S T A T E O F N E W Y O R K
________________________________________________________________________
5663
2009-2010 Regular Sessions
I N A S S E M B L Y
February 17, 2009
___________
Introduced by M. of A. EDDINGTON, HYER-SPENCER -- Multi-Sponsored by --
M. of A. GABRYSZAK, KOON, SWEENEY -- read once and referred to the
Committee on Health
AN ACT to amend the public health law, in relation to proceedings
conducted by the office of professional medical conduct and to amend
chapter 426 of the laws of 1983, amending the public health law relat-
ing to professional misconduct proceedings, in relation to the effec-
tiveness of certain provisions thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraphs (a), (f), (g), subparagraph (i) of paragraph (h)
and paragraph (m) of subdivision 10 of section 230 of the public health
law, paragraphs (a) and (m) as amended by chapter 606 of the laws of
1991, subparagraph (i) of paragraph (a) as amended by chapter 542 of the
laws of 2000, subparagraph (ii) of paragraph (a) as amended by chapter
558 of the laws of 1994, subparagraphs (iii), (iv) and (v) of paragraph
(a), paragraph (g), subparagraph (i) of paragraph (h) as amended and
subparagraph (vii) of paragraph (a) as added by chapter 477 of the laws
of 2008, subparagraph (vi) of paragraph (a) as added by chapter 610 of
the laws of 1999 and paragraph (f) as amended by chapter 37 of the laws
of 1992, are amended to read as follows:
(a) Investigation. (i) The board for professional medical conduct, by
the director of the office of professional medical conduct, may investi-
gate on its own any suspected professional misconduct, and shall inves-
tigate each complaint received regardless of the source. The director of
the office of professional medical conduct shall cause a preliminary
review of every report made to the department pursuant to section twen-
ty-eight hundred three-e OF THIS CHAPTER as added by chapter eight
hundred sixty-six of the laws of nineteen hundred eighty, sections twen-
ty-eight hundred five-l and forty-four hundred five-b of this chapter,
and section three hundred fifteen of the insurance law, to determine if
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07791-01-9
A. 5663 2
such report reasonably appears to reflect physician conduct warranting
further investigation pursuant to this subparagraph. THE DIRECTOR SHALL
PREPARE A WRITTEN FINDING FOR EVERY COMPLAINT RECEIVED AND SHALL SEND A
COPY TO THE LICENSEE AND THE COMPLAINANT.
(ii) If the investigation of cases referred to an investigation
committee involves issues of clinical practice, medical experts[,] shall
be consulted. Experts may be made available by the state medical society
of the state of New York, by county medical societies and specialty
societies, and by New York state medical associations dedicated to the
advancement of non-conventional medical treatments. [Any information
obtained by medical experts in consultations, including the names of
licensees or patients, shall be confidential and shall not be disclosed
except as otherwise authorized or required by law.]
(iii) In the investigation of cases referred to an investigation
committee, the licensee being investigated shall have an opportunity to
be interviewed by the office of professional medical conduct in order to
provide an explanation of the issues under investigation. Providing an
opportunity for such an interview shall be a condition precedent to the
convening of an investigation committee on professional misconduct of
the board for professional medical conduct.
(A) At least twenty days before the interview, except as otherwise set
forth herein, the licensee under investigation shall be given written
notice of: (1) a description of the conduct that is the subject of the
investigation; (2) the issues relating to the conduct that have been
identified at the time of the notice; (3) the time frame of the conduct
under investigation; (4) the identity of each patient whose contact with
or care by the licensee is believed to be relevant to the investigation;
and (5) the fact that the licensee may be represented by counsel and may
be accompanied by a stenographer to transcribe the proceeding. All costs
of transcription shall be paid by the licensee and a copy shall be
provided to the department by the licensee within thirty days of the
interview. The notice required by this subparagraph may be given less
than twenty days before an interview in any case where the office of
professional medical conduct anticipates that the commissioner will take
summary action under subdivision twelve of this section, provided that
the notice is given within a reasonable amount of time prior to the
interview and advises of the possible summary action.
(B) Within thirty days following the interview or, in a case where a
stenographer was present at the interview, within fifteen days after the
office of professional medical conduct receives the transcript of the
interview, whichever is later, the licensee shall be provided with a
copy of the report of the interviewer. In addition, the licensee shall
promptly be given written notice of issues identified subsequent to the
interview. The licensee may submit written comments or expert opinion or
medical or scientific literature that is directly relevant to the issues
that have been identified by the office of professional medical conduct
to the office of professional medical conduct at any time.
(C) If the director determines that the matter shall be submitted to
an investigation committee, an investigation committee shall be convened
within ninety days of any interview of the licensee. The director shall
present the investigation committee with relevant documentation includ-
ing, but not limited to: (1) a copy of the original complaint; (2) the
report of the interviewer and the stenographic record if one was taken;
(3) the report of any medical or scientific expert; (4) copies of
reports of any patient record reviews; and (5) the licensee's
submissions.
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(D) If the director determines to close an investigation following an
interview without presentation to an investigation committee, the office
of professional medical conduct shall notify the licensee in writing.
(iv) If the director of the office of professional medical conduct,
after obtaining the concurrence of a majority of an investigation
committee, and after consultation with the executive secretary, deter-
mines that a hearing is warranted the director shall, within fifteen
days thereafter, direct counsel to prepare the charges. If the investi-
gation committee is unanimous in its concurrence that a hearing is
warranted, the charges shall be made public under paragraph (d) of this
subdivision. If the investigation committee is not unanimous in its
concurrence that a hearing is warranted, the members of such committee
shall vote on whether the charges should be made public, and if all of
the committee members vote in favor of publication, the charges shall be
made public under paragraph (d) of this subdivision. If the director
determines after consultation with an investigation committee that: (A)
evidence exists of a single incident of negligence or incompetence, a
pattern of inappropriate prescribing or medical practice, or impairment
by drugs, alcohol, physical or mental disability; (B) a recommendation
was made by a county medical society or the medical society of the state
of New York that warrants further review; or (C) the facts underlying a
verdict in a medical malpractice action warrant further review, the
director, in addition to the authority set forth in this section, shall
be authorized to conduct a comprehensive review of patient records of
the licensee and such office records of the licensee as are related to
said determination. The licensee shall cooperate with the investigation
and willful failure to cooperate in a substantial or material respect
may result in an enforcement proceeding pursuant to subparagraph (ii) of
paragraph (o) of this subdivision. If there is a question of alcoholism,
alcohol abuse, drug abuse or mental illness, the director may refer the
matter to a committee, as referred to in subparagraph (ii) of paragraph
(c) of subdivision eleven of this section.
(v) The files of the office of professional medical conduct relating
to the investigation of possible instances of professional misconduct
shall NOT be confidential and [not] SHALL BE subject to disclosure at
the request of any person[, except as provided by law in a pending
disciplinary action or proceeding. The provisions of this paragraph
shall not prevent the office from sharing information concerning inves-
tigations within the department and, pursuant to subpoena, with other
duly authorized public agencies responsible for professional regulation
or criminal prosecution. Nothing in this subparagraph shall affect the
duties of notification set forth in subdivision nine-a of this section
or prevent the publication of charges or of the findings, conclusions,
determinations, or order of a hearing committee pursuant to paragraphs
(d) or (g) of this subdivision. In addition, the commissioner may
disclose the information when, in his or her professional judgment,
disclosure of such information would avert or minimize a public health
threat. Any such disclosure shall not affect the confidentiality of
other information in the files of the office of professional medical
conduct related to the investigation].
(vi) The office of professional medical conduct, acting under this
section, may have access to the criminal history record of any licensee
governed by the provisions of this section maintained by the division of
criminal justice services pursuant to subdivision six of section eight
hundred thirty-seven of the executive law.
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(vii) The director of the office of professional medical conduct, in
consultation with the patient safety center, shall cause a review on a
continuous basis of medical malpractice claim and disposition informa-
tion reported to the commissioner under section three hundred fifteen of
the insurance law, for the purpose of identifying potential misconduct.
The office shall commence a misconduct investigation if potential
misconduct is identified as a result of such review, which shall be
based on criteria such as disposition frequency, disposition type
including judgment and settlement, disposition award amount, geographic
region, specialty, or other factors as appropriate in identifying poten-
tial misconduct.
(f) Conduct of hearing. All hearings must be commenced within sixty
days of the service of charges except that an adjournment of the initial
hearing date may be granted by the hearing committee upon request by
either party upon good cause shown. No adjournment shall exceed thirty
days. The evidence in support of the charges shall be presented by an
attorney. The licensee shall have the rights required to be stated in
the notice of hearing ([subparagraph] PARAGRAPH (c) of this subdivision)
and in section four hundred one of the state administrative procedure
act. The committee shall not be bound by the rules of evidence, but its
conclusion shall be based on a preponderance of the evidence. A hearing
which has been initiated shall not be discontinued because of the death
or incapacity to serve of one member of the hearing committee. In the
event of a member's death or incapacity to serve on the committee, a
member shall be appointed immediately by the chairperson of the board.
The member shall affirm in writing that he or she has read and consid-
ered evidence and transcripts of the prior proceedings. The last hearing
day must be held within one hundred twenty days of the first hearing
day. Either party, for good cause shown, may request that the committee
extend the last hearing day beyond one hundred twenty days PROVIDED,
HOWEVER, THAT NO HEARING SHALL BE EXTENDED BEYOND ONE YEAR. An extension
requested by the licensee and granted by the committee may not be used
as the grounds for a proceeding brought under paragraph (j) of this
subdivision.
(g) Results of hearing. The committee shall make (1) findings of fact,
(2) conclusions concerning the charges sustained or dismissed, and (3) a
determination regarding charges sustained or dismissed, and in the event
any of the charges have been sustained, of the penalty to be imposed or
appropriate action to be taken and the reasons for the determination.
For the committee to make a conclusion sustaining a charge, or determin-
ing a penalty or the appropriate action to be taken, two members of the
committee must vote for such a conclusion or determination. The commit-
tee shall issue an order based on its determination. The committee's
findings, conclusions, determinations and order shall become public
[upon issuance]. However, if the time to request a review of the commit-
tee's determination has not yet expired, or if the review has been
requested but no determination as a result of the review has been
issued, such publication shall include a statement advising that the
licensee or the department may request a review of the committee's
determination. No such statement is required if (a) the time to request
such review has expired without the filing of such request by either of
the parties, or (b) the licensee and the department both affirmatively
decline to request review of the committee's determination or fail to
perfect such review. In the event any or all such charges are dismissed,
such dismissal shall be made public within two business days.
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(i) The findings, conclusions, determination and the reasons for the
determination of the committee shall be served upon the licensee, the
department, and any hospitals, primary practice settings or health care
plans required to be identified in publicly disseminated physician data
pursuant to paragraph (j), (n), or (q) of subdivision one of section
twenty-nine hundred ninety-five-a of this chapter, within [sixty] TEN
days of the last day of hearing. Service shall be either by certified
mail upon the licensee at the licensee's last known address and such
service shall be effective upon receipt or seven days after mailing by
certified mail whichever is earlier or by personal service and such
service shall be effective upon receipt. The licensee shall deliver to
the board the license which has been revoked, annulled, suspended or
surrendered, together with the registration certificate, within five
days after receipt of the order. If the license or registration certif-
icate is lost, misplaced or its whereabouts is otherwise unknown, the
licensee shall submit an affidavit to that effect and shall deliver such
license or certificate to the board when located. The director of the
office shall promptly transmit a copy of the order to the division of
professional licensing services of the state education department and to
each hospital at which the licensee has privileges.
(m) Expedited procedures. (i) Violations. Violations involving profes-
sional misconduct of a minor or technical nature may be resolved by
expedited procedures as provided in subparagraph (ii) or (iii) of this
paragraph. For purposes of this paragraph violations of a minor or tech-
nical nature shall include, but shall not be limited to, isolated
instances of violations concerning professional advertising or record
keeping, and other isolated violations which do not directly affect or
impair the public health, welfare or safety.
(ii) Administrative warning and consultation. If the director of the
office of professional medical conduct, after obtaining the concurrence
of a majority of a committee on professional conduct, and after consul-
tation with the executive secretary, determines that there is substan-
tial evidence of professional misconduct of a minor or technical nature
or of substandard medical practice which does not constitute profes-
sional misconduct, the director may issue an administrative warning
and/or provide for consultation with a panel of one or more experts,
chosen by the director. Panels of one or more experts may include, but
shall not be limited to, a peer review committee of a county medical
society or a specialty board. Administrative warnings and consultations
shall [be confidential and shall] not constitute an adjudication of
guilt or be used as evidence that the licensee is guilty of the alleged
misconduct. However, in the event of a further allegation of similar
misconduct by the same licensee, the matter may be reopened and further
proceedings instituted as provided in this section.
(iii) Violation committee proceeding. If the director determines,
after obtaining the concurrence of a majority of a committee on profes-
sional conduct, and after consultation with the executive secretary,
that there is substantial evidence of a violation and that the violation
is of a nature justifying a penalty as specified in this subparagraph
the department may prepare and serve charges, either by personal service
or by certified mail, return receipt requested. A violation committee
proceeding shall be commenced within [three years] ONE YEAR of the
alleged professional misconduct. Such charges shall include a statement
that the matter shall be referred to a committee on professional
conduct, which shall act as a violations committee for determination.
The violations committee shall be appointed by the chairperson of the
A. 5663 6
state board. Paragraph (c) of [subdivision ten of this section] THIS
SUBDIVISION shall apply to the proceeding. A stenographic record of the
hearing shall be made. The evidence in support of the charges shall be
presented by an attorney and the licensee shall be afforded an opportu-
nity to be heard and to present evidence in his behalf. Such violations
committee may [issue a censure and reprimand, may] require the licensee
to perform up to twenty-five hours of public service in a facility
licensed pursuant to article twenty-eight of this chapter in a manner
and at a time and place directed by the board, and in addition, or in
the alternative, may impose a fine not to exceed five [hundred] THOUSAND
dollars for each specification of minor or technical misconduct. The
violations committee may alternatively dismiss the charges in the inter-
est of justice. The order shall be served either by certified mail to
the licensee's last known address and such services shall be effective
upon receipt or seven days after mailing by certified mail whichever is
earlier or by personal service and such service shall be effective upon
receipt. The order may be reviewed by the administrative appeals board
for professional medical conduct.
S 2. Subdivisions 17 and 18 of section 230 of the public health law,
subdivision 17 as amended by chapter 606 of the laws of 1991, subdivi-
sion 18 as amended by chapter 37 of the laws of 1992, paragraphs (a) and
(b) of subdivision 18 as amended by chapter 735 of the laws of 1992, are
amended and a new subdivision 20 is added to read as follows:
17. Monitoring. (a) A licensee [may] SHALL be ordered to have his or
her practice monitored by another appropriate licensee after investi-
gation and review pursuant to paragraph (a) of subdivision ten of this
section, if there is reason to believe that the licensee is unable to
practice medicine with reasonable skill and safety to patients.
(b) The director of the office of professional medical conduct, after
consultation with the executive secretary, shall direct counsel to
prepare a notice detailing the reasonable cause and a copy of the notice
shall be served on the licensee. The matter shall be presented to a
committee on professional conduct by an attorney for the department and
the licensee shall have the opportunity to be heard by such committee
and may be represented by counsel. A stenographic record of the proceed-
ing shall be made. Service of the notice shall be in accordance with the
methods of service authorized by paragraph (d) of subdivision ten of
this section.
(c) If the committee determines that reasonable cause exists as speci-
fied in paragraph (a) of this subdivision and that there is insufficient
evidence for the matter to constitute misconduct as defined in sections
sixty-five hundred thirty and section sixty-five hundred thirty-one of
the education law, the committee [may] SHALL issue an order directing
that the licensee's practice of medicine be monitored for a period spec-
ified in the order, which shall in no event exceed one year, by a licen-
see approved by the director, which may include members of county
medical societies or district osteopathic societies designated by the
commissioner. The licensee responsible for monitoring the licensee shall
submit regular reports to the director. If the licensee refuses to coop-
erate with the licensee responsible for monitoring or if the monitoring
licensee submits a report that the licensee is not practicing medicine
with reasonable skill and safety to his or her patients, the committee
[may] SHALL refer the matter to the director for further proceedings
pursuant to subdivision ten of this section. [An order pursuant to this
paragraph shall be kept confidential and shall not be subject to discov-
ery or subpoena, unless the licensee refuses to comply with the order.]
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(d) A licensee may not seek the appointment of a monitor pursuant to
this subdivision in lieu of an order issued pursuant to subdivision
seven of this section or a disciplinary proceeding pursuant to subdivi-
sion ten or twelve of this section.
(E) A LICENSEE WHO IS SUBJECT TO MONITORING PURSUANT TO THIS SECTION
SHALL BE REQUIRED TO NOTIFY ALL PATIENTS IN WRITING, OF THIS CONDITION,
INCLUDING ANY FINDINGS OF MISCONDUCT AND ANY OTHER PENALTIES IMPOSED.
18. (a) The director shall [have the authority to] monitor physicians,
physician's assistants and specialist's assistants who have been placed
on probation pursuant to a determination of professional misconduct by
the board. During such period of probation, the director, or his or her
designee, as provided in the order of the board, and after consultation
with the executive secretary, (i) [may] SHALL review the professional
performance of the licensee by randomly selecting office records,
patient records and hospital charts, (ii) [may] SHALL require periodic
visits by the licensee to a member of the state board for professional
medical conduct or an employee of the office of professional medical
conduct, (iii) [may] SHALL require the licensee to obtain an appropriate
monitor, approved by the director, to monitor the licensee's practice,
(iv) [may] SHALL require an audit of the licensee's billings for
services rendered during probation, (v) [may] SHALL require the licensee
to submit on a random basis to tests for the presence of alcohol or
drugs, (vi) [may] SHALL require the licensee to obtain additional train-
ing prior to completion of the probation, (vii) [may] SHALL require the
licensee to work in a supervised setting, (viii) [may] SHALL require, as
a condition of the licensee's continued practice, that the licensee
undergo therapy and/or treatment approved and monitored by the director,
(ix) [may] SHALL require that the licensee comply with the requirements
of the penalty imposed, and (x) [may] SHALL impose upon the licensee
such additional requirements as reasonably relate to the misconduct
found or are necessary to protect the health of the people pursuant to
regulation. The director is authorized to delegate some or all of the
foregoing responsibilities to designated county medical societies and
district osteopathic societies.
(b) Any health care provider licensed pursuant to this chapter or the
education law, hospital licensed pursuant to article twenty-eight of
this chapter or medical school that participates in a monitoring or
remediation program pursuant to this subdivision and subdivision seven-
teen of this section shall not be liable for the negligence of the moni-
tored licensee in providing medical care pursuant to a monitoring
program. However, this paragraph does not diminish the participating
provider's, hospital's or school's liability for failure to exercise
reasonable care in properly carrying out its responsibilities under the
program. The monitored licensee shall be required to maintain medical
malpractice insurance coverage with limits no less than two million
dollars per occurrence and six million dollars per policy year.
20. THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT SHALL MAINTAIN AN OFFI-
CIAL WEBSITE WHICH SHALL PROVIDE CLEAR AND UP TO DATE INFORMATION
REGARDING ANY CASES WHERE A COMPLAINT AGAINST A LICENSEE WHERE THE
DIRECTOR OF SUCH OFFICE HAS DETERMINED THAT AN INVESTIGATION IS
WARRANTED. SUCH WEBSITE SHALL ALSO PROVIDE EASILY ACCESSIBLE INFORMATION
REGARDING THE DISPOSITION OF ANY CASE WHICH IS INVESTIGATED, ANY PENALTY
OR CONDITION IMPOSED, INCLUDING ANY CENSURE OR WARNING ISSUED.
S 3. Section 5 of chapter 426 of the laws of 1983, amending the public
health law relating to professional misconduct proceedings, as amended
by chapter 36 of the laws of 2008, is amended to read as follows:
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S 5. This act shall take effect June 1, 1983 [and]; PROVIDED THAT
SECTIONS TWO, THREE AND FOUR OF THIS ACT shall remain in full force and
effect until March 31, [2013] 2014.
S 4. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.