NY State Assembly Bill 2013-A7102B

Assembly Bill A7102B

2013-2014 Legislative Session

Relates to competency exams, service charges, petitions to modify or vacate orders, profiling requirements and modifying physician and advertising and testimony standards

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Archive: Last Bill Status - In Assembly Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2014	referred to health
Jun 19, 2013	reported referred to rules
Jun 17, 2013	print number 7102b
Jun 17, 2013	amend (t) and recommit to codes
Jun 07, 2013	print number 7102a
Jun 07, 2013	amend and recommit to codes
May 29, 2013	reported referred to codes
May 01, 2013	referred to health

Bill Amendments

Original

B (Active)

2013-A7102 - Details

See Senate Version of this Bill:: S4527
Current Committee:: Assembly Health
Law Section:: Public Health Law
Laws Affected:: Amd §§230 & 2995-a, Pub Health L; amd §§6530 & 6511, Ed L; amd Part A §32, Chap 58 of 2008

2013-A7102 - Summary

Relates to competency exams, service of charges, petitions to modify or vacate orders, profiling requirements and modifying physician and advertising and testimony standards.

2013-A7102 - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7102

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               May 1, 2013
                               ___________

Introduced  by  M.  of  A. GOTTFRIED -- (at request of the Department of
  Health) -- read once and referred to the Committee on Health

AN ACT to amend the public health law and the education law, in relation
  to enforcing compliance with clinical  competency  exams,  simplifying
  service  of  charges,  limiting  petitions to modify or vacate orders,
  profiling requirements of self-insured physicians, modifying physician
  and advertising and testimonial standards  and  to  amend  the  public
  health  law,  in  relation to expanding the applicability of penalties
  for willful violations of the  commissioner  of  health's  orders  and
  amending  chapter 58 of the laws of 2008, relating to reimbursement to
  particular provider pharmacies  and  prescription  drug  coverage,  in
  relation to the effectiveness of certain provisions thereof

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 7 of section 230 of the public  health  law  is
amended by adding a new paragraph (d) to read as follows:
  (D) (I) A COMMITTEE ON PROFESSIONAL CONDUCT, ON NOTICE TO THE LICENSEE
AND  AFTER AFFORDING THE LICENSEE AND THE OFFICE OF PROFESSIONAL MEDICAL
CONDUCT AN OPPORTUNITY TO BE HEARD, SHALL HAVE THE  AUTHORITY  TO  ORDER
THE  LICENSEE  TO  COMPLY  WITH RECOMMENDED REMEDIATION ARISING FROM THE
EXAMINATIONS IN PARAGRAPH (C) OF THIS SUBDIVISION. (II) IF  A  COMMITTEE
ON  PROFESSIONAL  CONDUCT  WHEN  CONSIDERING  THE  RESULTS OF A CLINICAL
COMPETENCY EXAMINATION PURSUANT TO PARAGRAPH  (C)  OF  THIS  SUBDIVISION
DETERMINES THAT THE LICENSEE IS INCOMPETENT AND THAT THERE IS NO PRACTI-
CAL  REMEDIATION  FOR  SUCH  INCOMPETENCE,  IT MAY REFER THE CASE TO THE
DIRECTOR OF THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT  FOR  THE  DIREC-
TOR'S  CONSIDERATION OF WHETHER TO PRESENT TO AN INVESTIGATION COMMITTEE
PURSUANT TO SUBPARAGRAPH (IV) OF PARAGRAPH (A)  OF  SUBDIVISION  TEN  OF
THIS SECTION FOR ITS CONCURRENCE ON CHARGES PURSUANT TO PARAGRAPH (B) OF
SUBDIVISION  FIVE  OF SECTION SIXTY-FIVE HUNDRED THIRTY OF THE EDUCATION
LAW.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09282-03-3

A. 7102                             2

  S 2. Subdivision 5 of section 6530 of the education law, as  added  by
chapter 606 of the laws of 1991, is amended to read as follows:
  5.  (A)  Practicing  the profession with incompetence on more than one
occasion; OR
  (B) BEING FOUND TO BE INCOMPETENT BY AN EXAMINATION WHICH HAS OCCURRED
PURSUANT TO PARAGRAPH (C) OF SUBDIVISION SEVEN OF  SECTION  TWO  HUNDRED
THIRTY  OF  THE PUBLIC HEALTH LAW WHEN THERE IS NO PRACTICAL REMEDIATION
FOR SUCH INCOMPETENCE.
  S 3. Subdivision 15 of section 6530 of the education law, as added  by
chapter 606 of the laws of 1991, is amended to read as follows:
  15. (A) Failure to comply with an order issued pursuant to subdivision
seven,  paragraph  (a)  of subdivision ten, and subdivision seventeen of
section two hundred thirty of the public health law; OR
  (B) FAILURE TO COMPLY WITH REMEDIATION RECOMMENDATIONS ARISING FROM AN
EXAMINATION WHEN AN EXAMINATION HAS OCCURRED PURSUANT TO  PARAGRAPH  (C)
OF  SUBDIVISION SEVEN OF SECTION TWO HUNDRED THIRTY OF THE PUBLIC HEALTH
LAW, WHEN SUCH COMPLIANCE HAS BEEN ORDERED BY  A  COMMITTEE  ON  PROFES-
SIONAL CONDUCT PURSUANT TO PARAGRAPH (D) OF SUBDIVISION SEVEN OF SECTION
TWO HUNDRED THIRTY OF THE PUBLIC HEALTH LAW.
  S  4.  Subparagraph  (i) of paragraph (d) of subdivision 10 of section
230 of the public health law, as amended by chapter 477 of the  laws  of
2008, is amended to read as follows:
  (i)  A  copy  of  the  charges  and the notice of the hearing shall be
served BY THE BOARD on the licensee EITHER (A) personally [by the board]
at least thirty 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];  OR  (B)  by
registered  or  certified  mail  to  the licensee's [last known] CURRENT
RESIDENTIAL  OR  PRACTICE  address  [by  the  board];  MAILED  at  least
[fifteen] THIRTY days before the hearing; OR (C) BY REGISTERED OR CERTI-
FIED  MAIL  TO  THE  LICENSEE'S CURRENT REGISTRATION ADDRESS PURSUANT TO
SECTION SIXTY-FIVE HUNDRED TWO OF THE EDUCATION LAW  OR  THE  LICENSEE'S
MOST  RECENT  MAILING  ADDRESS ON FILE WITH THE NEW YORK STATE EDUCATION
DEPARTMENT PURSUANT TO THE NOTIFICATION REQUIREMENT SET FORTH IN  SUBDI-
VISION  FIVE OF SUCH SECTION, MAILED AT LEAST FORTY-FIVE DAYS BEFORE THE
HEARING; OR (D) BY FIRST CLASS MAIL TO AN ATTORNEY, LICENSED TO PRACTICE
IN THE STATE OF NEW YORK, WHO HAS APPEARED ON BEHALF OF THE LICENSEE  IN
THE  MATTER  BEFORE THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT MAILED AT
LEAST THIRTY DAYS BEFORE THE HEARING.
  S 5. Paragraph (q) of subdivision 10 of  section  230  of  the  public
health  law,  as added by chapter 477 of the laws of 2008, is amended to
read as follows:
  (q) [At any time subsequent] SUBSEQUENT to the final conclusion  of  a
professional  misconduct proceeding against a licensee, whether upon the
determination and order of a hearing committee issued pursuant to  para-
graph (h) of this subdivision or upon the determination and order of the
administrative review board issued pursuant to paragraph (d) of subdivi-
sion  four  of  section two hundred thirty-c of this title, the licensee
may file a petition with the director, requesting vacatur  or  modifica-
tion of the determination and order.  IF THE DETERMINATION AND ORDER DID
NOT INCLUDE THE PENALTY OF LICENSE REVOCATION, THE PETITION MAY BE FILED
AT  ANY  TIME.  IF  THE  DETERMINATION  AND ORDER INCLUDED A SANCTION OF
LICENSE REVOCATION, THE PETITION MAY BE FILED AT ANY TIME PRIOR TO  SUCH
TIME  AS  THE  LICENSEE  IS  AUTHORIZED,  PURSUANT TO SECTION SIXTY-FIVE
HUNDRED ELEVEN OF THE EDUCATION LAW, THE RULES OF THE BOARD  OF  REGENTS
AND  THE  REGULATIONS  OF THE COMMISSIONER OF EDUCATION TO SEEK BOARD OF

A. 7102                             3

REGENTS RESTORATION OF THE REVOKED LICENSE. The  director  shall,  after
reviewing  the  matter  and  after  consulting  with department counsel,
determine in the reasonable exercise of his or  her  discretion  whether
there  is  new  and  material evidence that was not previously available
which, had it been available, would  likely  have  led  to  a  different
result,  or  whether  circumstances  have  occurred  subsequent  to  the
original determination that warrant a reconsideration of the measure  of
discipline.  Upon determining that such evidence or circumstances exist,
the director shall have the authority to join the licensee in an  appli-
cation  to  the  chairperson of the state board for professional medical
conduct to vacate or modify the determination and order, as the director
may deem appropriate. Upon the joint application of the licensee and the
director, the chairperson shall have the authority to grant or deny such
application.
  S 6. Section 6511 of the education law, as amended by chapter  542  of
the laws of 2000, is amended to read as follows:
  S 6511. Penalties for professional misconduct. The penalties which may
be imposed by the board of regents on a present or former licensee found
guilty of professional misconduct (under the definitions and proceedings
prescribed  in  sections  sixty-five hundred nine and sixty-five hundred
ten of this [article] SUBPART)  are:  (1)  censure  and  reprimand,  (2)
suspension  of  license,  (a)  wholly,  for  a fixed period of time; (b)
partially,  until  the  licensee  successfully  completes  a  course  of
retraining  in  the  area  to  which the suspension applies; (c) wholly,
until the licensee successfully completes a course of therapy or  treat-
ment prescribed by the regents; (3) revocation of license, (4) annulment
of  license  or registration, (5) limitation on registration or issuance
of any further license, (6) a fine not to exceed ten  thousand  dollars,
upon each specification of charges of which the respondent is determined
to  be  guilty,  (7)  a  requirement  that a licensee pursue a course of
education or training, and (8) a requirement that a licensee perform  up
to  one  hundred  hours of public service, in a manner and at a time and
place as directed by the board. The  board  of  regents  may  stay  such
penalties  in  whole or in part, may place the licensee on probation and
may restore a license which has been revoked, provided, in the  case  of
licensees  subject  to  section  two hundred thirty of the public health
law, notice that the board is considering such restoration is  given  to
the  office  of professional medical conduct at least thirty days before
the date on which such restoration shall be considered. Upon the  recom-
mendation  of  the  office of professional medical conduct, the board of
regents may deny such restoration.  IN THE EVENT THAT  THE  BOARD,  WHEN
CONSIDERING  SUCH  RESTORATION,  ELECTS  TO ACT IN A MANNER INCONSISTENT
WITH ANY RECOMMENDATION OF THE OFFICE OF PROFESSIONAL  MEDICAL  CONDUCT,
THE  BOARD  SHALL  INCLUDE  AN EXPLICIT JUSTIFICATION FOR DEPARTING FROM
SUCH RECOMMENDATION IN  ITS  WRITTEN  DETERMINATION.  Any  fine  imposed
pursuant  to  this  section  or  pursuant  to subdivision two of section
sixty-five hundred ten of this [article] SUBPART may  be  sued  for  and
recovered  in  the  name  of  the  people of the state of New York in an
action brought by the attorney general. In such action the findings  and
determination  of  the  board  of regents or of the violations committee
shall be admissible evidence  and  shall  be  conclusive  proof  of  the
violation and the penalty assessed.
  S  7.  Subdivision  3  of  section 2995-a of the public health law, as
added by chapter 542 of the laws of 2000, is amended to read as follows:
  3. Each physician who is self-insured for professional  medical  malp-
ractice  shall periodically report to the department on forms and in the

A. 7102                             4

time and manner required by the commissioner the  information  specified
in  paragraph  [(f)] (E) of subdivision one of this section, except that
the physician shall report the dollar  amount  (to  the  extent  of  the
physician's information and belief) for each judgment, award and settle-
ment and not a level of significance or context.
  S  8. Subdivision 27 of section 6530 of the education law, as added by
chapter 606 of the laws of 1991, is amended to read as follows:
  27. Advertising or soliciting for patronage that is not in the  public
interest. (a) Advertising or soliciting not in the public interest shall
include,  but  not be limited to, advertising or soliciting that: (i) is
false, fraudulent, deceptive, OR misleading[, sensational,  or  flamboy-
ant];
  (ii) represents intimidation or undue pressure;
  (iii) [uses testimonials;
  (iv)] guarantees any service;
  [(v)]  (IV)  makes  any  claim  relating  to  professional services or
products or the costs or price therefor which cannot be substantiated by
the licensee, who shall have the burden of proof;
  [(vi)] (V) makes claims of professional superiority  which  cannot  be
substantiated by the licensee, who shall have the burden of proof; or
  [(vii)]  (VI)  offers  bonuses or inducements in any form other than a
discount or reduction in an established fee or price for a  professional
service or product.
  (b)  The  following shall be deemed appropriate means of informing the
public of the availability of professional services:  (i)  informational
advertising not contrary to the foregoing prohibitions; and
  (ii) the advertising in a newspaper, periodical or professional direc-
tory or on radio [or], television, OR THE INTERNET of fixed prices, or a
stated  range  of  prices,  for specified routine professional services,
provided that if there is an  additional  charge  for  related  services
which  are an integral part of the overall service being provided by the
licensee, the advertisement shall so state, and  provided  further  that
the  advertisement indicates the period of time for which the advertised
prices shall be in effect.
  (c)(i) All licensees placing advertisements shall maintain,  or  cause
to  be maintained, an exact copy of each advertisement, transcript, tape
or video tape thereof as appropriate for the medium used, for  a  period
of  one  year  after its last appearance. This copy shall be made avail-
able for inspection upon demand of the department of health;
  (ii) A licensee shall not compensate or give anything of value to rep-
resentatives of the press, radio,  television  or  other  communications
media  in  anticipation  of or in return for professional publicity in a
news item[;].
  (d) [No demonstrations, dramatizations or other portrayals of  profes-
sional  practice  shall  be  permitted  in advertising on radio or tele-
vision;] TESTIMONIALS, DEMONSTRATIONS, DRAMATIZATIONS, OR OTHER PORTRAY-
ALS OF PROFESSIONAL PRACTICE ARE PERMITTED PROVIDED THAT THEY  OTHERWISE
COMPLY  WITH  THE  LAWS  OF  PROFESSIONAL  MEDICAL  CONDUCT  AND FURTHER
PROVIDED THAT THE FOLLOWING CONDITIONS ARE SATISFIED:
  (I) THE PATIENT EXPRESSLY AUTHORIZES THE PORTRAYAL IN WRITING;
  (II) THE APPROPRIATE DISCLOSURE IS INCLUDED TO PREVENT ANY  MISLEADING
INFORMATION OR IMAGERY AS TO THE IDENTITY OF THE PATIENT;
  (III) REASONABLE DISCLAIMERS ARE INCLUDED AS TO ANY STATEMENTS MADE OR
RESULTS ACHIEVED IN A PARTICULAR MATTER;
  (IV)  THE  USE OF FICTIONAL SITUATIONS OR CHARACTERS MAY BE USED IF NO
TESTIMONIALS ARE INCLUDED; AND

A. 7102                             5

  (V) FICTIONAL PATIENT TESTIMONIALS ARE NOT PERMITTED.
  S  9.  Subdivision  2  of  section  12-b  of the public health law, as
amended by section 17 of part A of chapter 58 of the laws  of  2008,  is
amended to read as follows:
  2.  A  person  who wilfully violates any provision of this chapter, or
any regulation lawfully made or established by  any  public  officer  or
board under authority of this chapter, OR ANY LAWFUL ORDER PRESCRIBED BY
THE  COMMISSIONER  OF  HEALTH, the punishment for violating which is not
otherwise prescribed by this chapter or any other law, is punishable  by
imprisonment  not  exceeding  one  year,  or by a fine not exceeding ten
thousand dollars or by both. Effective on and  after  April  first,  two
thousand  eight  the  comptroller  is  hereby authorized and directed to
deposit  amounts  collected  in  excess  of  two  thousand  dollars  per
violation  to  the patient safety center account to be used for purposes
of the patient safety center created by title  two  of  article  twenty-
nine-D of this chapter.
  S  10.  Section 32 of part A of chapter 58 of the laws of 2008, amend-
ing the elder law and other laws relating to reimbursement to particular
provider pharmacies  and  prescription  drug  coverage,  as  amended  by
section  26  of  part A of chapter 59 of the laws of 2011, is amended to
read as follows:
  S 32. This act shall take effect immediately and shall  be  deemed  to
have  been in full force and effect on and after April 1, 2008; provided
however, that sections one, six-a, nineteen,  twenty,  twenty-four,  and
twenty-five of this act shall take effect July 1, 2008; provided however
that sections sixteen[, seventeen] and eighteen of this act shall expire
April  1,  2014;  provided, however, that the amendments made by section
twenty-eight of this act shall take effect on the same date as section 1
of chapter 281 of the laws of 2007 takes effect; provided further,  that
sections  twenty-nine,  thirty,  and  thirty-one  of this act shall take
effect October 1, 2008; provided further, that section  twenty-seven  of
this  act  shall take effect January 1, 2009; and provided further, that
section twenty-seven of this act shall expire  and  be  deemed  repealed
March  31,  2014; and provided, further, however, that the amendments to
subdivision 1 of section 241 of the education law made by section  twen-
ty-nine  of this act shall not affect the expiration of such subdivision
and shall be deemed to expire therewith and provided that the amendments
to section 272 of the public health law made by section thirty  of  this
act  shall  not  affect  the  repeal of such section and shall be deemed
repealed therewith.
  S 11. This act shall take effect immediately; provided  that  sections
one, two, three, four, five, six and eight of this act shall take effect
on the sixtieth day after this act shall have become a law.

2013-A7102A - Details

See Senate Version of this Bill:: S4527
Current Committee:: Assembly Health
Law Section:: Public Health Law
Laws Affected:: Amd §§230 & 2995-a, Pub Health L; amd §§6530 & 6511, Ed L; amd Part A §32, Chap 58 of 2008

2013-A7102A - Summary

Relates to competency exams, service of charges, petitions to modify or vacate orders, profiling requirements and modifying physician and advertising and testimony standards.

2013-A7102A - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 7102--A

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               May 1, 2013
                               ___________

Introduced  by  M.  of  A. GOTTFRIED -- (at request of the Department of
  Health) -- read once and  referred  to  the  Committee  on  Health  --
  reported   and  referred  to  the  Committee  on  Codes  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN ACT to amend the public health law and the education law, in relation
  to enforcing compliance with clinical  competency  exams,  simplifying
  service  of  charges,  limiting  petitions to modify or vacate orders,
  profiling requirements of self-insured physicians, modifying physician
  and advertising and testimonial standards  and  to  amend  the  public
  health  law,  in  relation to expanding the applicability of penalties
  for willful violations of the  commissioner  of  health's  orders  and
  amending  chapter 58 of the laws of 2008, relating to reimbursement to
  particular provider pharmacies  and  prescription  drug  coverage,  in
  relation to the effectiveness of certain provisions thereof

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 7 of section 230 of the public  health  law  is
amended by adding a new paragraph (d) to read as follows:
  (D) (I) A COMMITTEE ON PROFESSIONAL CONDUCT, ON NOTICE TO THE LICENSEE
AND  AFTER AFFORDING THE LICENSEE AND THE OFFICE OF PROFESSIONAL MEDICAL
CONDUCT AN OPPORTUNITY TO BE HEARD, SHALL HAVE THE  AUTHORITY  TO  ORDER
THE  LICENSEE  TO  COMPLY  WITH RECOMMENDED REMEDIATION ARISING FROM THE
EXAMINATIONS IN PARAGRAPH (C) OF THIS SUBDIVISION. (II) IF  A  COMMITTEE
ON  PROFESSIONAL  CONDUCT  WHEN  CONSIDERING  THE  RESULTS OF A CLINICAL
COMPETENCY EXAMINATION PURSUANT TO PARAGRAPH  (C)  OF  THIS  SUBDIVISION
DETERMINES THAT THE LICENSEE IS INCOMPETENT AND THAT THERE IS NO PRACTI-
CAL  REMEDIATION  FOR  SUCH  INCOMPETENCE,  IT MAY REFER THE CASE TO THE
DIRECTOR OF THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT  FOR  THE  DIREC-
TOR'S  CONSIDERATION OF WHETHER TO PRESENT TO AN INVESTIGATION COMMITTEE
PURSUANT TO SUBPARAGRAPH (IV) OF PARAGRAPH (A)  OF  SUBDIVISION  TEN  OF

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09282-04-3

A. 7102--A                          2

THIS SECTION FOR ITS CONCURRENCE ON CHARGES PURSUANT TO PARAGRAPH (B) OF
SUBDIVISION  FIVE  OF SECTION SIXTY-FIVE HUNDRED THIRTY OF THE EDUCATION
LAW.
  S  2.  Subdivision 5 of section 6530 of the education law, as added by
chapter 606 of the laws of 1991, is amended to read as follows:
  5. (A) Practicing the profession with incompetence on  more  than  one
occasion; OR
  (B) BEING FOUND TO BE INCOMPETENT BY AN EXAMINATION WHICH HAS OCCURRED
PURSUANT  TO  PARAGRAPH  (C) OF SUBDIVISION SEVEN OF SECTION TWO HUNDRED
THIRTY OF THE PUBLIC HEALTH LAW WHEN  THE  RESULTS  OF  THE  EXAMINATION
DEMONSTRATE  THAT THERE ARE NO REASONABLE CONDITIONS OR LIMITATIONS THAT
COULD BE IMPOSED UPON THE LICENSEE THAT WOULD SUFFICIENTLY MITIGATE SUCH
INCOMPETENCE.
  S 3. Subdivision 15 of section 6530 of the education law, as added  by
chapter 606 of the laws of 1991, is amended to read as follows:
  15. (A) Failure to comply with an order issued pursuant to subdivision
seven,  paragraph  (a)  of subdivision ten, and subdivision seventeen of
section two hundred thirty of the public health law; OR
  (B) FAILURE TO COMPLY WITH REMEDIATION RECOMMENDATIONS ARISING FROM AN
EXAMINATION WHEN AN EXAMINATION HAS OCCURRED PURSUANT TO  PARAGRAPH  (C)
OF  SUBDIVISION SEVEN OF SECTION TWO HUNDRED THIRTY OF THE PUBLIC HEALTH
LAW, WHEN SUCH COMPLIANCE HAS BEEN ORDERED BY  A  COMMITTEE  ON  PROFES-
SIONAL CONDUCT PURSUANT TO PARAGRAPH (D) OF SUBDIVISION SEVEN OF SECTION
TWO HUNDRED THIRTY OF THE PUBLIC HEALTH LAW.
  S  4.  Subparagraph  (i) of paragraph (d) of subdivision 10 of section
230 of the public health law, as amended by chapter 477 of the  laws  of
2008, is amended to read as follows:
  (i)  A  copy  of  the  charges  and the notice of the hearing shall be
served BY THE BOARD on the licensee EITHER (A) personally [by the board]
at least thirty 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];  OR  (B)  by
registered  or  certified  mail  to  the licensee's [last known] CURRENT
RESIDENTIAL  OR  PRACTICE  address  [by  the  board];  MAILED  at  least
[fifteen] THIRTY days before the hearing; OR (C) BY REGISTERED OR CERTI-
FIED  MAIL  TO  THE  LICENSEE'S CURRENT REGISTRATION ADDRESS PURSUANT TO
SECTION SIXTY-FIVE HUNDRED TWO OF THE EDUCATION LAW  OR  THE  LICENSEE'S
MOST  RECENT  MAILING  ADDRESS ON FILE WITH THE NEW YORK STATE EDUCATION
DEPARTMENT PURSUANT TO THE NOTIFICATION REQUIREMENT SET FORTH IN  SUBDI-
VISION  FIVE OF SUCH SECTION, MAILED AT LEAST FORTY-FIVE DAYS BEFORE THE
HEARING; OR (D) BY FIRST CLASS MAIL TO AN ATTORNEY, LICENSED TO PRACTICE
IN THE STATE OF NEW YORK, WHO HAS APPEARED ON BEHALF OF THE LICENSEE  IN
THE  MATTER  BEFORE THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT MAILED AT
LEAST THIRTY DAYS BEFORE THE HEARING.  IN THE EVENT A COPY OF THE CHARG-
ES ARE SERVED THROUGH EITHER CLAUSES (A), (B), OR (C) OF  THIS  SUBPARA-
GRAPH,  THEN  THE BOARD SHALL ALSO SERVE THE ATTORNEY, LICENSED TO PRAC-
TICE IN THE STATE OF NEW YORK, WHO HAS REQUESTED IN WRITING  SERVICE  ON
BEHALF  OF  THE LICENSEE IN THE MATTER BEFORE THE OFFICE OF PROFESSIONAL
MEDICAL CONDUCT AT LEAST THIRTY DAYS BEFORE THE HEARING.
  S 5. Paragraph (q) of subdivision 10 of  section  230  of  the  public
health  law,  as added by chapter 477 of the laws of 2008, is amended to
read as follows:
  (q) [At any time subsequent] SUBSEQUENT to the final conclusion  of  a
professional  misconduct proceeding against a licensee, whether upon the
determination and order of a hearing committee issued pursuant to  para-
graph (h) of this subdivision or upon the determination and order of the

A. 7102--A                          3

administrative review board issued pursuant to paragraph (d) of subdivi-
sion  four  of  section two hundred thirty-c of this title, the licensee
may file a petition with the director, requesting vacatur  or  modifica-
tion of the determination and order.  IF THE DETERMINATION AND ORDER DID
NOT INCLUDE THE PENALTY OF LICENSE REVOCATION, THE PETITION MAY BE FILED
AT  ANY  TIME.  IF  THE  DETERMINATION  AND ORDER INCLUDED A SANCTION OF
LICENSE REVOCATION, THE PETITION MAY BE FILED AT ANY TIME PRIOR TO  SUCH
TIME  AS  THE  LICENSEE  IS  AUTHORIZED,  PURSUANT TO SECTION SIXTY-FIVE
HUNDRED ELEVEN OF THE EDUCATION LAW, THE RULES OF THE BOARD  OF  REGENTS
AND  THE  REGULATIONS  OF THE COMMISSIONER OF EDUCATION TO SEEK BOARD OF
REGENTS RESTORATION OF THE REVOKED LICENSE. The  director  shall,  after
reviewing  the  matter  and  after  consulting  with department counsel,
determine in the reasonable exercise of his or  her  discretion  whether
there  is  new  and  material evidence that was not previously available
which, had it been available, would  likely  have  led  to  a  different
result,  or  whether  circumstances  have  occurred  subsequent  to  the
original determination that warrant a reconsideration of the measure  of
discipline.  Upon determining that such evidence or circumstances exist,
the director shall have the authority to join the licensee in an  appli-
cation  to  the  chairperson of the state board for professional medical
conduct to vacate or modify the determination and order, as the director
may deem appropriate. Upon the joint application of the licensee and the
director, the chairperson shall have the authority to grant or deny such
application.
  S 6. Section 6511 of the education law, as amended by chapter  542  of
the laws of 2000, is amended to read as follows:
  S 6511. Penalties for professional misconduct. The penalties which may
be imposed by the board of regents on a present or former licensee found
guilty of professional misconduct (under the definitions and proceedings
prescribed  in  sections  sixty-five hundred nine and sixty-five hundred
ten of this [article] SUBPART)  are:  (1)  censure  and  reprimand,  (2)
suspension  of  license,  (a)  wholly,  for  a fixed period of time; (b)
partially,  until  the  licensee  successfully  completes  a  course  of
retraining  in  the  area  to  which the suspension applies; (c) wholly,
until the licensee successfully completes a course of therapy or  treat-
ment prescribed by the regents; (3) revocation of license, (4) annulment
of  license  or registration, (5) limitation on registration or issuance
of any further license, (6) a fine not to exceed ten  thousand  dollars,
upon each specification of charges of which the respondent is determined
to  be  guilty,  (7)  a  requirement  that a licensee pursue a course of
education or training, and (8) a requirement that a licensee perform  up
to  one  hundred  hours of public service, in a manner and at a time and
place as directed by the board. The  board  of  regents  may  stay  such
penalties  in  whole or in part, may place the licensee on probation and
may restore a license which has been revoked, provided, in the  case  of
licensees  subject  to  section  two hundred thirty of the public health
law, notice that the board is considering such restoration is  given  to
the  office  of professional medical conduct at least thirty days before
the date on which such restoration shall be considered. Upon the  recom-
mendation  of  the  office of professional medical conduct, the board of
regents may deny such restoration.  IN THE EVENT THAT  THE  BOARD,  WHEN
CONSIDERING  SUCH  RESTORATION,  ELECTS  TO ACT IN A MANNER INCONSISTENT
WITH ANY RECOMMENDATION OF THE OFFICE OF PROFESSIONAL  MEDICAL  CONDUCT,
THE  BOARD  SHALL  INCLUDE  AN EXPLICIT JUSTIFICATION FOR DEPARTING FROM
SUCH RECOMMENDATION IN  ITS  WRITTEN  DETERMINATION.  Any  fine  imposed
pursuant  to  this  section  or  pursuant  to subdivision two of section

A. 7102--A                          4

sixty-five hundred ten of this [article] SUBPART may  be  sued  for  and
recovered  in  the  name  of  the  people of the state of New York in an
action brought by the attorney general. In such action the findings  and
determination  of  the  board  of regents or of the violations committee
shall be admissible evidence  and  shall  be  conclusive  proof  of  the
violation and the penalty assessed.
  S  7.  Subdivision  3  of  section 2995-a of the public health law, as
added by chapter 542 of the laws of 2000, is amended to read as follows:
  3. Each physician who is self-insured for professional  medical  malp-
ractice  shall periodically report to the department on forms and in the
time and manner required by the commissioner the  information  specified
in  paragraph  [(f)] (E) of subdivision one of this section, except that
the physician shall report the dollar  amount  (to  the  extent  of  the
physician's information and belief) for each judgment, award and settle-
ment and not a level of significance or context.
  S  8. Subdivision 27 of section 6530 of the education law, as added by
chapter 606 of the laws of 1991, is amended to read as follows:
  27. Advertising or soliciting for patronage that is not in the  public
interest. (a) Advertising or soliciting not in the public interest shall
include,  but  not be limited to, advertising or soliciting that: (i) is
false, fraudulent, deceptive, OR misleading[, sensational,  or  flamboy-
ant];
  (ii) represents intimidation or undue pressure;
  (iii) [uses testimonials;
  (iv)] guarantees any service;
  [(v)]  (IV)  makes  any  claim  relating  to  professional services or
products or the costs or price therefor which cannot be substantiated by
the licensee, who shall have the burden of proof;
  [(vi)] (V) makes claims of professional superiority  which  cannot  be
substantiated by the licensee, who shall have the burden of proof; or
  [(vii)]  (VI)  offers  bonuses or inducements in any form other than a
discount or reduction in an established fee or price for a  professional
service or product.
  (b)  The  following shall be deemed appropriate means of informing the
public of the availability of professional services:  (i)  informational
advertising not contrary to the foregoing prohibitions; and
  (ii) the advertising in a newspaper, periodical or professional direc-
tory or on radio [or], television, OR THE INTERNET of fixed prices, or a
stated  range  of  prices,  for specified routine professional services,
provided that if there is an  additional  charge  for  related  services
which  are an integral part of the overall service being provided by the
licensee, the advertisement shall so state, and  provided  further  that
the  advertisement indicates the period of time for which the advertised
prices shall be in effect.
  (c)(i) All licensees placing advertisements shall maintain,  or  cause
to  be maintained, an exact copy of each advertisement, transcript, tape
or video tape thereof as appropriate for the medium used, for  a  period
of  one  year  after its last appearance. This copy shall be made avail-
able for inspection upon demand of the department of health;
  (ii) A licensee shall not compensate or give anything of value to rep-
resentatives of the press, radio,  television  or  other  communications
media  in  anticipation  of or in return for professional publicity in a
news item[;].
  (d) [No demonstrations, dramatizations or other portrayals of  profes-
sional  practice  shall  be  permitted  in advertising on radio or tele-
vision;] TESTIMONIALS, DEMONSTRATIONS, DRAMATIZATIONS, OR OTHER PORTRAY-

A. 7102--A                          5

ALS OF PROFESSIONAL PRACTICE ARE PERMITTED PROVIDED THAT THEY  OTHERWISE
COMPLY  WITH  THE  LAWS  OF  PROFESSIONAL  MEDICAL  CONDUCT  AND FURTHER
PROVIDED THAT THE FOLLOWING CONDITIONS ARE SATISFIED:
  (I) THE PATIENT EXPRESSLY AUTHORIZES THE PORTRAYAL IN WRITING;
  (II)  THE APPROPRIATE DISCLOSURE IS INCLUDED TO PREVENT ANY MISLEADING
INFORMATION OR IMAGERY AS TO THE IDENTITY OF THE PATIENT;
  (III) REASONABLE DISCLAIMERS ARE INCLUDED AS TO ANY STATEMENTS MADE OR
RESULTS ACHIEVED IN A PARTICULAR MATTER;
  (IV) THE USE OF FICTIONAL SITUATIONS OR CHARACTERS MAY BE USED  IF  NO
TESTIMONIALS ARE INCLUDED; AND
  (V) FICTIONAL PATIENT TESTIMONIALS ARE NOT PERMITTED.
  S  9.  Subdivision  2  of  section  12-b  of the public health law, as
amended by section 17 of part A of chapter 58 of the laws  of  2008,  is
amended to read as follows:
  2.  A  person  who wilfully violates any provision of this chapter, or
any regulation lawfully made or established by  any  public  officer  or
board under authority of this chapter, OR ANY LAWFUL ORDER PRESCRIBED BY
THE  COMMISSIONER  OF  HEALTH, the punishment for violating which is not
otherwise prescribed by this chapter or any other law, is punishable  by
imprisonment  not  exceeding  one  year,  or by a fine not exceeding ten
thousand dollars or by both. Effective on and  after  April  first,  two
thousand  eight  the  comptroller  is  hereby authorized and directed to
deposit  amounts  collected  in  excess  of  two  thousand  dollars  per
violation  to  the patient safety center account to be used for purposes
of the patient safety center created by title  two  of  article  twenty-
nine-D of this chapter.
  S  10.  Section 32 of part A of chapter 58 of the laws of 2008, amend-
ing the elder law and other laws relating to reimbursement to particular
provider pharmacies  and  prescription  drug  coverage,  as  amended  by
section  26  of  part A of chapter 59 of the laws of 2011, is amended to
read as follows:
  S 32. This act shall take effect immediately and shall  be  deemed  to
have  been in full force and effect on and after April 1, 2008; provided
however, that sections one, six-a, nineteen,  twenty,  twenty-four,  and
twenty-five of this act shall take effect July 1, 2008; provided however
that sections sixteen[, seventeen] and eighteen of this act shall expire
April  1,  2014;  provided, however, that the amendments made by section
twenty-eight of this act shall take effect on the same date as section 1
of chapter 281 of the laws of 2007 takes effect; provided further,  that
sections  twenty-nine,  thirty,  and  thirty-one  of this act shall take
effect October 1, 2008; provided further, that section  twenty-seven  of
this  act  shall take effect January 1, 2009; and provided further, that
section twenty-seven of this act shall expire  and  be  deemed  repealed
March  31,  2014; and provided, further, however, that the amendments to
subdivision 1 of section 241 of the education law made by section  twen-
ty-nine  of this act shall not affect the expiration of such subdivision
and shall be deemed to expire therewith and provided that the amendments
to section 272 of the public health law made by section thirty  of  this
act  shall  not  affect  the  repeal of such section and shall be deemed
repealed therewith.
  S 11. This act shall take effect immediately; provided  that  sections
one, two, three, four, five, six and eight of this act shall take effect
on the sixtieth day after this act shall have become a law.

2013-A7102B (ACTIVE) - Details

See Senate Version of this Bill:: S4527
Current Committee:: Assembly Health
Law Section:: Public Health Law
Laws Affected:: Amd §§230 & 2995-a, Pub Health L; amd §§6530 & 6511, Ed L; amd Part A §32, Chap 58 of 2008

2013-A7102B (ACTIVE) - Summary

Relates to competency exams, service of charges, petitions to modify or vacate orders, profiling requirements and modifying physician and advertising and testimony standards.

2013-A7102B (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 7102--B

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               May 1, 2013
                               ___________

Introduced  by  M.  of  A. GOTTFRIED -- (at request of the Department of
  Health) -- read once and  referred  to  the  Committee  on  Health  --
  reported   and  referred  to  the  Committee  on  Codes  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee -- again reported from said  committee  with  amend-
  ments, ordered reprinted as amended and recommitted to said committee

AN ACT to amend the public health law and the education law, in relation
  to  enforcing  compliance  with clinical competency exams, simplifying
  service of charges, limiting petitions to  modify  or  vacate  orders,
  profiling requirements of self-insured physicians, modifying physician
  and  advertising and testimonial standards; to amend the public health
  law, in relation to expanding the applicability of penalties for will-
  ful violations of the commissioner of health's orders;  and  to  amend
  chapter  58 of the laws of 2008, amending the elder law and other laws
  relating  to  reimbursement  to  particular  provider  pharmacies  and
  prescription  drug  coverage,  in  relation  to  the  effectiveness of
  certain provisions thereof

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision  7 of section 230 of the public health law is
amended by adding a new paragraph (d) to read as follows:
  (D) (I) A COMMITTEE ON PROFESSIONAL CONDUCT, ON NOTICE TO THE LICENSEE
AND AFTER AFFORDING THE LICENSEE AND THE OFFICE OF PROFESSIONAL  MEDICAL
CONDUCT  AN  OPPORTUNITY  TO BE HEARD, SHALL HAVE THE AUTHORITY TO ORDER
THE LICENSEE TO COMPLY WITH RECOMMENDED  REMEDIATION  ARISING  FROM  THE
EXAMINATIONS  IN  PARAGRAPH (C) OF THIS SUBDIVISION. (II) IF A COMMITTEE
ON PROFESSIONAL CONDUCT WHEN  CONSIDERING  THE  RESULTS  OF  A  CLINICAL
COMPETENCY  EXAMINATION  PURSUANT  TO  PARAGRAPH (C) OF THIS SUBDIVISION
DETERMINES THAT THE LICENSEE IS INCOMPETENT AND THAT THERE IS NO PRACTI-
CAL REMEDIATION FOR SUCH INCOMPETENCE, IT MAY  REFER  THE  CASE  TO  THE
DIRECTOR  OF  THE  OFFICE OF PROFESSIONAL MEDICAL CONDUCT FOR THE DIREC-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09282-06-3

A. 7102--B                          2

TOR'S CONSIDERATION OF WHETHER TO PRESENT TO AN INVESTIGATION  COMMITTEE
PURSUANT  TO  SUBPARAGRAPH  (IV)  OF PARAGRAPH (A) OF SUBDIVISION TEN OF
THIS SECTION FOR ITS CONCURRENCE ON CHARGES PURSUANT TO PARAGRAPH (B) OF
SUBDIVISION  FIVE  OF SECTION SIXTY-FIVE HUNDRED THIRTY OF THE EDUCATION
LAW.
  S 2. Subdivision 5 of section 6530 of the education law, as  added  by
chapter 606 of the laws of 1991, is amended to read as follows:
  5.  (A)  Practicing  the profession with incompetence on more than one
occasion; OR
  (B) BEING FOUND TO BE INCOMPETENT BY AN EXAMINATION WHICH HAS OCCURRED
PURSUANT TO PARAGRAPH (C) OF SUBDIVISION SEVEN OF  SECTION  TWO  HUNDRED
THIRTY  OF  THE  PUBLIC  HEALTH  LAW WHEN THE RESULTS OF THE EXAMINATION
DEMONSTRATE THAT THERE ARE NO REASONABLE CONDITIONS OR LIMITATIONS  THAT
COULD BE IMPOSED UPON THE LICENSEE THAT WOULD SUFFICIENTLY MITIGATE SUCH
INCOMPETENCE.
  S  3. Subdivision 15 of section 6530 of the education law, as added by
chapter 606 of the laws of 1991, is amended to read as follows:
  15. (A) Failure to comply with an order issued pursuant to subdivision
seven, paragraph (a) of subdivision ten, and  subdivision  seventeen  of
section two hundred thirty of the public health law; OR
  (B) FAILURE TO COMPLY WITH REMEDIATION RECOMMENDATIONS ARISING FROM AN
EXAMINATION  WHEN  AN EXAMINATION HAS OCCURRED PURSUANT TO PARAGRAPH (C)
OF SUBDIVISION SEVEN OF SECTION TWO HUNDRED THIRTY OF THE PUBLIC  HEALTH
LAW,  WHEN  SUCH  COMPLIANCE  HAS BEEN ORDERED BY A COMMITTEE ON PROFES-
SIONAL CONDUCT PURSUANT TO PARAGRAPH (D) OF SUBDIVISION SEVEN OF SECTION
TWO HUNDRED THIRTY OF THE PUBLIC HEALTH LAW.
  S 4. Subparagraph (i) of paragraph (d) of subdivision  10  of  section
230  of  the public health law, as amended by chapter 477 of the laws of
2008, is amended to read as follows:
  (i) A copy of the charges and the  notice  of  the  hearing  shall  be
served BY THE BOARD on the licensee EITHER (A) personally [by the board]
at  least thirty 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]; OR (B) by
registered or certified mail to  the  licensee's  [last  known]  CURRENT
RESIDENTIAL  OR  PRACTICE  address  [by  the  board];  MAILED  at  least
[fifteen] THIRTY days before the hearing; OR (C) BY REGISTERED OR CERTI-
FIED MAIL TO THE LICENSEE'S CURRENT  REGISTRATION  ADDRESS  PURSUANT  TO
SECTION  SIXTY-FIVE  HUNDRED  TWO OF THE EDUCATION LAW OR THE LICENSEE'S
MOST RECENT MAILING ADDRESS ON FILE WITH THE NEW  YORK  STATE  EDUCATION
DEPARTMENT  PURSUANT TO THE NOTIFICATION REQUIREMENT SET FORTH IN SUBDI-
VISION FIVE OF SUCH SECTION, MAILED AT LEAST FORTY-FIVE DAYS BEFORE  THE
HEARING; OR (D) BY FIRST CLASS MAIL TO AN ATTORNEY, LICENSED TO PRACTICE
IN  THE STATE OF NEW YORK, WHO HAS APPEARED ON BEHALF OF THE LICENSEE IN
THE MATTER BEFORE THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT  MAILED  AT
LEAST THIRTY DAYS BEFORE THE HEARING.  IN THE EVENT A COPY OF THE CHARG-
ES  ARE  SERVED THROUGH EITHER CLAUSES (A), (B), OR (C) OF THIS SUBPARA-
GRAPH, THEN THE BOARD SHALL ALSO SERVE THE ATTORNEY, LICENSED  TO  PRAC-
TICE  IN  THE STATE OF NEW YORK, WHO HAS REQUESTED IN WRITING SERVICE ON
BEHALF OF THE LICENSEE IN THE MATTER BEFORE THE OFFICE  OF  PROFESSIONAL
MEDICAL CONDUCT AT LEAST THIRTY DAYS BEFORE THE HEARING.
  S  5.  Paragraph  (q)  of  subdivision 10 of section 230 of the public
health law, as added by chapter 477 of the laws of 2008, is  amended  to
read as follows:
  (q)  [At  any time subsequent] SUBSEQUENT to the final conclusion of a
professional misconduct proceeding against a licensee, whether upon  the

A. 7102--B                          3

determination  and order of a hearing committee issued pursuant to para-
graph (h) of this subdivision or upon the determination and order of the
administrative review board issued pursuant to paragraph (d) of subdivi-
sion  four  of  section two hundred thirty-c of this title, the licensee
may file a petition with the director, requesting vacatur  or  modifica-
tion of the determination and order.  IF THE DETERMINATION AND ORDER DID
NOT INCLUDE THE PENALTY OF LICENSE REVOCATION, THE PETITION MAY BE FILED
AT  ANY  TIME.  IF  THE  DETERMINATION  AND ORDER INCLUDED A SANCTION OF
LICENSE REVOCATION, THE PETITION MAY BE FILED AT ANY TIME PRIOR TO  SUCH
TIME  AS  THE  LICENSEE  IS  AUTHORIZED,  PURSUANT TO SECTION SIXTY-FIVE
HUNDRED ELEVEN OF THE EDUCATION LAW, THE RULES OF THE BOARD  OF  REGENTS
AND  THE  REGULATIONS  OF THE COMMISSIONER OF EDUCATION TO SEEK BOARD OF
REGENTS RESTORATION OF THE REVOKED LICENSE. The  director  shall,  after
reviewing  the  matter  and  after  consulting  with department counsel,
determine in the reasonable exercise of his or  her  discretion  whether
there  is  new  and  material evidence that was not previously available
which, had it been available, would  likely  have  led  to  a  different
result,  or  whether  circumstances  have  occurred  subsequent  to  the
original determination that warrant a reconsideration of the measure  of
discipline.  Upon determining that such evidence or circumstances exist,
the director shall have the authority to join the licensee in an  appli-
cation  to  the  chairperson of the state board for professional medical
conduct to vacate or modify the determination and order, as the director
may deem appropriate. Upon the joint application of the licensee and the
director, the chairperson shall have the authority to grant or deny such
application.
  S 6. Section 6511 of the education law, as amended by chapter  542  of
the laws of 2000, is amended to read as follows:
  S 6511. Penalties for professional misconduct. The penalties which may
be imposed by the board of regents on a present or former licensee found
guilty of professional misconduct (under the definitions and proceedings
prescribed  in  sections  sixty-five hundred nine and sixty-five hundred
ten of this [article] SUBPART)  are:  (1)  censure  and  reprimand,  (2)
suspension  of  license,  (a)  wholly,  for  a fixed period of time; (b)
partially,  until  the  licensee  successfully  completes  a  course  of
retraining  in  the  area  to  which the suspension applies; (c) wholly,
until the licensee successfully completes a course of therapy or  treat-
ment prescribed by the regents; (3) revocation of license, (4) annulment
of  license  or registration, (5) limitation on registration or issuance
of any further license, (6) a fine not to exceed ten  thousand  dollars,
upon each specification of charges of which the respondent is determined
to  be  guilty,  (7)  a  requirement  that a licensee pursue a course of
education or training, and (8) a requirement that a licensee perform  up
to  one  hundred  hours of public service, in a manner and at a time and
place as directed by the board. The  board  of  regents  may  stay  such
penalties  in  whole or in part, may place the licensee on probation and
may restore a license which has been revoked, provided, in the  case  of
licensees  subject  to  section  two hundred thirty of the public health
law, notice that the board is considering such restoration is  given  to
the  office  of professional medical conduct at least thirty days before
the date on which such restoration shall be considered. Upon the  recom-
mendation  of  the  office of professional medical conduct, the board of
regents may deny such restoration.  IN THE EVENT THAT  THE  BOARD,  WHEN
CONSIDERING  SUCH  RESTORATION,  ELECTS  TO ACT IN A MANNER INCONSISTENT
WITH ANY RECOMMENDATION OF THE OFFICE OF PROFESSIONAL  MEDICAL  CONDUCT,
THE  BOARD  SHALL  INCLUDE  AN EXPLICIT JUSTIFICATION FOR DEPARTING FROM

A. 7102--B                          4

SUCH RECOMMENDATION IN  ITS  WRITTEN  DETERMINATION.  Any  fine  imposed
pursuant  to  this  section  or  pursuant  to subdivision two of section
sixty-five hundred ten of this [article] SUBPART may  be  sued  for  and
recovered  in  the  name  of  the  people of the state of New York in an
action brought by the attorney general. In such action the findings  and
determination  of  the  board  of regents or of the violations committee
shall be admissible evidence  and  shall  be  conclusive  proof  of  the
violation and the penalty assessed.
  S  7.  Subdivision  3  of  section 2995-a of the public health law, as
added by chapter 542 of the laws of 2000, is amended to read as follows:
  3. Each physician who is self-insured for professional  medical  malp-
ractice  shall periodically report to the department on forms and in the
time and manner required by the commissioner the  information  specified
in  paragraph  [(f)] (E) of subdivision one of this section, except that
the physician shall report the dollar  amount  (to  the  extent  of  the
physician's information and belief) for each judgment, award and settle-
ment and not a level of significance or context.
  S  8. Subdivision 27 of section 6530 of the education law, as added by
chapter 606 of the laws of 1991, is amended to read as follows:
  27. Advertising or soliciting for patronage that is not in the  public
interest. (a) Advertising or soliciting not in the public interest shall
include,  but  not be limited to, advertising or soliciting that: (i) is
false, fraudulent, deceptive, OR misleading[, sensational,  or  flamboy-
ant];
  (ii) represents intimidation or undue pressure;
  (iii) [uses testimonials;
  (iv)] guarantees any service;
  [(v)]  (IV)  makes  any  claim  relating  to  professional services or
products or the costs or price therefor which cannot be substantiated by
the licensee, who shall have the burden of proof;
  [(vi)] (V) makes claims of professional superiority  which  cannot  be
substantiated by the licensee, who shall have the burden of proof; or
  [(vii)]  (VI)  offers  bonuses or inducements in any form other than a
discount or reduction in an established fee or price for a  professional
service or product.
  (b)  The  following shall be deemed appropriate means of informing the
public of the availability of professional services:  (i)  informational
advertising not contrary to the foregoing prohibitions; and
  (ii) the advertising in a newspaper, periodical or professional direc-
tory or on radio [or], television, OR THE INTERNET of fixed prices, or a
stated  range  of  prices,  for specified routine professional services,
provided that if there is an  additional  charge  for  related  services
which  are an integral part of the overall service being provided by the
licensee, the advertisement shall so state, and  provided  further  that
the  advertisement indicates the period of time for which the advertised
prices shall be in effect.
  (c)(i) All licensees placing advertisements shall maintain,  or  cause
to  be maintained, an exact copy of each advertisement, transcript, tape
or video tape thereof as appropriate for the medium used, for  a  period
of  one  year  after its last appearance. This copy shall be made avail-
able for inspection upon demand of the department of health;
  (ii) A licensee shall not compensate or give anything of value to rep-
resentatives of the press, radio,  television  or  other  communications
media  in  anticipation  of or in return for professional publicity in a
news item[;].

A. 7102--B                          5

  (d) [No demonstrations, dramatizations or other portrayals of  profes-
sional  practice  shall  be  permitted  in advertising on radio or tele-
vision;] TESTIMONIALS, DEMONSTRATIONS, DRAMATIZATIONS, OR OTHER PORTRAY-
ALS OF PROFESSIONAL PRACTICE ARE PERMITTED PROVIDED THAT THEY  OTHERWISE
COMPLY  WITH  THE  LAWS  OF  PROFESSIONAL  MEDICAL  CONDUCT  AND FURTHER
PROVIDED THAT THE FOLLOWING CONDITIONS ARE SATISFIED:
  (I) THE PATIENT EXPRESSLY AUTHORIZES THE PORTRAYAL IN WRITING;
  (II) THE APPROPRIATE DISCLOSURE IS INCLUDED TO PREVENT ANY  MISLEADING
INFORMATION OR IMAGERY AS TO THE IDENTITY OF THE PATIENT;
  (III) REASONABLE DISCLAIMERS ARE INCLUDED AS TO ANY STATEMENTS MADE OR
RESULTS ACHIEVED IN A PARTICULAR MATTER;
  (IV)  THE  USE OF FICTIONAL SITUATIONS OR CHARACTERS MAY BE USED IF NO
TESTIMONIALS ARE INCLUDED; AND
  (V) FICTIONAL PATIENT TESTIMONIALS ARE NOT PERMITTED.
  S 9.  Section 32 of part A of chapter 58 of the laws of 2008, amending
the elder law and other laws relating  to  reimbursement  to  particular
provider  pharmacies  and  prescription  drug  coverage,  as  amended by
section 26 of part A of chapter 59 of the laws of 2011,  is  amended  to
read as follows:
  S  32.  This  act shall take effect immediately and shall be deemed to
have been in full force and effect on and after April 1, 2008;  provided
however,  that  sections  one, six-a, nineteen, twenty, twenty-four, and
twenty-five of this act shall take effect July 1, 2008; provided however
that sections sixteen[, seventeen] and eighteen of this act shall expire
April 1, 2014; provided, however, that the amendments  made  by  section
twenty-eight of this act shall take effect on the same date as section 1
of  chapter 281 of the laws of 2007 takes effect; provided further, that
sections twenty-nine, thirty, and thirty-one  of  this  act  shall  take
effect  October  1, 2008; provided further, that section twenty-seven of
this act shall take effect January 1, 2009; and provided  further,  that
section  twenty-seven  of  this  act shall expire and be deemed repealed
March 31, 2014; and provided, further, however, that the  amendments  to
subdivision  1 of section 241 of the education law made by section twen-
ty-nine of this act shall not affect the expiration of such  subdivision
and shall be deemed to expire therewith and provided that the amendments
to  section  272 of the public health law made by section thirty of this
act shall not affect the repeal of such  section  and  shall  be  deemed
repealed therewith.
  S  10.  This act shall take effect immediately; provided that sections
one, two, three, four, five, six and eight of this act shall take effect
on the sixtieth day after this act shall have become a law.

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Assembly Bill A7102B

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Archive: Last Bill Status - In Assembly Committee

Bill Amendments

2013-A7102 - Details

2013-A7102 - Summary

2013-A7102 - Bill Text download pdf

2013-A7102A - Details

2013-A7102A - Summary

2013-A7102A - Bill Text download pdf

2013-A7102B (ACTIVE) - Details

2013-A7102B (ACTIVE) - Summary

2013-A7102B (ACTIVE) - Bill Text download pdf

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