such service shall be effective upon receipt or seven days
after mailing by certified mail whichever is earlier or by personal
service and such service shall be effective upon receipt. The licensee
shall deliver to the board the license which has been revoked, annulled,
suspended or surrendered, together with the registration certificate,
within five days after receipt of the order. If the license or
registration certificate is lost, misplaced or its whereabouts is
otherwise unknown, the licensee shall submit an affidavit to that effect
and shall deliver such license or certificate to the board when located.
The director of the office shall promptly transmit a copy of the order
to the division of professional licensing services of the state
education department and to each hospital at which the licensee has
privileges.
(i) The determinations of a committee on professional conduct of the
state board for professional medical conduct may be reviewed by the
administrative review board for professional medical conduct.
(j) Time limitations. Failure to comply with a provision of this
subdivision requiring that a specified action shall be taken within a
specified period of time shall be grounds for a proceeding pursuant to
article seventy-eight of the civil practice law and rules for an order
staying the hearing or dismissing the charges or any part thereof or any
other appropriate relief. Such proceeding shall be returnable before the
supreme court of Albany county or New York county. The respondent in
such proceeding shall have the initial burden to explain the reasons for
the failure to comply with a provision of this subdivision requiring
that a specified action to be taken within a specified period of time.
The court shall not stay the hearing or dismiss the charges or grant any
other relief unless it determines that failure to comply was not caused
by the article seventy-eight petitioner and has caused substantial
prejudice to the article seventy-eight petitioner.
(k) The executive secretary of the board with the specific approval of
a committee on professional conduct of the board shall have the power to
issue subpoenas requiring persons to appear before the board and be
examined with reference to a matter within the scope of the inquiry or
the investigation being conducted by the board and produce books,
papers, records or documents pertaining thereto.
(l) The board or its representatives may examine and obtain records of
patients in any investigation or proceeding by the board acting within
the scope of its authorization. Unless expressly waived by the patient,
any information so obtained shall be confidential and shall not be
disclosed except to the extent necessary for the proper function of the
board and the name of the patient may not be disclosed by the board or
its employees at any stage of the proceedings unless the patient has
expressly consented. Any other use or dissemination by any person by any
means, unless pursuant to a valid court order or otherwise provided by
law, is prohibited.
(m) Expedited procedures. (i) Violations. Violations involving
professional misconduct of a minor or technical nature may be resolved
by expedited procedures as provided in subparagraph (ii) or (iii) of
this paragraph. For purposes of this paragraph violations of a minor or
technical nature shall include, but shall not be limited to, isolated
instances of violations concerning professional advertising or record
keeping, and other isolated violations which do not directly affect or
impair the public health, welfare or safety.
(ii) Administrative warning and consultation. If the director of the
office of professional medical conduct, after obtaining the concurrence
of a majority of a committee on professional conduct, and after
consultation with the executive secretary, determines that there is
substantial evidence of professional misconduct of a minor or technical
nature or of substandard medical practice which does not constitute
professional misconduct, the director may issue an administrative
warning and/or provide for consultation with a panel of one or more
experts, chosen by the director. Panels of one or more experts may
include, but shall not be limited to, a peer review committee of a
county medical society or a specialty board. Administrative warnings and
consultations shall be confidential and shall not constitute an
adjudication of guilt or be used as evidence that the licensee is guilty
of the alleged misconduct. However, in the event of a further allegation
of similar misconduct by the same licensee, the matter may be reopened
and further proceedings instituted as provided in this section.
(iii) Violation committee proceeding. If the director determines,
after obtaining the concurrence of a majority of a committee on
professional conduct, and after consultation with the executive
secretary, that there is substantial evidence of a violation and that
the violation is of a nature justifying a penalty as specified in this
subparagraph the department may prepare and serve charges, either by
personal service or by certified mail, return receipt requested. A
violation committee proceeding shall be commenced within three years of
the alleged professional misconduct. Such charges shall include a
statement that the matter shall be referred to a committee on
professional conduct, which shall act as a violations committee for
determination. The violations committee shall be appointed by the
chairperson of the state board. Paragraph (c) of subdivision ten of
this section shall apply to the proceeding. A stenographic record of the
hearing shall be made. The evidence in support of the charges shall be
presented by an attorney and the licensee shall be afforded an
opportunity to be heard and to present evidence in his behalf. Such
violations committee may issue a censure and reprimand, may require the
licensee to perform up to twenty-five hours of public service in a
facility licensed pursuant to article twenty-eight of this chapter in a
manner and at a time and place directed by the board, and in addition,
or in the alternative, may impose a fine not to exceed five hundred
dollars for each specification of minor or technical misconduct. The
violations committee may alternatively dismiss the charges in the
interest of justice. The order shall be served either by certified mail
to the licensee's last known address and such services shall be
effective upon receipt or seven days after mailing by certified mail
whichever is earlier or by personal service and such service shall be
effective upon receipt. The order may be reviewed by the administrative
appeals board for professional medical conduct.
(n) Engagement. A proceeding under this section shall be treated in
the same manner as an action or proceeding in supreme court for the
purpose of any claim by counsel of actual engagement.
(o) Orders for review of medical records. Where the director has
issued an order for a comprehensive medical review of patient records
and office records pursuant to subparagraph four of paragraph (a) of
this subdivision and the licensee has refused to comply with the
director's order, the director may apply to a justice of the supreme
court, in writing, on notice to the licensee, for a court order to
compel compliance with the director's order. The court shall not grant
the application unless it finds that (i) there was a reasonable basis
for issuance of the director's order and (ii) there is reasonable cause
to believe that the records sought are relevant to the director's order.
The court may deny the application or grant the application in whole or
in part.
(p) Convictions of crimes or administrative violations. In cases of
professional misconduct based solely upon a violation of subdivision
nine of section sixty-five hundred thirty of the education law, the
director may direct that charges be prepared and served and may refer
the matter to a committee on professional conduct for its review and
report of findings, conclusions as to guilt, and determination. In such
cases, the notice of hearing shall state that the licensee shall file a
written answer to each of the charges and allegations in the statement
of charges no later than ten days prior to the hearing, and that any
charge or allegation not so answered shall be deemed admitted, that the
licensee may wish to seek the advice of counsel prior to filing such
answer that the licensee may file a brief and affidavits with the
committee on professional conduct, that the licensee may appear
personally before the committee on professional conduct, may be
represented by counsel and may present evidence or sworn testimony in
his or her behalf, and the notice may contain such other information as
may be considered appropriate by the director. The department may also
present evidence or sworn testimony and file a brief at the hearing. A
stenographic record of the hearing shall be made. Such evidence or sworn
testimony offered to the committee on professional conduct shall be
strictly limited to evidence and testimony relating to the nature and
severity of the penalty to be imposed upon the licensee. Where the
charges are based on the conviction of state law crimes in other
jurisdictions, evidence may be offered to the committee which would show
that the conviction would not be a crime in New York state. The
committee on professional conduct may reasonably limit the number of
witnesses whose testimony will be received and the length of time any
witness will be permitted to testify. The determination of the committee
shall be served upon the licensee and the department in accordance with
the provisions of paragraph (h) of this subdivision. A determination
pursuant to this subdivision may be reviewed by the administrative
review board for professional medical conduct.
11. Reporting of professional misconduct:
(a) The medical society of the state of New York, the New York state
osteopathic society or any district osteopathic society, any statewide
medical specialty society or organization, and every county medical
society, every person licensed pursuant to articles one hundred
thirty-one, one hundred thirty-one-B, one hundred thirty-three, one
hundred thirty-seven and one hundred thirty-nine of the education law,
and the chief executive officer, the chief of the medical staff and the
chairperson of each department of every institution which is established
pursuant to article twenty-eight of this chapter and a comprehensive
health services plan pursuant to article forty-four of this chapter or
article forty-three of the insurance law, shall, and any other person
may, report to the board any information which such person, medical
society, organization institution or plan has which reasonably appears
to show that a licensee is guilty of professional misconduct as defined
in sections sixty-five hundred thirty and sixty-five hundred thirty-one
of the education law. Such reports shall remain confidential and shall
not be admitted into evidence in any administrative or judicial
proceeding except that the board, its staff, or the members of its
committees may begin investigations on the basis of such reports and may
use them to develop further information.
(b) Any person, organization, institution, insurance company,
osteopathic or medical society who reports or provides information to
the board in good faith, and without malice shall not be subject to an
action for civil damages or other relief as the result of such report.
(c) Notwithstanding the foregoing, no physician shall be responsible
for reporting pursuant to paragraph (a) of this subdivision with respect
to any information discovered by such physician solely as a result of:
(i) Participation in a properly conducted mortality and/or morbidity
conference, departmental meeting or a medical or tissue committee
constituted pursuant to the by-laws of a hospital which is duly
established pursuant to article twenty-eight of the public health law,
unless the procedures of such conference, department or committee of
such hospital shall have been declared to be unacceptable for the
purpose hereof by the commissioner, and provided that the obligations of
reporting such information when appropriate to do so shall be the
responsibility of the chairperson of such conference, department or
committee, or
* (ii) Participation and membership during a three year demonstration
period in a physician committee of the Medical Society of the State of
New York or the New York State Osteopathic Society whose purpose is to
confront and refer to treatment physicians who are thought to be
suffering from alcoholism, drug abuse or mental illness. Such
demonstration period shall commence on April first, nineteen hundred
eighty and terminate on May thirty-first, nineteen hundred eighty-three.
An additional demonstration period shall commence on June first,
nineteen hundred eighty-three and terminate on March thirty-first,
nineteen hundred eighty-six. An additional demonstration period shall
commence on April first, nineteen hundred eighty-six and terminate on
March thirty-first, nineteen hundred eighty-nine. An additional
demonstration period shall commence April first, nineteen hundred
eighty-nine and terminate March thirty-first, nineteen hundred
ninety-two. An additional demonstration period shall commence April
first, nineteen hundred ninety-two and terminate March thirty-first,
nineteen hundred ninety-five. An additional demonstration period shall
commence on April first, nineteen hundred ninety-five and terminate on
March thirty-first, nineteen hundred ninety-eight. An additional
demonstration period shall commence on April first, nineteen hundred
ninety-eight and terminate on March thirty-first, two thousand three. An
additional demonstration period shall commence on April first, two
thousand three and terminate on March thirty-first, two thousand eight;
provided, however, that the commissioner may prescribe requirements for
the continuation of such demonstration program, including periodic
reviews of such programs and submission of any reports and data
necessary to permit such reviews. During these additional periods, the
provisions of this subparagraph shall also apply to a physician
committee of a county medical society.
* NB Expires March 31, 2008
(d) In the event that a physician or administrator of a hospital
established pursuant to article twenty-eight of this chapter shall
reasonably be unable to determine if any information which he or she has
is such that it does reasonably appear to show that a licensee is guilty
of professional misconduct and therefore creates an obligation on such
physician or such administrator to make a report pursuant to paragraph
(a) hereof, he or she may either:
(i) in accordance with procedures established by the board, and
without revealing the name of the licensee who he or she is considering
making such a report about, request in writing the advice of the board
as to whether or not a report should be made, and the physician or
administrator so requesting such advice shall then be required to comply
with the advice of the board. No such request for advice shall relieve
the requesting physician or administrator of any obligation hereunder
unless all other material facts are revealed, other than the name of the
licensee in question, or
(ii) in the case where the licensee about whom another physician is
considering making such report is affiliated with a hospital which is
duly established pursuant to article twenty-eight of this chapter, a
physician may elect to fulfill the obligations of paragraph (a) hereof
by reporting such information to the appropriate executive committee or
professional practices peer review committee which is duly constituted
pursuant to by-laws of such hospital, unless the peer review procedures
of such hospital shall have been declared to be unacceptable for the
purposes hereof by the commissioner. The physician members of such
hospital executive committee or professional practices peer review
committee shall thereupon have the responsibility of reporting such
information to the board pursuant to paragraph (a) hereof, as required
thereby, but in the event that such committee determines that a report
shall be made to the board, the chairperson of such committee may
fulfill the obligation of reporting on behalf of all the members of the
committee, or
(iii) in a case where the physician, about whom he or she is
considering making such report, is a member of a county medical society
or district osteopathic society, and is not affiliated with a hospital,
but practices his or her profession within such county or district, a
physician may elect to fulfill the obligations of paragraph (a) hereof
by reporting such information to the appropriate county medical
society's or district osteopathic society's professional practices
review committee duly constituted pursuant to the by-laws of such county
medical society or district osteopathic society, unless the review
procedures of such county medical society or district osteopathic
society shall have been declared to be unacceptable for the purposes
hereof by the commissioner. The physician members of such review
committee shall thereupon have the responsibility of reporting such
information to the board pursuant to paragraph (a) hereof, as required
thereby, but in the event that such committee determines that a report
shall be made to the board, the chairperson of such committee may
fulfill the obligation of reporting on behalf of all the members of the
committee.
(e) Nothing contained in this subdivision shall be so construed as to
require any physician to violate a physician/patient privilege and
therefore, no physician shall be required to report any information to
the board which such physician has learned solely as a result of
rendering treatment to another physician.
(f) A violation of this subdivision shall not be subject to the
provisions of sections twelve and twelve-b of this chapter.
* (g) Any physician committee of the Medical Society of the State of
New York, the New York State Osteopathic Society or a county medical
society referred to in subparagraph (ii) of paragraph (c) of this
subdivision shall develop procedures in consultation with, and approved
by, the commissioner of the department of health, including but not
limited to the following:
(i) The committee shall disclose at least once a month such
information as the director of the office of professional medical
conduct may deem appropriate regarding reports received, contacts or
investigations made and the disposition of each report, provided however
that the committee shall not disclose any personally identifiable
information except as provided in subparagraph (ii) or subparagraph
(iii) of this paragraph.
(ii) The committee shall immediately report to the director the name,
all information obtained and the results of any contact or investigation
regarding any physician who is believed to be an imminent danger to the
public.
(iii) The committee shall report to the director in a timely fashion
all information obtained regarding any physician who refuses to
cooperate with the committee, refuses to submit to treatment, or whose
impairment is not substantially alleviated through treatment.
(iv) The committee shall inform each physician who is participating in
a program of the procedures followed in the program, of the rights and
responsibilities of the physician in the program and of the possible
results of noncompliance with the program.
** (v) No member of any such committee shall be liable for damages to
any person for any action taken by such member provided that such action
was taken without malice and within the scope of such member's function
as a member of such committee.
** (vi) The committee, in conjunction with the director of the office
of professional medical conduct, shall develop appropriate consent forms
and disclosure proceedings as may be necessary under any federal
statute, rule or regulation in order to permit the disclosure of the
information as may be required under subparagraphs (ii) and (iii) of
this paragraph.
Except as herein provided and notwithstanding any other provision of
law, neither the proceedings nor the records of any such physician
committee shall be subject to disclosure under article thirty-one of the
civil practice law and rules nor shall any member of any such committee
nor any person in attendance at any such meeting be required to testify
as to what transpired thereat.
** NB Repealed March 31, 2008
* NB Expires March 31, 2008
12. Summary action. (a) Whenever the commissioner, after an
investigation and a recommendation by a committee on professional
conduct of the state board for professional medical conduct, based upon
a determination that a licensee is causing, engaging in or maintaining a
condition or activity which in the commissioner's opinion constitutes an
imminent danger to the health of the people, and that it therefore
appears to be prejudicial to the interests of the people to delay action
until an opportunity for a hearing can be provided in accordance with
the prehearing and hearing provisions of this section, the commissioner
may order the licensee, by written notice, to discontinue such dangerous
condition or activity or take certain action immediately and for a
period of ninety days from the date of service of the order. Within ten
days from the date of service of the said order, the state board for
professional medical conduct shall commence and regularly schedule such
hearing proceedings as required by this section, provided, however, that
the hearing shall be completed within ninety days of the date of service
of the order. To the extent that the issue of imminent danger can be
proven without the attorney representing the office of professional
medical conduct putting in its entire case, the committee of the board
shall first determine whether by a preponderance of the evidence the
licensee is causing, engaging in or maintaining a condition or activity
which constitutes an imminent danger to the health of the people. The
attorney representing the office of professional medical conduct shall
have the burden of going forward and proving by a preponderance of the
evidence that the licensee's condition, activity or practice constitutes
an imminent danger to the health of the people. The licensee shall have
an opportunity to be heard and to present proof. When both the office
and the licensee have completed their cases with respect to the question
of imminent danger, the committee shall promptly make a recommendation
to the commissioner on the issue of imminent danger and determine
whether the summary order should be left in effect, modified or vacated,
and continue the hearing on all the remaining charges, if any, in
accordance with paragraph (f) of subdivision ten of this section. Within
ten days of the committee's recommendation, the commissioner shall
determine whether or not to adopt the committee's recommendations, in
whole or in part, and shall leave in effect, modify or vacate his
summary order. The state board for professional medical conduct shall
make every reasonable effort to avoid any delay in completing and
determining such proceedings. If, at the conclusion of the hearing, (i)
the hearing committee of the board finds the licensee guilty of one or
more of the charges which are the basis for the summary order, (ii) the
hearing committee determines that the summary order continue, and (iii)
the ninety day term of the order has not expired, the summary order
shall remain in full force and effect until a final decision has been
rendered by the committee or, if review is sought, by the administrative
review board. A summary order shall be public upon issuance.
(b) When a licensee has pleaded or been found guilty or convicted of
committing an act constituting a felony under New York state law or
federal law, or the law of another jurisdiction which, if committed
within this state, would have constituted a felony under New York state
law, or when the duly authorized professional disciplinary agency of
another jurisdiction has made a finding substantially equivalent to a
finding that the practice of medicine by the licensee in that
jurisdiction constitutes an imminent danger to the health of its people,
or when a licensee has been disciplined by a duly authorized
professional disciplinary agency of another jurisdiction for acts which
if committed in this state would have constituted the basis for summary
action by the commissioner pursuant to paragraph (a) of this
subdivision, the commissioner, after a recommendation by a committee of
professional conduct of the state board for professional medical
conduct, may order the licensee, by written notice, to discontinue or
refrain from practicing medicine in whole or in part or to take certain
actions authorized pursuant to this title immediately. The order of the
commissioner shall constitute summary action against the licensee and
become public upon issuance. The summary suspension shall remain in
effect until the final conclusion of a hearing which shall commence
within ninety days of the date of service of the commissioner's order,
end within ninety days thereafter and otherwise be held in accordance
with paragraph (a) of this subdivision, provided, however, that when the
commissioner's order is based upon a finding substantially equivalent to
a finding that the practice of medicine by the licensee in another
jurisdiction constitutes an imminent danger to the health of its people,
the hearing shall commence within thirty days after the disciplinary
proceedings in that jurisdiction are finally concluded.
13. (a) Temporary surrender. The license and registration of a
licensee who may be temporarily incapacitated for the active practice of
medicine and whose alleged incapacity has not resulted in harm to a
patient may be voluntarily surrendered to the board for professional
medical conduct, which may accept and hold such license during the
period of such alleged incapacity or the board for professional medical
conduct may accept the surrender of such license after agreement to
conditions to be met prior to the restoration of the license. The board
shall give prompt written notification of such surrender to the division
of professional licensing services of the state education department,
and to each hospital at which the licensee has privileges. The licensee
whose license is so surrendered shall notify all patients and all
persons who request medical services that the licensee has temporarily
withdrawn from the practice of medicine. The licensure status of each
such licensee shall be "inactive" and the licensee shall not be
authorized to practice medicine. The temporary surrender shall not be
deemed to be an admission of disability or of professional misconduct,
and shall not be used as evidence of a violation of subdivision seven or
eight of section sixty-five hundred thirty of the education law unless
the licensee practices while the license is "inactive". Any such
practice shall constitute a violation of subdivision twelve of section
sixty-five hundred thirty of the education law. The surrender of a
license under this subdivision shall not bar any disciplinary action
except action based solely upon the provisions of subdivision seven or
eight of section sixty-five hundred thirty of the education law and
where no harm to a patient has resulted, and shall not bar any civil or
criminal action or proceeding which might be brought without regard to
such surrender. A surrendered license shall be restored upon a showing
to the satisfaction of a committee of professional conduct of the state
board for professional medical conduct that the licensee is not
incapacitated for the active practice of medicine provided, however,
that the committee may impose reasonable conditions on the licensee, if
it determined that due to the nature and extent of the licensee's former
incapacity such conditions are necessary to protect the health of the
people. The chairperson of the committee shall issue a restoration order
adopting the decision of the committee. Prompt written notification of
such restoration shall be given to the division of professional
licensing services of the state education department and to all
hospitals which were notified of the surrender of the license.
(b) Permanent surrender. The license and registration of a licensee
who may be permanently incapacitated for the active practice of
medicine, and whose alleged incapacity has not resulted in harm to a
patient, may be voluntarily surrendered to the board for professional
medical conduct. The board shall give prompt written notification of
such surrender to the division of professional licensing services of the
state education department, and to each hospital at which the licensee
has privileges. The licensee whose license is so surrendered shall
notify all patients and all persons who request medical services that
the licensee has permanently withdrawn from the practice of medicine.
The permanent surrender shall not be deemed to be an admission of
disability of or professional misconduct, and shall not be used as
evidence of a violation of subdivision seven or eight of section
sixty-five hundred thirty of the education law. The surrender shall not
bar any civil or criminal action or proceeding which might be brought
without regard to such surrender. There shall be no restoration of a
license that has been surrendered pursuant to this subdivision.
14. Reports. The board shall prepare an annual report for the
legislature, the governor and other executive offices, the medical
profession, medical professional societies, consumer agencies and other
interested persons. Such report shall include, but shall not be limited
to, a description and analysis of the administrative procedures and
operations based upon a statistical summary relating to (i) discipline,
(ii) complaint, investigation, and hearing backlog and (iii) budget.
Information provided for these sections shall be enumerated by regional
office of the office of professional medical conduct.
* 15. The commissioner shall make grants to any physician committee as
referred to in subparagraph (ii) of paragraph (c) of subdivision eleven
of this section to fund the operations of such committee during the
authorized demonstration period. Grants shall be awarded pursuant to an
expenditure plan developed by the sponsoring organization in
consultation with, and approved by the commissioner. No funds shall be
made available unless the committee's procedures have been approved by
the commissioner pursuant to paragraph (g) of subdivision eleven of this
section.
* NB Repealed March 31, 2008
16. Liability. Notwithstanding any other provision of law, persons who
assist the department as consultants, expert witnesses or monitors in
the investigation or prosecution of alleged professional misconduct,
licensure matters, restoration proceedings, probation, or criminal
prosecutions for unauthorized practice, shall not be liable for damages
in any civil action or proceeding as a result of such assistance, except
upon proof of actual malice. The attorney general shall defend such
persons in any such action or proceeding, in accordance with section
seventeen of the public officers law.
17. Monitoring. (a) A licensee may be ordered to have his or her
practice monitored by another appropriate licensee after investigation
and review pursuant to paragraph (a) of subdivision ten of this section,
if there is reason to believe that the licensee is unable to practice
medicine with reasonable skill and safety to patients.
(b) The director of the office of professional medical conduct, after
consultation with the executive secretary, shall direct counsel to
prepare a notice detailing the reasonable cause and a copy of the notice
shall be served on the licensee. The matter shall be presented to a
committee on professional conduct by an attorney for the department and
the licensee shall have the opportunity to be heard by such committee
and may be represented by counsel. A stenographic record of the
proceeding shall be made. Service of the notice shall be in accordance
with the methods of service authorized by paragraph (d) of subdivision
ten of this section.
(c) If the committee determines that reasonable cause exists as
specified in paragraph (a) of this subdivision and that there is
insufficient evidence for the matter to constitute misconduct as defined
in sections sixty-five hundred thirty and section sixty-five hundred
thirty-one of the education law, the committee may issue an order
directing that the licensee's practice of medicine be monitored for a
period specified in the order, which shall in no event exceed one year,
by a licensee approved by the director, which may include members of
county medical societies or district osteopathic societies designated by
the commissioner. The licensee responsible for monitoring the licensee
shall submit regular reports to the director. If the licensee refuses to
cooperate with the licensee responsible for monitoring or if the
monitoring licensee submits a report that the licensee is not practicing
medicine with reasonable skill and safety to his or her patients, the
committee may refer the matter to the director for further proceedings
pursuant to subdivision ten of this section. An order pursuant to this
paragraph shall be kept confidential and shall not be subject to
discovery or subpoena, unless the licensee refuses to comply with the
order.
(d) A licensee may not seek the appointment of a monitor pursuant to
this subdivision in lieu of an order issued pursuant to subdivision
seven of this section or a disciplinary proceeding pursuant to
subdivision ten or twelve of this section.
18. (a) The director shall have the authority to monitor physicians,
physician's assistants and specialist's assistants who have been placed
on probation pursuant to a determination of professional misconduct by
the board. During such period of probation, the director, or his or her
designee, as provided in the order of the board, and after consultation
with the executive secretary, (i) may review the professional
performance of the licensee by randomly selecting office records,
patient records and hospital charts, (ii) may require periodic visits by
the licensee to a member of the state board for professional medical
conduct or an employee of the office of professional medical conduct,
(iii) may require the licensee to obtain an appropriate monitor,
approved by the director, to monitor the licensee's practice, (iv) may
require an audit of the licensee's billings for services rendered during
probation, (v) may require the licensee to submit on a random basis to
tests for the presence of alcohol or drugs, (vi) may require the
licensee to obtain additional training prior to completion of the
probation, (vii) may require the licensee to work in a supervised
setting, (viii) may require, as a condition of the licensee's continued
practice, that the licensee undergo therapy and/or treatment approved
and monitored by the director, (ix) may require that the licensee comply
with the requirements of the penalty imposed, and (x) may impose upon
the licensee such additional requirements as reasonably relate to the
misconduct found or are necessary to protect the health of the people
pursuant to regulation. The director is authorized to delegate some or
all of the foregoing responsibilities to designated county medical
societies and district osteopathic societies.
(b) Any health care provider licensed pursuant to this chapter or the
education law, hospital licensed pursuant to article twenty-eight of
this chapter or medical school that participates in a monitoring or
remediation program pursuant to this subdivision and subdivision
seventeen of this section shall not be liable for the negligence of the
monitored licensee in providing medical care pursuant to a monitoring
program. However, this paragraph does not diminish the participating
provider's, hospital's or school's liability for failure to exercise
reasonable care in properly carrying out its responsibilities under the
program. The monitored licensee shall be required to maintain medical
malpractice insurance coverage with limits no less than two million
dollars per occurrence and six million dollars per policy year.
19. Upon receipt of information that indicates a licensee may be in
violation of the terms or conditions of probation, the director of the
office of professional medical conduct shall conduct an investigation.
If the director determines that a licensee may have violated probation,
the director shall give notice by letter to the licensee of the facts
forming the basis of the alleged violation of probation by the licensee,
that the licensee has a right to a hearing and may be represented by
counsel. If the licensee does not dispute the facts forming the basis of
the alleged violation of probation within twenty days of the date of the
letter, the director shall submit the matter to a committee on
professional conduct for its review and determination. If within twenty
days of the date of the letter, the licensee disputes any of the facts
forming the basis of the alleged violation of probation, the licensee
shall be afforded a hearing before a committee on professional conduct
to hear and make findings of fact, conclusions of law and a
determination. A stenographic record of the hearing shall be made. The
committee, after providing a licensee with an opportunity to be heard,
shall determine whether the licensee has violated probation and shall
impose an appropriate penalty as defined in section two hundred thirty-a
of this title. In determining the appropriate penalty, the committee
shall consider both the violation of probation and the prior
adjudication of misconduct. The chairperson of the committee shall issue
an order adopting the decision of the committee on professional conduct.
The order may be reviewed by the administrative review board for
professional medical conduct.
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