New York Lyme Bill Passed Into Law July 21,2004
4148--A
Cal. No. 1193
2003-2004 Regular Sessions
IN SENATE
April 10, 2003
___________
Introduced by Sens. HANNON, SEWARD, SALAND, LARKIN, LEIBELL, PADAVAN,
SPANO -- read twice and ordered printed, and when printed to be
committed to the Committee on Health -- recommitted to the Committee
on Health in accordance with Senate Rule 6, sec. 8 -- reported favora-
bly from said committee, ordered to first and second report, ordered
to a third reading, amended and ordered reprinted, retaining its place
in the order of third reading
AN ACT to amend the public health law, in relation to proceedings and
administrative review by the state board for professional medical
conduct; to amend the state administrative procedure act, in relation
to adjudicatory proceedings; and to amend the public health law and
the education law, in relation to making technical corrections thereto
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Subdivisions 1, 3, 6, 7, 8, 9 and 10 of section 230 of the
2 public health law, subdivision 1 as amended by chapter 537 of the laws
3 of 1998, subdivision 3 as amended by chapter 1005 of the laws of 1984,
4 subdivision 6 as amended and paragraph (n) of subdivision 10 as added by
5 chapter 266 of the laws of 1986, subdivision 7 and paragraph (g) of
6 subdivision 10 as amended by chapter 627 of the laws of 1996, subdivi-
7 sions 8 and 9 as amended by chapter 866 of the laws of 1980, subdivision
8 10 as added by chapter 109 of the laws of 1975, paragraphs (a), (b),
9 (e), (j), (l) and (m) of subdivision 10 as amended and paragraphs (i)
10 and (o) of subdivision 10 as added by chapter 606 of the laws of 1991,
11 subparagraph (i) of paragraph (a) and paragraph (h) of subdivision 10 as
12 amended by chapter 542 of the laws of 2000, subparagraph (ii) of para-
13 graph (a) of subdivision 10 as amended by chapter 558 of the laws of
14 1994, subparagraph (iii) of paragraph (a), paragraphs (c) and (p) of
15 subdivision 10 as amended by chapter 599 of the laws of 1996, subpara-
16 graph (iv) of paragraph (a) and paragraph (f) of subdivision 10 as
17 amended by chapter 37 of the laws of 1992, subparagraph (v) of paragraph
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05503-02-4
S. 4148--A 2
1 (a) of subdivision 10 as amended by chapter 542 of the laws of 2003,
2 subparagraph (vi) of paragraph (a) of subdivision 10 as added by chapter
3 610 of the laws of 1999, paragraph (k) of subdivision 10 as added by
4 chapter 773 of the laws of 1977, are amended to read as follows:
5 1. A state board for professional medical conduct is hereby created in
6 the department in matters of professional misconduct as defined in
7 sections sixty-five hundred thirty and sixty-five hundred thirty-one of
8 the education law. Its physician members shall be appointed by the
9 commissioner at least eighty-five percent of whom shall be from among
10 nominations submitted by the medical society of the state of New York,
11 the New York state osteopathic society, the New York academy of medi-
12 cine, county medical societies, statewide specialty societies recognized
13 by the council of medical specialty societies, and the hospital associ-
14 ation of New York state. Its lay members shall be appointed by the
15 commissioner with the approval of the governor. The board of regents
16 shall also appoint twenty percent of the members of the board. Not less
17 than sixty-seven percent of the members appointed by the board of
18 regents shall be physicians. Not less than eighty-five percent of the
19 physician members appointed by the board of regents shall be from among
20 nominations submitted by the medical society of the state of New York,
21 the New York state osteopathic society, the New York academy of medi-
22 cine, county medical societies, statewide medical societies recognized
23 by the council of medical specialty societies, and the hospital associ-
24 ation of New York state. Any failure to meet the percentage thresholds
25 stated in this subdivision shall not be grounds for invalidating any
26 action by or on authority of the board for professional medical conduct
27 or a committee or a member thereof. The board for professional medical
28 conduct shall consist of not fewer than eighteen physicians licensed in
29 the state for at least five years, two of whom shall be doctors of
30 osteopathy, not fewer than two of whom shall be physicians who dedicate
31 a significant portion of their practice to the use of non-conventional
32 medical treatments who may be nominated by New York state medical asso-
33 ciations dedicated to the advancement of such treatments, at least one
34 of whom shall have expertise in palliative care, and not fewer than
35 seven lay members. An executive secretary shall be appointed by the
36 chairperson and shall be a licensed physician. Such executive secretary
37 shall not be a member of the board for professional medical conduct,
38 shall hold office at the pleasure of, and shall have the powers and
39 duties assigned and the annual salary fixed by, the chairperson. The
40 chairperson shall also assign such secretaries or other persons to the
41 board as are necessary.
42 3. Each member of the board for professional medical conduct shall
43 receive a certificate of appointment, shall before beginning his or her
44 term of office file a constitutional oath of office with the secretary
45 of state, shall receive up to one hundred fifty dollars as prescribed by
46 the commissioner for each day devoted to board work not to exceed ten
47 thousand dollars in any one year, and shall be reimbursed for his or her
48 necessary expenses. The board shall use its best effort to assure, to
49 the extent practicable, that on a rotating basis, each member of the
50 board shall serve on a committee on professional conduct. If unavail-
51 able, the member may postpone service. The board shall report quarterly
52 to the legislature on the assignment of board members to investigative
53 and hearing panels (not including the administrative review board). The
54 report must include (a) panel dates, identification of panelists with
55 case identification redacted; (b) identification of panelists excused
56 from service and reason for excuse; and (c) a statement that explains
S. 4148--A 3
1 how the board has endeavored to fulfill the legislative intent that
2 assignments be rotated among the full board to the extent practicable.
3 Any member may be removed from the board at the pleasure of the commis-
4 sioner.
5 6. Any committee on professional conduct, including an investigation
6 or hearing committee, appointed pursuant to the provisions of this
7 section shall consist of two physicians and one [lay] member who is not
8 a provider of health care services. As used in this section, "provider
9 of health care services" shall mean an individual who is: a current or
10 former provider of health care (including but not limited to health care
11 practitioners licensed under title eight of the education law, or ancil-
12 lary personnel employed under the supervision of such a health care
13 practitioner); a person whose primary current activity is the adminis-
14 tration (including as a member of a board of trustees or directors) of a
15 health care facility; one who has an ownership interest in any entity
16 which has as its primary purpose the delivery of health care, the
17 conduct of research into or instruction of health care, or the
18 production or supply of drugs or medical devices; a professional employ-
19 ee of a health profession school; or the spouse or domestic partner of a
20 provider of health care services. All committee assignments shall be
21 public; provided that any information identifying the licensee shall be
22 kept confidential until and unless the identity of the licensee is made
23 public under this title.
24 7. The board for professional medical conduct, by its committees on
25 professional conduct, shall conduct disciplinary proceedings as
26 prescribed in this section and shall assist in other professional
27 conduct matters as prescribed by the chairperson. In this section the
28 term "licensee" shall mean physician, including a physician practicing
29 under a limited permit, a medical resident, physician's assistant and
30 specialist's assistant; and the term "director" shall mean the director
31 of the office of professional medical conduct. A committee on profes-
32 sional conduct, on notice to the licensee and after affording the licen-
33 see, the office of professional medical conduct, and their attorneys an
34 opportunity to be heard, shall have the authority to direct a licensee
35 to submit to a medical or psychiatric examination when the committee has
36 reason to believe the licensee may be impaired by alcohol, drugs, phys-
37 ical disability or mental disability. The committee, with the advice of
38 the licensee and the office of professional medical conduct, shall
39 designate the physician who will conduct the examination. The results of
40 the examination shall be provided by the examining physician to the
41 committee, the licensee, and the office of professional medical conduct.
42 The licensee may also obtain a physician to conduct an examination the
43 results of which shall be provided to the committee and the office of
44 professional medical conduct.
45 8. Notwithstanding any other provision of law, no member of a commit-
46 tee on professional conduct nor an employee of the board for profes-
47 sional medical conduct shall be liable in damages to any person for any
48 action taken or recommendation made by him or her within the scope of
49 his or her function as a member of such committee or employee provided
50 that (a) such member or employee has taken action or made recommenda-
51 tions within the scope of his or her function and without malice, and
52 (b) in the reasonable belief after reasonable investigation that the act
53 or recommendation was warranted, based upon the facts disclosed.
54 9. Notwithstanding any other provisions of law, neither the
55 proceedings nor the records of any such committee shall be subject to
56 disclosure under article thirty-one of the civil practice law and rules
S. 4148--A 4
1 except as hereinafter provided. No person in attendance at a meeting of
2 any such committee shall be required to testify as to what transpired
3 [thereat]. The prohibition relating to discovery of testimony shall not
4 apply to the statements made by any person in attendance at such a meet-
5 ing who is a party to an action or proceeding the subject matter of
6 which was reviewed at such meeting.
7 10. Professional misconduct proceedings shall consist of:
8 (a) Investigation. (i) The board for professional medical conduct, by
9 the director [of the office of professional medical conduct], may inves-
10 tigate on its own any suspected professional misconduct, and shall
11 investigate each complaint received regardless of the source. The direc-
12 tor [of the office of professional medical conduct] shall cause a
13 preliminary review of every report made to the department pursuant to
14 section twenty-eight hundred three-e as added by chapter eight hundred
15 sixty-six of the laws of nineteen hundred eighty, sections twenty-eight
16 hundred five-l and forty-four hundred five-b of this chapter, and
17 section three hundred fifteen of the insurance law, to determine if such
18 report reasonably appears to reflect physician conduct warranting
19 further investigation pursuant to this subparagraph.
20 (ii) If the investigation of cases referred to an investigation
21 committee involves issues of clinical practice, medical experts who are
22 qualified by sufficient training or experience to render an opinion on
23 the matter at issue, shall be consulted. Experts may be made available
24 by the state medical society of the state of New York, by county medical
25 societies and specialty societies, and by New York state medical associ-
26 ations dedicated to the advancement of non-conventional medical treat-
27 ments. Any information obtained by medical experts in consultations,
28 including the names of licensees or patients, shall be confidential and
29 shall not be disclosed except as otherwise authorized or required by
30 law.
31 (iii) In the investigation of cases referred to an investigation
32 committee, the licensee being investigated shall have an opportunity to
33 be interviewed by the office of professional medical conduct in order to
34 provide an explanation of the issues under investigation. [The] At
35 least twenty days before the interview, the licensee under investigation
36 shall be given written notice of: (A) each element of each issue in the
37 case with sufficient precision to clearly apprise the licensee of the
38 conduct that is the subject of each issue in the case; (B) the fact that
39 anything the licensee writes or states in person may be used against him
40 or her subsequently in the investigation; and (C) the fact that the
41 licensee may [have] be represented by counsel [present] and may be
42 accompanied by a stenographer to transcribe the proceeding. All costs
43 of transcription shall be paid by the licensee and a copy shall be
44 provided to the department by the licensee. Providing an opportunity
45 for such an interview shall be a condition precedent to the convening of
46 an investigation committee on professional misconduct of the board for
47 professional medical conduct. Within [ninety days of any interview of
48 the licensee, an investigation committee on professional conduct of the
49 board of professional medical conduct shall be convened. The] thirty
50 days following the interview, the licensee shall be provided with a copy
51 of the report of the interviewer. Thereafter, the licensee shall prompt-
52 ly be given written notice of any particular issues identified subse-
53 quent to the interview with sufficient precision to clearly apprise the
54 licensee of the conduct that is the subject of each issue.
55 The licensee may submit written comments or expert opinion to the
56 office of professional medical conduct at any time. If the director
S. 4148--A 5
1 determines that the matter shall be submitted to an investigation
2 committee, within ninety days of any interview of the licensee, an
3 investigation committee shall be convened. The director shall present
4 the investigation committee with the following: (A) the original
5 complaint; (B) the report of the interviewer and the stenographic record
6 if one was taken; (C) the report of any medical or scientific expert;
7 (D) copies of relevant patient records and a report of any record
8 review; (E) the licensee's submissions; and (F) any relevant medical or
9 scientific literature.
10 If the matter is to be submitted to an investigation committee, the
11 licensee shall promptly be notified. The notice shall state: (A) that
12 the licensee may submit a statement in writing including relevant docu-
13 ments and medical or scientific literature and (B) whether the issues in
14 the case have changed since the previous notice to the licensee; if they
15 have changed, the notice shall state each element of each issue in the
16 case with sufficient precision to clearly apprise the licensee of the
17 conduct that is the subject of each issue in the case; if the case was
18 referred to an expert for review, the expert's report shall be disclosed
19 if it has not been previously.
20 (iv) If the director of the office of professional medical conduct,
21 after obtaining the concurrence of a majority of an investigation
22 committee as to the nature of the alleged misconduct and the grounds for
23 charges of misconduct, and after consultation with the executive secre-
24 tary, determines that a hearing is warranted the director shall, within
25 fifteen days thereafter, direct counsel to advise the licensee that the
26 investigative committee has recommended charges and that the licensee is
27 entitled to participate in an informal settlement conference, and to
28 prepare the charges.
29 (v) If [the director determines after consultation with an] a majority
30 of the investigation committee determines that: (A) evidence exists of a
31 single incident of negligence or incompetence, a pattern of inappropri-
32 ate prescribing or medical practice, or impairment by drugs, alcohol,
33 physical or mental disability; (B) a recommendation was made by a county
34 medical society or the medical society of the state of New York that
35 warrants further review; or (C) the facts underlying a verdict in a
36 medical malpractice action warrant further review, the director, in
37 addition to the authority set forth in this section, shall be authorized
38 to conduct a comprehensive review of patient records of the licensee and
39 such office records of the licensee as are related to said determi-
40 nation. The licensee shall cooperate with the investigation and willful
41 failure to cooperate in a substantial or material respect may result in
42 an enforcement proceeding pursuant to [subparagraph (ii) of] paragraph
43 [(o)] (r) of this subdivision. If there is a question of alcoholism,
44 alcohol abuse, drug abuse or mental illness, the director may refer the
45 matter to a committee, as referred to in subparagraph (ii) of paragraph
46 (c) of subdivision eleven of this section.
47 [(v)] (vi) The files of the office of professional medical conduct
48 relating to the investigation of possible instances of professional
49 misconduct shall be confidential and not subject to disclosure at the
50 request of any person, except as provided by law in a pending discipli-
51 nary action or proceeding. The provisions of this paragraph shall not
52 prevent the office from sharing information concerning investigations
53 within the department and, pursuant to subpoena, with other duly author-
54 ized public agencies responsible for professional regulation or criminal
55 prosecution. Nothing in this subparagraph shall affect the duties of
56 notification [set forth in] under subdivision nine-a of this section.
S. 4148--A 6
1 [(vi)] (vii) The office of professional medical conduct, acting under
2 this section, may have access to the criminal history record of any
3 licensee governed by the provisions of this section maintained by the
4 division of criminal justice services pursuant to subdivision six of
5 section eight hundred thirty-seven of the executive law.
6 (b) Charges. The charges shall state the substance of the alleged
7 professional misconduct and shall state clearly and concisely the mate-
8 rial facts but not the evidence by which the charges are to be proved.
9 (c) Notice of hearing. The board for professional medical conduct
10 shall set the time and place of the hearing. The notice of hearing shall
11 state (1) the date, time and place of the hearing, (2) that the licensee
12 shall file a written answer to each of the charges and allegations in
13 the statement of charges no later than ten days prior to the hearing,
14 that any charge and allegation not so answered shall be deemed admitted
15 and that the licensee may wish to seek the advice of counsel prior to
16 filing such answer, (3) that the licensee shall appear personally at the
17 hearing and may be represented by counsel, (4) that the licensee shall
18 have the right to produce witnesses and evidence in his or her behalf,
19 to cross-examine witnesses and examine evidence produced against him or
20 her, and to have subpoenas issued in his or her behalf to require the
21 production of witnesses and evidence in manner and form as prescribed by
22 the civil practice law and rules or either party may issue such subpoe-
23 nas in their own behalf, (5) that a stenographic record of the hearing
24 will be made, and (6) such other information as may be considered appro-
25 priate by the committee.
26 (d) Service of charges and of notice of hearing. A copy of the charges
27 and the notice of the hearing shall be served on the licensee personally
28 by the board for professional medical conduct at least [twenty] forty
29 days before the hearing, except that if the licensee's license has been
30 suspended, the licensee shall be served charges and notice of hearing at
31 least twenty days before the hearing and may be granted an earlier hear-
32 ing date at his or her request. If personal service cannot be made
33 after due diligence and such fact is certified under oath, a copy of the
34 charges and the notice of hearing shall be served by registered or
35 certified mail to the licensee's last known address by the board at
36 least fifteen days before the hearing. A postponement of the initial
37 hearing date may be granted for good cause shown for up to sixty days by
38 the hearing committee upon request by either party.
39 (e) Expert disclosure. No later than ten days prior to the hearing
40 each side shall disclose to the other names of any expert witnesses that
41 are to be called as a witness at the hearing, and in reasonable detail,
42 their area of expertise. The office of professional medical conduct
43 shall also disclose to the licensee any exculpatory evidence it has
44 uncovered during its consultations with expert witnesses in specific or
45 any other witness in general.
46 (f) Committee hearing. The hearing shall be conducted by a committee
47 on professional conduct. The members of the hearing committee shall be
48 appointed by the chairperson of the board for professional medical
49 conduct who shall designate the committee chairperson. In addition to
50 said committee members, the commissioner shall designate an administra-
51 tive officer, admitted to practice as an attorney in the state of New
52 York, who shall have the authority to rule on all motions, including
53 motions to compel disclosure of information or material claimed to be
54 protected because of privilege or confidentiality, procedures and other
55 legal objections and shall draft the conclusions of the hearing commit-
56 tee pursuant to paragraph [(g)] (j) of this subdivision. The adminis-
S. 4148--A 7
1 trative officer shall have the authority to rule on objections to ques-
2 tions posed by either party or the committee members. The
3 administrative officer shall not be entitled to vote. Any ruling by an
4 administrative officer may be immediately appealed to a senior adminis-
5 trative officer.
6 [(f)] (g) Conduct of hearing. All hearings must be commenced within
7 sixty days of the service of charges [except that an adjournment of the
8 initial hearing date may be granted by the hearing committee upon
9 request by either party upon good cause shown] and one year from the
10 service of notice of the interview. However, the time periods may be
11 extended upon motion by the director to the investigation committee,
12 upon a showing of good cause justifying the extension. [No] After the
13 hearing has commenced, no adjournment shall exceed thirty days nor be
14 unreasonably denied. The evidence in support of the charges shall be
15 presented by an attorney. The licensee shall have the rights required to
16 be stated in the notice of hearing ([subparagraph] paragraph (c) of this
17 subdivision) and in section four hundred one of the state administrative
18 procedure act. The committee shall not be bound by the rules of
19 evidence, [but its conclusion] except as otherwise provided in this
20 section. The committee's conclusion shall be based on a preponderance
21 of the evidence. A hearing which has been initiated shall not be discon-
22 tinued because of the death or incapacity to serve of one member of the
23 hearing committee. In the event of a member's death or incapacity to
24 serve on the committee, a member shall be appointed immediately by the
25 chairperson of the board for professional medical conduct. The member
26 shall affirm in writing that he or she has read and considered evidence
27 and transcripts of the prior proceedings. The last hearing day must be
28 held within one hundred twenty days of the first hearing day. Either
29 party, for good cause shown, may request that the committee extend the
30 last hearing day beyond one hundred twenty days. An extension requested
31 by the licensee and granted by the committee may not be used as the
32 grounds for a proceeding brought under paragraph [(j)] (m) of this
33 subdivision.
34 [(g)] (h) Medical and scientific publications. For purposes of a
35 hearing under this section, published material on a subject of medicine
36 or science may be established as a reliable authority by the testimony
37 or admission of an expert witness or other expert testimony. Where a
38 publication has been so established, statements contained therein may be
39 called to the attention of an expert witness during cross-examination
40 and may be admitted as evidence for any purpose relevant to the proceed-
41 ing. The hearing committee shall have the discretion to determine the
42 authority, weight, and credibility to give evidence under this para-
43 graph.
44 (i) Exculpatory evidence. Where the office of professional medical
45 conduct has knowledge and possession of any material evidence that tends
46 to prove the innocence of the licensee or impeach the credibility of any
47 witness against the licensee, it shall immediately disclose such
48 evidence to the licensee.
49 (j) Results of hearing. The committee shall make (1) findings of fact,
50 (2) conclusions concerning the charges sustained or dismissed, and (3) a
51 determination regarding charges sustained or dismissed, and in the
52 event any of the charges have been sustained, of the penalty to be
53 imposed or appropriate action to be taken and the reasons for the deter-
54 mination. For the committee to make a conclusion sustaining a charge, or
55 determining a penalty or the appropriate action to be taken, two members
56 of the committee must vote for such a conclusion or determination. The
S. 4148--A 8
1 committee shall issue an order based on its determination. The commit-
2 tee's findings, conclusions, determinations and order shall become
3 public upon issuance in any case in which annulment, suspension without
4 stay or revocation of the licensee's license is ordered.
5 [(h)] (k) Disposition of results. The findings, conclusions, determi-
6 nation and the reasons for the determination of the committee shall be
7 served upon the licensee, the department, and any hospitals, primary
8 practice settings or health care plans required to be identified in
9 publicly disseminated physician data pursuant to paragraph (j), (n), or
10 (q) of subdivision one of section twenty-nine hundred ninety-five-a of
11 this chapter, within sixty days of the last day of hearing. Service
12 shall be either by certified mail upon the licensee at the licensee's
13 last known address and such service shall be effective upon receipt or
14 seven days after mailing by certified mail whichever is earlier or by
15 personal service and such service shall be effective upon receipt. The
16 licensee shall deliver to the board the license which has been revoked,
17 annulled, suspended or surrendered, together with the registration
18 certificate, within five days after receipt of the order. If the license
19 or registration certificate is lost, misplaced or its whereabouts is
20 otherwise unknown, the licensee shall submit an affidavit to that effect
21 and shall deliver such license or certificate to the board for profes-
22 sional medical conduct when located. The director [of the office] shall
23 promptly transmit a copy of the order to the division of professional
24 licensing services of the state education department and to each hospi-
25 tal at which the licensee has privileges.
26 [(i)] (l) The determinations of a committee on professional conduct of
27 the state board for professional medical conduct may be reviewed by the
28 administrative review board for professional medical conduct in accord-
29 ance with subdivision four of section two hundred thirty-c of this
30 title.
31 [(j)] (m) Time limitations. Failure to comply with a provision of this
32 subdivision requiring that a specified action shall be taken within a
33 specified period of time shall be grounds for a proceeding pursuant to
34 article seventy-eight of the civil practice law and rules for an order
35 staying the hearing or dismissing the charges or any part thereof or any
36 other appropriate relief. Such proceeding shall be returnable before the
37 supreme court of Albany county or New York county. The respondent in
38 such proceeding shall have the initial burden to explain the reasons for
39 the failure to comply with a provision of this subdivision requiring
40 that a specified action to be taken within a specified period of time.
41 The court shall not stay the hearing or dismiss the charges or grant any
42 other relief unless it determines that failure to comply was not caused
43 by the article seventy-eight petitioner and has caused substantial prej-
44 udice to the article seventy-eight petitioner.
45 [(k)] (n) The executive secretary of the board for professional
46 medical conduct with the specific approval of a committee on profes-
47 sional conduct of the board shall have the power to issue subpoenas
48 requiring persons to appear before the board and be examined with refer-
49 ence to a matter within the scope of the inquiry or the investigation
50 being conducted by the board and produce books, papers, records or docu-
51 ments pertaining thereto.
52 [(l)] (o) The board for professional medical conduct or its represen-
53 tatives may examine and obtain records of patients treated by the licen-
54 see in any investigation or proceeding by the board acting within the
55 scope of its authorization. Unless expressly waived by the patient, any
56 information so obtained shall be confidential and shall not be disclosed
S. 4148--A 9
1 except to the extent necessary for the proper function of the board and
2 the name of the patient may not be disclosed by the board or its employ-
3 ees to any party other than the respondent or his or her legal counsel
4 at any stage of the proceedings unless the patient has expressly
5 consented. Any other use or dissemination by any person by any means,
6 unless pursuant to a valid court order or otherwise provided by law, is
7 prohibited. Where the board or its representative has reasonable cause
8 to suspect that a licensee may be unfit to practice due to medical or
9 mental health issues, the relevant personal medical records of the
10 licensee may be sought upon notice to the licensee, and must be provided
11 within ten days of the date of notice; if within ten days of the notice
12 the licensee objects to providing, or advises the board that he or she
13 is unable to provide his or her personal medical record, the board may
14 issue a subpoena for the relevant personal medical records of the licen-
15 see, upon notice to the licensee; the treating health care provider
16 shall be advised as part of the subpoena that he or she is not the
17 subject of investigation.
18 [(m)] (p) Expedited procedures. (i) Violations. Violations involving
19 professional misconduct of a minor or technical nature may be resolved
20 by expedited procedures as provided in subparagraph (ii) or (iii) of
21 this paragraph. For purposes of this paragraph violations of a minor or
22 technical nature shall include, but shall not be limited to, isolated
23 instances of violations concerning professional advertising or record
24 keeping, and other isolated violations which do not directly affect or
25 impair the public health, welfare or safety.
26 (ii) Administrative warning and consultation. If the director [of the
27 office of professional medical conduct], after obtaining the concurrence
28 of a majority of a committee on professional conduct, [and after consul-
29 tation with the executive secretary,] determines that there is substan-
30 tial evidence of professional misconduct of a minor or technical nature
31 or of substandard medical practice which does not constitute profes-
32 sional misconduct, the director may issue an administrative warning
33 and/or provide for consultation with a panel of one or more experts,
34 chosen by the director. Panels of one or more experts may include, but
35 shall not be limited to, a peer review committee of a county medical
36 society or a specialty board. Administrative warnings and consultations
37 shall be confidential and shall not constitute an adjudication of guilt
38 or be used as evidence that the licensee is guilty of the alleged
39 misconduct. However, in the event of a further allegation of similar
40 misconduct by the same licensee, the matter may be reopened and further
41 proceedings instituted as provided in this section.
42 (iii) Violation committee proceeding. If the director determines,
43 after obtaining the concurrence of a majority of a committee on profes-
44 sional conduct, [and after consultation with the executive secretary,]
45 that there is substantial evidence of a violation and that the violation
46 is of a nature justifying a penalty as specified in this subparagraph
47 the department may prepare and serve charges, either by personal service
48 or by certified mail, return receipt requested. A violation committee
49 proceeding shall be commenced within three years of the alleged profes-
50 sional misconduct. Such charges shall include a statement that the
51 matter shall be referred to a committee on professional conduct, which
52 shall act as a violations committee for determination. The violations
53 committee shall be appointed by the chairperson of the state board for
54 professional medical conduct. Paragraph (c) of this subdivision [ten of
55 this section] shall apply to the proceeding. A stenographic record of
56 the hearing shall be made. The evidence in support of the charges shall
S. 4148--A 10
1 be presented by an attorney and the licensee shall be afforded an oppor-
2 tunity to be heard and to present evidence in his or her behalf. Such
3 violations committee may issue a censure and reprimand, may require the
4 licensee to perform up to twenty-five hours of public service in a
5 facility licensed pursuant to article twenty-eight of this chapter in a
6 manner and at a time and place directed by the board, and in addition,
7 or in the alternative, may impose a fine not to exceed five hundred
8 dollars for each specification of minor or technical misconduct. The
9 violations committee may alternatively dismiss the charges in the inter-
10 est of justice. The order shall be served either by certified mail to
11 the licensee's last known address and such services shall be effective
12 upon receipt or seven days after mailing by certified mail whichever is
13 earlier or by personal service and such service shall be effective upon
14 receipt. The order may be reviewed by the administrative appeals board
15 for professional medical conduct.
16 [(n)] (q) Engagement. A proceeding under this section shall be treated
17 in the same manner as an action or proceeding in supreme court for the
18 purpose of any claim by counsel of actual engagement.
19 [(o)] (r) Orders for review of medical records. Where the director has
20 issued an order for a comprehensive medical review of patient records
21 and office records pursuant to subparagraph [four] (v) of paragraph (a)
22 of this subdivision and the licensee has refused to comply with the
23 director's order, the director may apply to a justice of the supreme
24 court, in writing, on notice to the licensee, for a court order to
25 compel compliance with the director's order. The court shall not grant
26 the application unless it finds that (i) there was a reasonable basis
27 for issuance of the director's order and (ii) there is reasonable cause
28 to believe that the records sought are relevant to the director's order.
29 The court may deny the application or grant the application in whole or
30 in part.
31 [(p)] (s) Convictions of crimes or administrative violations. In cases
32 of professional misconduct based solely upon a violation of subdivision
33 nine of section sixty-five hundred thirty of the education law, the
34 director may direct that charges be prepared and served and may refer
35 the matter to a committee on professional conduct for its review and
36 report of findings, conclusions as to guilt, and determination. In such
37 cases, the notice of hearing shall state that the licensee shall file a
38 written answer to each of the charges and allegations in the statement
39 of charges no later than ten days prior to the hearing, and that any
40 charge or allegation not so answered shall be deemed admitted, that the
41 licensee may wish to seek the advice of counsel prior to filing such
42 answer that the licensee may file a brief and affidavits with the
43 committee on professional conduct, that the licensee may appear
44 personally before the committee on professional conduct, may be repres-
45 ented by counsel and may present evidence or sworn testimony in his or
46 her behalf, and the notice may contain such other information as may be
47 considered appropriate by the director. The department may also present
48 evidence or sworn testimony and file a brief at the hearing. A steno-
49 graphic record of the hearing shall be made. Such evidence or sworn
50 testimony offered to the committee on professional conduct shall be
51 strictly limited to evidence and testimony relating to the nature and
52 severity of the penalty to be imposed upon the licensee. Where the
53 charges are based on the conviction of state law crimes in other juris-
54 dictions, evidence may be offered to the committee which would show that
55 the conviction would not be a crime in New York state. The committee on
56 professional conduct may reasonably limit the number of witnesses whose
S. 4148--A 11
1 testimony will be received and the length of time any witness will be
2 permitted to testify. The determination of the committee shall be served
3 upon the licensee and the department in accordance with the provisions
4 of paragraph [(h)] (k) of this subdivision. A determination pursuant to
5 this subdivision may be reviewed by the administrative review board for
6 professional medical conduct.
7 (t) Informal settlement conference. (i) If requested by the licensee
8 under subparagraph (iv) of paragraph (a) of this subdivision or, if
9 requested by the licensee after the service of charges provided that the
10 office of professional medical conduct agrees, an informal settlement
11 conference shall be convened. An informal settlement conference shall be
12 attended by the assigned prosecutor, the licensee and his or her attor-
13 ney, a member of the board of professional medical conduct, and a faci-
14 litator assigned by the executive secretary. The prosecutor and the
15 licensee may present evidence, other material, and argument. An informal
16 settlement conference shall not include testimony of witnesses, shall
17 not be recorded or transcribed, and shall not be attended by the
18 assigned investigator. Nothing said or presented by or on behalf of the
19 licensee at the informal settlement conference may be used as the basis
20 for additional investigation or charges, or be used to prove any charge,
21 against the licensee.
22 (ii) A proposed settlement of any or all charges against a licensee
23 resulting from an informal settlement conference shall be reviewed by
24 the commissioner. The commissioner shall approve the proposed settlement
25 if it is consistent with law, protects the public, and is an appropriate
26 disposition of the matter. A settlement of one or more charges against
27 a licensee, upon acceptance by the licensee and the commissioner, shall
28 dispose of the allegation, or allegations, charge or charges, and shall
29 be binding upon the department and the licensee.
30 (u) Evaluation program. (i) If at any time during the investigation or
31 any subsequent proceeding, an investigative committee, a hearing commit-
32 tee or the administrative review board determines that the misconduct
33 investigated, alleged or established is not egregious, grossly negli-
34 gent, grossly incompetent or sexual misconduct, the licensee may be
35 offered the option of submitting to an evaluation of professional compe-
36 tence by an appropriate entity that has been approved by the commis-
37 sioner and to such retraining or monitoring, if any, as may be required
38 at his or her own expense. The commissioner or the board may set reason-
39 able terms and conditions consistent with this paragraph. The evaluation
40 program must, at a minimum, ascertain the suitability of retraining,
41 monitoring, or both as a reasonable means of correcting the deficiencies
42 in practice or conduct which are the subject of investigation or other
43 proceeding. The retraining entity shall not be liable for the negligence
44 of the licensee in providing medical care as part of a retraining
45 program. However, this paragraph does not diminish the retraining enti-
46 ty's liability for failure to exercise reasonable care in properly
47 carrying out its responsibilities under the program.
48 (ii) If the licensee elects to submit to such an evaluation and
49 retraining or monitoring, the pending investigation or proceeding shall
50 be suspended until the licensee completes the evaluation and any
51 prescribed retraining or monitoring.
52 (iii) The office of professional medical conduct shall monitor the
53 licensee's progress to assure prompt compliance with all evaluation,
54 retraining and monitoring requirements.
55 (iv) Upon completion of the evaluation, the evaluation and retraining
56 entity shall make a written report to the office of professional medical
S. 4148--A 12
1 conduct and the licensee of the results of the evaluation, which shall
2 include a finding: (A) that the deficiencies or conduct can be remedied
3 through retraining or monitoring; or (B) that there are no deficiencies
4 for which retraining or monitoring are required; or (C) that the defi-
5 ciencies are not of a nature that can be remedied through retraining or
6 monitoring.
7 (v) Upon completion pursuant to clause (A) of subparagraph (iv) of
8 this paragraph or satisfactory release pursuant to clause (B) of subpar-
9 agraph (iv) of this paragraph from the evaluation, retraining and/or
10 monitoring program, the evaluation and retraining entity shall make a
11 written report to that effect to the office of professional medical
12 conduct and the licensee. Upon confirming the report, the committee or
13 board shall dismiss and close the charges or proceedings, and vacate any
14 action, order or penalty in connection therewith and notification to
15 that effect shall be made to the licensee.
16 (vi) If the licensee is dismissed from the retraining or monitoring
17 program without satisfactorily completing its requirements or dismissed
18 from evaluation pursuant to clause (C) of subparagraph (iv) of this
19 paragraph, the evaluation and retraining entity shall make a written
20 report to that effect to the office of professional medical conduct and
21 the licensee and any suspended investigation or proceeding shall be
22 resumed.
23 (vii) The report of dismissal, completion or satisfactory release may
24 be considered in any further disciplinary action concerning the licensee
25 pursuant to this chapter.
26 (viii) Nothing contained in this paragraph shall prevent the board
27 for professional medical conduct or the administrative review board from
28 ordering evaluation, retraining or monitoring in conjunction with any
29 other order.
30 § 2. Paragraph (b) of subdivision 4 of section 230-c of the public
31 health law, as added by chapter 606 of the laws of 1991, is amended and
32 a new subdivision 6 is added to read as follows:
33 (b) The review board shall review whether or not the determination and
34 the penalty are consistent with the findings of fact and conclusions of
35 law and whether or not the penalty is appropriate and within the scope
36 of penalties permitted by section two hundred thirty-a of this title.
37 The review board shall have the authority to remand a case to the
38 committee on professional conduct for reconsideration or further
39 proceedings. If the review board disagrees with the dismissal of any
40 charge, it shall remand the matter to the original hearing committee for
41 reconsideration or to a new hearing committee for a new hearing. A hear-
42 ing committee's dismissal of a charge on reconsideration or a new hear-
43 ing shall be final and not subject to review by the review board.
44 6. Notwithstanding the conclusion of a disciplinary matter, a disci-
45 plined licensee may file an application to the office of professional
46 medical conduct to reopen the matter based on newly available factual,
47 medical or scientific evidence pertaining to a final determination of a
48 committee. Such application shall be granted if the newly available
49 evidence probably would have produced a different result. On motion by
50 the licensee, a determination of the office on this matter may be
51 reviewed by the administrative review board for professional medical
52 conduct. Thereafter, an order of the administrative review board may be
53 reviewed pursuant to the proceedings under article seventy-eight of the
54 civil practice law and rules. Such proceeding shall be returnable before
55 the supreme court of Albany county or New York county.
S. 4148--A 13
1 § 3. The public health law is amended by adding a new section 230-d to
2 read as follows:
3 § 230-d. Written statements by consumers. 1. Definitions. As used in
4 this section, the following terms shall have the following meanings,
5 unless the context clearly requires otherwise:
6 (a) "Licensee" means physician, including a physician practicing under
7 a limited permit, a medical resident, physician's assistant and special-
8 ist's assistant.
9 (b) "Consumer" means any person who is being or has been cared for or
10 treated by the licensee who is the subject of a complaint, investigation
11 or proceeding under this title. In appropriate cases, a family member or
12 guardian may act for the consumer.
13 (c) "Consumer's case" means a complaint, investigation or proceeding
14 under this title involving alleged professional misconduct by a licen-
15 see, in which the consumer is a complainant or care or treatment of the
16 consumer is the subject of any allegation.
17 2. Written statement. A consumer may file a written statement concern-
18 ing the consumer's case relating to procedure, the alleged professional
19 medical conduct of the licensee, or the effect of the alleged conduct on
20 the consumer. Nothing contained in this section shall be interpreted to
21 require that a complainant supply a written statement. The written
22 statement may be submitted to the office of professional medical conduct
23 or board for professional medical conduct at any stage of the consumer's
24 case and shall be considered by such office or such board at any stage
25 of the case after it is submitted. A copy of the submitted written
26 statement shall immediately be provided to the licensee, redacted to
27 exclude any information that the licensee is not permitted to receive
28 under this title.
29 § 4. Section 230 of the public health law is amended by adding a new
30 subdivision 20 to read as follows:
31 20. A written and notarized statement submitted by a consumer under
32 subdivision two of section two hundred thirty-d of this title may be
33 submitted to the office of professional medical conduct or board for
34 professional medical conduct at any stage of a complaint, investigation
35 or proceeding under this title involving alleged professional medical
36 conduct by a licensee, in which the person is a complainant or the care
37 or treatment of the person is the subject of any allegation and shall be
38 considered by such office or such board at any stage of the case after
39 it is submitted. A copy of the submitted written statement shall imme-
40 diately be provided to the licensee, redacted to exclude any information
41 that the licensee is not permitted to receive under this title.
42 § 5. The state administrative procedure act is amended by adding a new
43 section 308 to read as follows:
44 § 308. Preservation of other rights and remedies. Where any provision
45 of a law or regulation provides greater rights, benefits, or protections
46 to any party charged or to be charged in any adjudicatory proceeding or
47 prospective adjudicatory proceeding than a provision of this article,
48 that provision shall supersede the provision of this article.
49 § 6. Subdivision 9 of section 230-a of the public health law, as added
50 by chapter 606 of the laws of 1991, is amended to read as follows:
51 9. A requirement that a licensee perform up to five hundred hours of
52 public service in a manner and at a time and place as directed by the
53 board. The board may stay such penalties in whole or in part or place
54 the licensee on probation with or without imposition of one of the
55 penalties provided pursuant to this section. Any fine imposed pursuant
56 to this section or pursuant to paragraph [(m)] (p) of subdivision ten of
S. 4148--A 14
1 section two hundred thirty of this title may be sued for and recovered
2 in the name of the people of the state of New York in an action brought
3 by the attorney general. In such action, the findings, determinations
4 and order of the board shall be admissible evidence and shall be conclu-
5 sive proof of the violation and the penalty assessed.
6 § 7. Subdivision 6 of section 6510 of the education law, as amended by
7 chapter 1005 of the laws of 1984, is amended to read as follows:
8 6. The provisions of subdivisions one through four of this section
9 shall not be applicable to proceedings in cases of professional miscon-
10 duct involving the medical profession, except as provided in paragraph
11 [m] (p) of subdivision ten of section two hundred thirty of the public
12 health law.
13 § 8. This act shall take effect on the sixtieth day after it shall
14 have become a law; provided, however, that effective immediately, the
15 addition, amendment and/or repeal of any rule or regulation necessary
16 for the implementation of this act on its effective date are authorized
17 and directed to be made and completed by the commissioner of the depart-
18 ment of health on or before such effective date; and provided, further,
19 that the amendments to paragraph (a) of subdivision 10 of section 230 of
20 the public health law made by section one of this act shall not affect
21 the expiration of such paragraph and shall be deemed to expire there-
22 with.
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