S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8050
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               June 11, 2021
                                ___________
 
 Introduced  by  M. of A. FAHY -- read once and referred to the Committee
   on Higher Education
 
 AN ACT to amend the education law,  in  relation  to  requiring  certain
   health  care  providers  to  disclose the fact that the provider is on
   probation to current and new patients
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The education law is amended by adding a new section 6511-a
 to read as follows:
   §  6511-A.  DISCLOSURE  OF PROBATIONARY STATUS.  (1) THE PROVISIONS OF
 THIS SECTION SHALL APPLY TO ANY PERSON LICENSED  TO  PRACTICE  A  HEALTH
 CARE PROFESSION, AND WHO PROVIDES DIRECT PATIENT CARE, UNDER THE FOLLOW-
 ING  ARTICLES  OF  THIS  TITLE:  ONE  HUNDRED THIRTY-ONE (MEDICINE), ONE
 HUNDRED THIRTY-ONE-B (PHYSICIAN ASSISTANTS),  ONE  HUNDRED  THIRTY-ONE-C
 (SPECIALIST  ASSISTANTS),  ONE  HUNDRED  THIRTY-TWO  (CHIROPRACTIC), ONE
 HUNDRED THIRTY-THREE (DENTISTRY, DENTAL HYGIENE, AND  REGISTERED  DENTAL
 ASSISTING),   ONE  HUNDRED  THIRTY-FOUR  (LICENSED  PERFUSIONISTS),  ONE
 HUNDRED THIRTY-SIX (PHYSICAL THERAPY AND PHYSICAL THERAPIST ASSISTANTS),
 ONE HUNDRED THIRTY-SEVEN (PHARMACY), ONE HUNDRED THIRTY-SEVEN-A  (REGIS-
 TERED  PHARMACY  TECHNICIANS),  ONE  HUNDRED  THIRTY-NINE (NURSING), ONE
 HUNDRED FORTY (PROFESSIONAL MIDWIFERY PRACTICE), ONE  HUNDRED  FORTY-ONE
 (PODIATRY), ONE HUNDRED FORTY-THREE (OPTOMETRY), ONE HUNDRED FIFTY-THREE
 (PSYCHOLOGY),  ONE  HUNDRED FIFTY-FOUR (SOCIAL WORK), ONE HUNDRED FIFTY-
 FIVE (MASSAGE THERAPY), ONE HUNDRED  FIFTY-SIX  (OCCUPATIONAL  THERAPY),
 ONE  HUNDRED  FIFTY-SEVEN  (DIETETICS AND NUTRITION), ONE HUNDRED FIFTY-
 NINE (SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS), ONE HUNDRED  SIXTY
 (ACUPUNCTURE),  ONE  HUNDRED  SIXTY-TWO (ATHLETIC TRAINERS), ONE HUNDRED
 SIXTY-THREE (MENTAL HEALTH PRACTITIONERS)  AND  ONE  HUNDRED  SIXTY-FOUR
 (RESPIRATORY THERAPISTS AND RESPIRATORY THERAPY TECHNICIANS).
   (2) AS USED IN THIS SECTION:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04365-05-1
              
             
                          
                
 A. 8050                             2
 
   (A)  "LICENSEE"  MEANS ANY PERSON LICENSED, CERTIFIED OR AUTHORIZED TO
 PRACTICE A HEALTH CARE PROFESSION GOVERNED BY THE ARTICLES OF THIS TITLE
 LISTED IN SUBDIVISION ONE  OF  THIS  SECTION  AND  WHO  PROVIDES  DIRECT
 PATIENT CARE;
   (B)  "HEALTH  CARE  AGENT"  MEANS A HEALTH CARE AGENT DESIGNATED BY AN
 ADULT PURSUANT TO ARTICLE TWENTY-NINE-C OF THE PUBLIC HEALTH LAW;
   (C) "HEALTH CARE SURROGATE" MEANS AN INDIVIDUAL SELECTED  TO  COMPLETE
 THE  PROBATION  NOTIFICATION FORM AND TO DECIDE ON BEHALF OF THE PATIENT
 WHETHER OR NOT THE PATIENT SHALL  RECEIVE  CARE  FROM  THE  LICENSEE  ON
 PROBATION;  THE  HEALTH  CARE  SURROGATE MUST BE AN ADULT AND MAY BE THE
 SPOUSE OR DOMESTIC PARTNER, A CHILD, A SIBLING, A  PARENT,  OR  A  CLOSE
 FRIEND OF THE PATIENT; AND
   (D)  "REASONABLY AVAILABLE" MEANS THAT A PERSON TO BE CONTACTED CAN BE
 CONTACTED WITH DILIGENT EFFORTS BY THE LICENSEE, ANOTHER  PERSON  ACTING
 ON BEHALF OF THE LICENSEE, OR THE HEALTH CARE FACILITY.
   (3)  EXCEPT AS PROVIDED BY SUBDIVISION FIVE OF THIS SECTION, THE BOARD
 OF REGENTS OR OFFICE OF PROFESSIONAL MISCONDUCT SHALL REQUIRE A LICENSEE
 WHO HAS BEEN PLACED ON PROBATION TO DISCLOSE THE FOLLOWING ON A SEPARATE
 WRITTEN DOCUMENT: HIS OR HER PROBATIONARY STATUS; THE  CAUSE  OR  CAUSES
 FOR  PROBATION  STATED  IN THE ORDER ISSUED BY THE BOARD OF REGENTS, THE
 OFFICE OF PROFESSIONAL MISCONDUCT, OR  THE  COURT;  THE  LENGTH  OF  THE
 PROBATION  AND  THE  END  DATE;  ALL PRACTICE RESTRICTIONS PLACED ON THE
 LICENSEE BY THE BOARD OF REGENTS, OFFICE OF PROFESSIONAL MISCONDUCT,  OR
 THE  COURT;  THE  ADDRESS  OF THE OFFICE OF PROFESSIONAL MISCONDUCT'S OR
 OFFICE OF THE PROFESSIONS ENFORCEMENT ACTIONS' INTERNET WEBSITE; AND THE
 BOARD OF REGENTS OR OFFICE OF PROFESSIONAL MISCONDUCT'S TELEPHONE NUMBER
 TO A CURRENT OR NEW PATIENT, OR TO THE PATIENT'S GUARDIAN,  HEALTH  CARE
 SURROGATE,  OR  HEALTH CARE AGENT PRIOR TO THE PATIENT'S FIRST VISIT, OR
 PRIOR TO THE PATIENT RECEIVING DIRECT CARE FROM THE  LICENSEE  FOLLOWING
 THE  PROBATIONARY  ORDER AND WHILE THE LICENSEE IS ON PROBATION PURSUANT
 TO A PROBATIONARY ORDER MADE ON OR AFTER  JANUARY  FIRST,  TWO  THOUSAND
 TWENTY-THREE,  IN ANY OF THE CIRCUMSTANCES LISTED IN PARAGRAPH (A), (B),
 (C) OR (D)  OF  THIS  SUBDIVISION.  SUCH  WRITTEN  DISCLOSURE  SHALL  BE
 PROVIDED  TO  THE  PATIENT,  OR  TO  THE PATIENT'S GUARDIAN, HEALTH CARE
 SURROGATE, OR HEALTH CARE AGENT IN THE LICENSEE'S OFFICE  PRIOR  TO  THE
 PATIENT  ENTERING  THE ROOM WHERE THE LICENSEE PERFORMS THE EXAMINATION,
 DIAGNOSTIC TESTING, PROCEDURE, TREATMENT OR OTHER DIRECT  PATIENT  CARE;
 OR  IN A HOSPITAL, AMBULATORY CARE CENTER, OR OTHER HEALTH CARE FACILITY
 PRIOR TO THE LICENSEE PERFORMING ANY  EXAMINATION,  TESTING,  PROCEDURE,
 TREATMENT, OR OTHER DIRECT PATIENT CARE.  THE LICENSEE SHALL PROVIDE THE
 DISCLOSURE UNDER THE FOLLOWING CIRCUMSTANCES:
   (A) THE LICENSEE HAS BEEN PLACED ON PROBATION, AS ORDERED BY THE BOARD
 OF  REGENTS, OFFICE OF PROFESSIONAL MISCONDUCT, OR THE COURT AFTER BEING
 IMPLICATED IN ANY OF THE FOLLOWING:
   (I) GROSS NEGLIGENCE OR GROSS INCOMPETENCE;
   (II) REPEATED NEGLIGENT ACTS INVOLVING A DEPARTURE FROM  THE  STANDARD
 OF CARE WITH MULTIPLE PATIENTS;
   (III)  DRUG  OR  ALCOHOL  ABUSE  THAT THREATENS TO IMPAIR A LICENSEE'S
 ABILITY TO RENDER PATIENT CARE SAFELY, INCLUDING  PRACTICING  UNDER  THE
 INFLUENCE OF DRUGS OR ALCOHOL;
   (IV) FELONY OR MISDEMEANOR CONVICTION ARISING FROM OR OCCURRING DURING
 PATIENT CARE OR TREATMENT; OR
   (V)  MENTAL  ILLNESS  OR  OTHER  COGNITIVE  IMPAIRMENT  THAT IMPEDES A
 LICENSEE'S ABILITY TO SAFELY RENDER PATIENT CARE.
 A. 8050                             3
 
   (B) THE BOARD OF REGENTS, OFFICE OF PROFESSIONAL  MISCONDUCT,  OR  THE
 COURT  ORDERED  ANY  OF  THE  FOLLOWING  IN CONJUNCTION WITH PLACING THE
 LICENSEE ON PROBATION:
   (I)  A  THIRD-PARTY CHAPERONE SHALL BE PRESENT WHEN THE LICENSEE EXAM-
 INES PATIENTS AS A RESULT OF SEXUAL MISCONDUCT;
   (II) THE LICENSEE SHALL SUBMIT TO DRUG TESTING AS A RESULT OF DRUG  OR
 ALCOHOL ABUSE; AND/OR
   (III) THE LICENSEE SHALL HAVE A MONITOR.
   (C)  THE LICENSEE HAS NOT SUCCESSFULLY COMPLETED A TRAINING PROGRAM OR
 ANY ASSOCIATED EXAMINATIONS REQUIRED BY THE BOARD OF REGENTS, OFFICE  OF
 PROFESSIONAL MISCONDUCT, OR THE COURT AS A CONDITION OF PROBATION.
   (D) THE LICENSEE HAS BEEN ON PROBATION MORE THAN ONCE.
   (4)  THE  LICENSEE  SHALL  OBTAIN FROM EACH PATIENT, OR EACH PATIENT'S
 GUARDIAN, HEALTH CARE SURROGATE, OR HEALTH CARE AGENT, A SIGNED  RECEIPT
 FOLLOWING  THE DISCLOSURE DESCRIBED IN SUBDIVISION THREE OF THIS SECTION
 THAT INCLUDES A WRITTEN EXPLANATION OF HOW THE PATIENT CAN FIND  FURTHER
 INFORMATION  ON  THE  LICENSEE'S  PROBATION  ON THE APPLICABLE OFFICE OF
 PROFESSIONAL  MISCONDUCT  OR  OFFICE  OF  THE  PROFESSIONS   ENFORCEMENT
 ACTIONS' INTERNET WEBSITE.
   (5) THE LICENSEE SHALL NOT BE REQUIRED TO PROVIDE THE DISCLOSURE PRIOR
 TO  PERFORMING  AN EXAMINATION, DIAGNOSTIC TESTING, PROCEDURE, TREATMENT
 OR OTHER DIRECT PATIENT CARE AS REQUIRED BY SUBDIVISION  THREE  OF  THIS
 SECTION,  IF  IN  THE  HEALTH CARE PROFESSIONAL'S JUDGMENT, AN EMERGENCY
 EXISTS AND THE PERSON IS IN IMMEDIATE NEED OF MEDICAL ATTENTION, AND  AN
 ATTEMPT TO SECURE CONSENT WOULD RESULT IN DELAY OF TREATMENT WHICH WOULD
 INCREASE  THE RISK TO SUCH PERSON'S LIFE OR HEALTH, OR IF THE PATIENT IS
 INCAPACITATED AND THE PATIENT'S  GUARDIAN,  HEALTH  CARE  SURROGATE,  OR
 HEALTH CARE AGENT IS NOT REASONABLY AVAILABLE.
   (6)  SHOULD  A  PATIENT, OR THE PATIENT'S GUARDIAN, HEALTH CARE SURRO-
 GATE, OR HEALTH CARE AGENT, ELECT TO CANCEL THE  PATIENT'S  APPOINTMENT,
 PROCEDURE,  DIAGNOSTIC  TESTING,  TREATMENT OR OTHER DIRECT PATIENT CARE
 WITH THE LICENSEE UPON BEING PROVIDED WITH THE  DISCLOSURE  REQUIRED  BY
 SUBDIVISION THREE OF THIS SECTION, NEITHER THE PATIENT NOR THE PATIENT'S
 INSURANCE COMPANY SHALL BE CHARGED FOR THE APPOINTMENT.
   (7)  ANY LICENSEE WHO VIOLATES THE PROVISIONS OF THIS SECTION SHALL BE
 SUBJECT TO A PENALTY NOT TO EXCEED TWO THOUSAND  DOLLARS.  ANY  LICENSEE
 WHO  COMMITS  SUBSEQUENT,  WILLFUL  VIOLATIONS OF THE PROVISIONS OF THIS
 SECTION SHALL HAVE HIS OR HER LICENSE SUSPENDED FOR A PERIOD OF TIME  TO
 BE DETERMINED BY THE BOARD OF REGENTS.
   (8)  THE  COMMISSIONER OF HEALTH IN CONSULTATION WITH THE COMMISSIONER
 SHALL PROMULGATE REGULATIONS  TO  IMPLEMENT  THE  REQUIREMENTS  OF  THIS
 SECTION,  AND  SHALL ISSUE FORMS SET FORTH THAT SHALL BE USED TO SATISFY
 THE WRITTEN REQUIREMENT SPECIFIED IN THIS SECTION.
   § 2. This act shall take effect January 1, 2023 and shall apply to all
 probationary orders issued on or after January 1, 2023. Effective  imme-
 diately, the addition, amendment and/or repeal of any rule or regulation
 necessary  for  the implementation of this act on its effective date are
 authorized to be made and completed on or before such effective date.