NY State Senate Bill 2013-S4527A

Senate Bill S4527A

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 st

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Archive: Last Bill Status - In Senate Committee Health 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 returned to senate died in assembly
Jun 20, 2013	referred to codes delivered to assembly passed senate ordered to third reading cal.1529 committee discharged and committed to rules
Jun 17, 2013	print number 4527a
Jun 17, 2013	amend (t) and recommit to health
Apr 08, 2013	referred to health

Votes

- Jun 20, 2013 - Floor Vote
  S4527A
  
  63
  
  Aye
  
  0
  
  Nay
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 20, 2013
      
      aye (63)
      
      Adams
      
      Addabbo Jr.
      
      Avella
      
      Ball
      
      Bonacic
      
      Boyle
      
      Breslin
      
      Carlucci
      
      DeFrancisco
      
      Diaz
      
      Dilan
      
      Espaillat
      
      Farley
      
      Felder
      
      Flanagan
      
      Fuschillo
      
      Gallivan
      
      Gianaris
      
      Gipson
      
      Golden
      
      Griffo
      
      Grisanti
      
      Hannon
      
      Hassell-Thompson
      
      Hoylman-Sigal
      
      Kennedy
      
      Klein
      
      Krueger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Latimer
      
      Libous
      
      Little
      
      Marcellino
      
      Marchione
      
      Martins
      
      Maziarz
      
      Montgomery
      
      Nozzolio
      
      O'Brien
      
      O'Mara
      
      Parker
      
      Peralta
      
      Perkins
      
      Ranzenhofer
      
      Ritchie
      
      Rivera
      
      Robach
      
      Sampson
      
      Sanders Jr.
      
      Savino
      
      Serrano
      
      Seward
      
      Skelos
      
      Smith
      
      Squadron
      
      Stavisky
      
      Stewart-Cousins
      
      Tkaczyk
      
      Valesky
      
      Young
      
      Zeldin
  Jun 20, 2013 - Rules Committee Vote
  S4527A
  
  25
  
  Aye
  
  0
  
  Nay
  
  0
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Rules Committee Vote: Jun 20, 2013
      
      aye (25)
      
      Bonacic
      
      Breslin
      
      Carlucci
      
      Dilan
      
      Espaillat
      
      Farley
      
      Flanagan
      
      Fuschillo
      
      Gianaris
      
      Hannon
      
      Hassell-Thompson
      
      Krueger
      
      LaValle
      
      Larkin
      
      Libous
      
      Marcellino
      
      Maziarz
      
      Montgomery
      
      Nozzolio
      
      Parker
      
      Perkins
      
      Seward
      
      Skelos
      
      Stewart-Cousins
      
      Valesky

Bill Amendments

Original

A (Active)

2013-S4527 - Details

See Assembly Version of this Bill:: A7102
Current Committee:: Senate 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-S4527 - 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-S4527 - Sponsor Memo

                                BILL NUMBER:S4527

TITLE OF BILL:  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

Purpose:  This bill would enhance patient safety and bring
efficiencies to the disciplinary process for physicians, physician
assistants and specialist assistants by: (1) strengthening enforcement
of clinical competency remediation recommendations; (2) permitting
notice of disciplinary proceedings conducted by the Office of
Professional Conduct (OPMC) of the Department of Health (DOH) to be
served by mail; (3) requiring written specification in cases when the
Board of Regents (Regents) determines to allow reinstatement of a
physician if contrary to OPMC's recommendation; and (4) clarifying
standards for advertising by medical professionals. In addition, the
bill would allow DOH to impose penalties for violations of orders and
regulations under the Public Health Law and regulations consistent

with those available to local boards of health and health officers.

Summary of Provisions:

Section 1 of the bill would add new Public Health Law (PHL)
230(7)(d) to allow a Committee on Professional Conduct (Committee) to
order compliance with the remediation recommendations of a clinical
competency examination pursuant to PHL § 230(7)(c). The Committee
could also refer the case to the Director of OPMC for presentation to
an investigative committee if it determines that if there is no
practical remediation for a licensee's incompetence.

Section 2 of the bill would amend Education Law § 6530(5) to provide
that to have been found incompetent as the result of an examination
conducted under PHL § 230(7)(c) is "professional misconduct" if a
Committee determines that there is no practical remediation for such
incompetence.

Section 3 of the bill would amend Education Law § 6530(15) to expand
the definition of professional misconduct to include failure to comply
with remediation recommendations made as the result of an examination
conducted under PHL § 230(7)(c) and ordered by a Committee.

Section 4 of the bill would amend PHL § 230(10)(d)(i) to provide that
the State Board for Professional Medical Conduct (Board) may serve a
copy of the charges and the notice of hearing by means other than
personal service.

Section 5 of the bill would amend PHL § 230(10)(q) to eliminate the
opportunity to seek restoration of a license by OPMC when an
application for restoration can be made to Regents.


Section 6 of the bill would amend Education Law § 6511 to provide that
if the Regents, in considering an application to restore a license
that had been revoked, does not act consistent with the recommendation
of OPMC, its decision must set forth its justification for departing
from such recommendation.

Section 7 of the bill would amend PHL § 2995-a(3) to make a technical
correction.

Section 8 of the bill would amend Education Law § 6530(27) to make the
restrictions on advertising consistent with those currently included
in the Rules of the Board of Regents, 8 NYCRR 29.1(b)(12).

Section 9 of the bill would amend PHL § 12-b(2) to create penalties
for willful violations of Commissioner's orders and permit fines to be
levied against individuals who violate Commissioner's orders.

Section 10 of the bill would make the current version of PHL § 12-b(2)
permanent.

Existing Law:  PHL § 12-b provides that willful violations of the PHL,
regulations under the PHL, municipal regulations, orders of local
boards of health or orders of health officers are subject to the
assessment of a $10,000 penalty or up to a year in prison.

PHL § 230(1) establishes the State Board for Professional Medical
Conduct within DOH and authorizes it to investigate complaints of
physician professional misconduct, as defined in the New York State
Education Law §§ 6530 and 6531.

PHL § 230(7)(a) authorizes the Board, through its Committees on
Professional Conduct, to conduct disciplinary proceedings against
physicians, medical residents, physician assistants and special
assistants.

PHL § 230(7)(a) authorizes a Committee on Professional Conduct to
direct that a licensee submit to a medical or psychiatric examination
if there is reason to believe the licensee may be impaired by alcohol,
drugs, physical disability or mental disability.

PHL § 230(7)(c) authorizes a Committee on Professional Conduct to
direct a licensee to undergo a clinical competency examination when
there is reason to believe that his or her competency is an issue.
The examiner is chosen by the Board with the advice of the licensee
and OPMC, and the licensee may also obtain another evaluation from the
examiner of his or her choice.

PHL § 230(10)(a) requires the Board, through OPMC, to investigate any
complaint it receives, regardless of the source, and authorizes the
investigation of suspected professional misconduct on its own
initiative.

PHL § 230(10)(c) provides that the Board shall set the time and place
of a hearing and dictates the contents of a notice of hearing.

PHL § 230(10)(d)(i) provides that to initiate a professional
misconduct hearing, the Board must serve a copy of the charges and a


notice of hearing upon a licensee by personal services at least 30
days before a scheduled hearing.

PHL § 230(10)(d)(i) requires that when professional misconduct
proceedings are commenced, a copy of the charges and the notice of
hearing must be provided to the licensee either by: (1) personal
service at least 30 days prior to the hearing, or (2) registered or
certified mail service to the licensee's last known address at least
15 days prior to the hearing, if and only if attempts at personal
service have been made and have been unsuccessful.

PHL § 230(10)(q) provides that at any time subsequent to the
conclusion of a professional misconduct proceeding that results in a
Board determination and order, the licensee may file a petition with
the Director of OPMC to have the determination and order modified or
vacated, but only if based on new evidence. If the Director determines
that the information submitted by the licensee, if it were available
at an earlier time, could likely have led to a different result, the
Director and the licensee may jointly petition the Chair of the Board
for Professional Medical Conduct to vacate or modify the determination
and order.

Education Law § 6511 provides that a licensee whose license has been
revoked may petition the Regents to restore the license, but based on
broader Regents discretion, without statutory delineation of limiting
criteria. Pursuant to the Regents' regulations, that Board will not
entertain a petition prior to the passage of a specific period of
time. At present, a former licensee may petition the Regents beginning
three years after the license is revoked.

Education Law 6530(27) defines as professional misconduct a
physician's use of a patient testimonial regardless of whether the
testimonial is truthful, not misleading, not fraudulent or not
deceptive. Demonstrations, dramatizations, or other portrayals of
professional practice in advertising on radio or television are also
prohibited.

Education Law § 6502(5) requires that each physician maintain a
current address on file with SED.

Section 29.1(b)(12) of Title 8 NYCRR provides that: (1) testimonials,
demonstrations, dramatizations or other portrayals of professional
practice in advertising may be used if the patient authorizes the
portrayal in writing; (2) there is appropriate disclosure to avoid
misleading the audience as to the patient's identity; (3) reasonable
disclaimers are included; and (4) testimonials may not be fictional.

Legislative History:  The proposed amendments to Education Law
6530(27) were included as part of legislation proposed in 2008, but
were not enacted. The remaining proposals are new.

Statement in Support:  The Board, within the DOH, administers the
disciplinary process for physicians, physician assistants and
specialist assistants. OPMC investigates allegations of professional
misconduct, and an Investigation Committee of the Board determines if
charges should be issued. If so, the Board will issue a notice of
charges. The licensee is entitled to a hearing before a Committee on


Professional Conduct and an administrative review officer, who issues
findings of fact and conclusions of law and, if appropriate, imposes a
penalty. The licensee may seek administrative review from the
Administrative Review Board (ARB) and, if the ARB affirms the
administrative review officer's determination, to judicial review This
bill would institute several refinements.

First, while the Board currently is authorized to order a licensee to
undergo a clinical competency examination, it cannot compel
remediation in deficit areas or to take action if non-remediable
incompetence is found. The bill would authorize a Committee, after
affording a licensee notice and an opportunity to be heard, to order
compliance with the remediation recommendations of a clinical
competency examination. In addition, upon determining that there is no
practical remediation for a licensee's incompetence, the bill would
authorize the Committee to refer the case to the Director of OPMC for
presentation to an investigative committee. This is necessary to allow
the Board to address the licensee's incompetence and protect the
patient public from those who are discovered to be incompetent yet
refuse or are not capable of remediation.

Second, OPMC must attempt personal service of a copy of misconduct
charges and the notice of hearing before it can serve process by mail.
By adding alternative methods of service in addition to personal
service, the expenditure of funds and use of staff resources would be
reduced Additionally, in many instances, licensees likely would
receive notice sooner.

Third, the bill would allow a licensee to seek restoration of a
license by OPMC until such time as he or she is able to petition the
Regents for the restoration. Because licensees would still have an
avenue available to seek restoration, this proposal would have minimal
impact to them. Additionally, this bill would enhance patient
protection by requiring the Board of Regents to provide a written
justification for departing from an OPMC recommendation relating to an
individual's application for restoration of a license.

Fourth, the bill revises Education Law § 6530(27), consistent with SED
regulations, to provide that testimonials, demonstrations,
dramatizations or other portrayals of professional practice in
advertising may be used if the patient authorizes the portrayal in
writing, there is appropriate disclosure to avoid misleading the
audience as to the patient's identity, reasonable disclaimers are
included, and testimonials may not be fictional.

Finally, this bill would amend PHL § 12-b so that there is consistency
in enforcement, Currently, under § 12-b(2), willful violations of
municipal public health laws or regulations or orders of local boards
of health or health officers are punishable by up to a year of
imprisonment, a fine not exceeding $10,000, or both. This bill would
amend PHL § 12-b(2) so that these penalties could be levied against
individuals that violate Commissioner's orders.

Budget Implications:  This bill would have no fiscal impact to the
State, except that the proposed amendments relating to service by mail
is likely to lead to savings DOH spent $48,000 in 2010-11 on service


of process, and estimates that the proposed amendments would reduce
this amount between 60 and 80 percent.

Effective Date:  This bill would take effect 60 days after enactment
except §§ 7, 9, and 10 would take effect immediately.

2013-S4527 - Bill Text download pdf

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

                                  4527

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              April 8, 2013
                               ___________

Introduced by Sen. HANNON -- (at request of the Department of Health) --
  read  twice  and  ordered printed, and when printed to be committed 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

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

S. 4527                             2

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 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

S. 4527                             3

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
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:

S. 4527                             4

  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-
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;

S. 4527                             5

  (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-S4527A (ACTIVE) - Details

See Assembly Version of this Bill:: A7102
Current Committee:: Senate 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-S4527A (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-S4527A (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S4527A

TITLE  OF  BILL:    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  willful  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

Purpose:    This  bill  would  enhance  patient   safety   and   bring
efficiencies  to  the  disciplinary  process for physicians, physician
assistants and specialist assistants by: (1) strengthening enforcement
of clinical competency  remediation  recommendations;  (2)  permitting
notice   of  disciplinary  proceedings  conducted  by  the  Office  of
Professional Conduct (OPMC) of the Department of Health  (DOH)  to  be
served  by mail; (3) requiring written specification in cases when the
Board of Regents (Regents) determines  to  allow  reinstatement  of  a
physician  if  contrary  to  OPMC's recommendation, and (4) clarifying
standards for advertising by medical professionals. In  addition;  the
bill  would allow DOH to impose penalties for violations of orders and

regulations under the Public Health  Law  and  regulations  consistent
with those available to local boards of health and health officers.

Summary of Provisions:

Section  1  of  the  bill  would  add  new  Public  Health Law (PHL)
230(7)(d) to allow a Committee on Professional Conduct (Committee)  to
order  compliance  with  the remediation recommendations of a clinical
competency examination pursuant to  PHL  §  230(7)(c).  The  Committee
could  also refer the case to the Director of OPMC for presentation to
an  investigative  committee  if  it  determines  that  there  are  no
reasonable  conditions  or  limitations that could be imposed upon the
licensee that would sufficiently mitigate the licensee's incompetence.

Section 2 of the bill would amend Education Law § 6530(5)  to  provide
that  to  have  been found incompetent as the result of an examination
conducted under PHL § 230(7)(c)  is  "professional  misconduct"  if  a
Committee  determines  that there is no practical remediation for such
incompetence.

Section 3 of the bill would amend Education Law § 6530(15)  to  expand
the definition of professional misconduct to include failure to comply
with  remediation recommendations made as the result of an examination
conducted under PHL § 230(7)(c) and ordered by a Committee.

Section 4 of the bill would amend PHL § 230(l 0)(d)(i) to provide that
the State Board for Professional Medical Conduct (Board) may  serve  a
copy  of  the  charges  and  the notice of hearing by means other than
personal service.


Section 5 of the bill would amend PHL § 230(10)(q)  to  eliminate  the
opportunity  to  seek  restoration  of  a  license  by  OPMC  when  an
application for restoration can be made to Regents.

Section 6 of the bill would amend Education Law § 6511 to provide that
if  the  Regents,  in  considering an application to restore a license
that had been revoked, does not act consistent with the recommendation
of OPMC, its decision must set forth its justification  for  departing
from such recommendation.

Section  7  of  the  bill  would  amend  P1-IL  §  2995-a(3) to make a
technical correction.

Section 8 of the bill would amend Education Law § 6530(27) to make the
restrictions on advertising consistent with those  currently  included
in the Rules of the Board of Regents, 8 NYCRR 29 1(b)(12)

Section 9 of the bill would amend P1--IL § 1241(2) to create penalties
for willful violations of Commissioner's orders and permit fines to be
levied against individuals who violate Commissioner's orders.

Section 10 of the bill would make the current version of PHL § 12-b(2)
permanent.

Existing Law:

PHL  §  12-b  provides that willful violations of the PHL, regulations
under the PHL, municipal regulations, orders of local boards of health
or orders of health officers  are  subject  to  the  assessment  of  a
S10,000 penalty or up to a year in prison.

PHL  §  230(1)  establishes  the  State Board for Professional Medical
Conduct within DOH and authorizes  it  to  investigate  complaints  of
physician  professional  misconduct,  as defined in the New York State
Education Law §§ 6530 and 6531.

PHL § 230(7)(a)  authorizes  the  Board,  through  its  Committees  on
Professional  Conduct,  to  conduct  disciplinary  proceedings against
physicians,  medical  residents,  physician  assistants  and   special
assistants.

PHL  §  230(7)(a)  authorizes  a  Committee on Professional Conduct to
direct that a licensee submit to a medical or psychiatric  examination
if there is reason to believe the licensee may be impaired by alcohol,
drugs, physical disability or mental disability.

PHL  §  230(7)(c)  authorizes  a  Committee on Professional Conduct to
direct a licensee to undergo a clinical  competency  examination  when
there  is  reason  to  believe that his or her competency is an issue.
The examiner is chosen by the Board with the advice  of  the  licensee
and OPMC, and the licensee may also obtain another evaluation from the
examiner of his or her choice.

PHL  § 230(10)(a) requires the Board, through OPMC, to investigate any
complaint it receives, regardless of the source,  and  authorizes  the
investigation   of   suspected  professional  misconduct  on  its  own
initiative


PHL § 230(10)(c) provides that the Board shall set the time and  place
of a hearing and dictates the contents of a notice of hearing

PHL   §   230(10)(d)(i)  provides  that  to  initiate  a  professional
misconduct hearing, the Board must serve a copy of the charges  and  a
notice  of  hearing  upon  a licensee by personal services at least 30
days before a scheduled heating.

PHL  §  230(10)(d)(i)  requires  that  when  professional   misconduct
proceedings  are  commenced,  a  copy of the charges and the notice of
hearing must be provided to  the  licensee  either  by:  (1)  personal
service  at  least  30 days prior to the hearing, or (2) registered or
certified mail service to the licensee's last known address  at  least
15  days  prior  to  the  hearing, if and only if attempts at personal
service have been made and have been unsuccessful

PHL  §  230(10)(q)  provides  that  at  any  time  subsequent  to  the
conclusion  of  a professional misconduct proceeding that results in a
Board determination and order, the licensee may file a  petition  with
the  Director  of OPMC to have the determination and order modified or
vacated, but only if based on new evidence. If the Director determines
that the information submitted by the licensee, if it  were  available
at  an  earlier time, could likely have led to a different result, the
Director and the licensee may jointly petition the Chair of the  Board
for Professional Medical Conduct to vacate or modify the determination
and order.

Education  Law  § 6511 provides that a licensee whose license has been
revoked may petition the Regents to restore the license, but based  on
broader  Regents discretion, without statutory delineation of limiting
criteria Pursuant to the Regents' regulations,  that  Board  will  not
entertain  a  petition  prior  to  the passage of a specific period of
time. At present, a former licensee may petition the Regents beginning
three years after the license is revoked

Education  Law  6530(27)  defines   as   professional   misconduct   a
physician's  use  of  a  patient testimonial regardless of whether the
testimonial  is  truthful,  not  misleading,  not  fraudulent  or  not
deceptive.  Demonstrations,  dramatizations,  or  other  portrayals of
professional practice in advertising on radio or television  are  also
prohibited.

Education  Law  §  6502(5)  requires  that  each  physician maintain a
current address on file with SED.

Section 29.1(b)(12) of Title 8 NYCRR provides that: (1)  testimonials,
demonstrations,  dramatizations  or  other  portrayals of professional
practice in advertising may be used  if  the  patient  authorizes  the
portrayal  in  writing;  (2)  there is appropriate disclosure to avoid
misleading the audience as to the patient's identity;  (3)  reasonable
disclaimers are included; and (4) testimonials may not be fictional.

Legislative  History:    The  proposed  amendments  to  Education  Law
6530(27) were included as part of legislation proposed  in  2008,  but
were not enacted. The remaining proposals are new

Statement in Support:


The  Board,  within  the DOH, administers the disciplinary process for
physicians,  physician  assistants  and  specialist  assistants.  OPMC
investigates   allegations   of   professional   misconduct,   and  an
investigation Committee of the Board determines if charges  should  be
issued.  If so, the Board will issue a notice of charges. The licensee
is entitled to a hearing before a Committee  on  Professional  Conduct
and  an administrative review officer, who issues findings of fact and
conclusions of  law  and,  if  appropriate,  imposes  a  penalty.  The
licensee may seek administrative review from the Administrative Review
Board  (ARB)  and,  if  the  ARB  affirms  the  administrative  review
officer's determination, to judicial review This bill would  institute
several refinements

First,  while the Board currently is authorized to order a licensee to
undergo  a  clinical  competency   examination,   it   cannot   compel
remediation  in  deficit  areas  or  to  take action if non-remediable
incompetence is found. The bill would  authorize  a  Committee,  after
affording  a  licensee notice and an opportunity to be heard, to order
compliance  with  the  remediation  recommendations  of   a   clinical
competency  examination.  In addition, upon determining that there are
no reasonable conditions or limitations that could be imposed  upon  a
licensee that would sufficiently mitigate the licensee's incompetence,
the  bill  would  authorize  the  Committee  to  refer the case to the
Director of OPMC for presentation to an investigative committee.  This
is necessary to allow the Board to address the licensee's incompetence
and  protect  the  patient  public from those who are discovered to be
incompetent yet refuse or are not capable of remediation.

Second, OPMC must attempt personal service of  a  copy  of  misconduct
charges and the notice of hearing before it can serve process by mail.
By  adding  alternative  methods  of  service  in addition to personal
service, the expenditure of funds and use of staff resources would  be
reduced.  Additionally,  in  many  instances,  licensees  likely would
receive notice sooner.

Third, the bill would allow  a  licensee  to  seek  restoration  of  a
license  by  OPMC until such time as he or she is able to petition the
Regents for the restoration. Because licensees  would  still  have  an
avenue available to seek restoration, this proposal would have minimal
impact   to  them.  Additionally,  this  bill  would  enhance  patient
protection by requiring the Board of  Regents  to  provide  a  written
justification for departing from an OPMC recommendation relating to an
individual's application for restoration of a license.

Fourth, the bill revises Education Law § 6530(27), consistent with SED
regulations,    to    provide   that   testimonials,   demonstrations,
dramatizations  or  other  portrayals  of  professional  practice   in
advertising  may  be  used  if the patient authorizes the portrayal in
writing, there is  appropriate  disclosure  to  avoid  misleading  the
audience  as  to  the  patient's  identity, reasonable disclaimers are
included, and testimonials may not be  fictional.  This  amendment  is
consistent  with  the  2010  Second  Circuit  decision  in Alexander v
Cczhtli, 598 F .3d 79 (2d Cir 2010), cert. denied, 131  S.    Ct.  820
(2010).   in  that  case,  the  court  affirmed  the  invalidation  of
limitations on endorsements and testimonials in  attorney  advertising
which   constituted   commercial  speech  protected  under  the  First
Amendment.


Finally, this bill would amend PHL § 12-b so that there is consistency
in enforcement. Currently, under  .  12-b(2),  willful  violations  of
municipal  public health laws or regulations or orders of local boards
of health or health officers  are  punishable  by  up  to  a  year  of
imprisonment,  a  fine not exceeding $10,000, or both. This bill would
amend PHL § I 2-b(2) so that these penalties could be  levied  against
individuals that violate Commissioner's orders.

Budget  Implications:    This  bill would have no fiscal impact to the
State, except that the proposed amendments relating to service by mail
is likely to lead to savings. DOH spent 548,000 in 2010-11 on  service
of  process,  and  estimates that the proposed amendments would reduce
this amount between 60 and 80 percent

Effective Date:  This bill would take effect 60 days  after  enactment
except §§ 7, 9, and 10 would take effect immediately

2013-S4527A (ACTIVE) - Bill Text download pdf

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

                                 4527--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              April 8, 2013
                               ___________

Introduced by Sen. HANNON -- (at request of the Department of Health) --
  read  twice  and  ordered printed, and when printed to be committed to
  the Committee on Health -- 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; 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-
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.
                                                           LBD09282-07-3

S. 4527--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

S. 4527--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

S. 4527--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-

S. 4527--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.  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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