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SECTION 6530
Definitions of professional misconduct
Education (EDN) CHAPTER 16, TITLE 8, ARTICLE 131-A
§ 6530. Definitions of professional misconduct. Each of the following
is professional misconduct, and any licensee found guilty of such
misconduct under the procedures prescribed in section two hundred thirty
of the public health law shall be subject to penalties as prescribed in
section two hundred thirty-a of the public health law except that the
charges may be dismissed in the interest of justice:

1. Obtaining the license fraudulently;

2. Practicing the profession fraudulently or beyond its authorized
scope;

3. Practicing the profession with negligence on more than one
occasion;

4. Practicing the profession with gross negligence on a particular
occasion;

5. Practicing the profession with incompetence on more than one
occasion;

6. Practicing the profession with gross incompetence;

7. Practicing the profession while impaired by alcohol, drugs,
physical disability, or mental disability;

8. Being a habitual abuser of alcohol, or being dependent on or a
habitual user of narcotics, barbiturates, amphetamines, hallucinogens,
or other drugs having similar effects, except for a licensee who is
maintained on an approved therapeutic regimen which does not impair the
ability to practice, or having a psychiatric condition which impairs the
licensee's ability to practice;

9. (a) Being convicted of committing an act constituting a crime
under:

(i) New York state law or,

(ii) federal law or,

(iii) the law of another jurisdiction and which, if committed within
this state, would have constituted a crime under New York state law;

(b) Having been found guilty of improper professional practice or
professional misconduct by a duly authorized professional disciplinary
agency of another state where the conduct upon which the finding was
based would, if committed in New York state, constitute professional
misconduct under the laws of New York state;

(c) Having been found guilty in an adjudicatory proceeding of
violating a state or federal statute or regulation, pursuant to a final
decision or determination, and when no appeal is pending, or after
resolution of the proceeding by stipulation or agreement, and when the
violation would constitute professional misconduct pursuant to this
section;

(d) Having his or her license to practice medicine revoked, suspended
or having other disciplinary action taken, or having his or her
application for a license refused, revoked or suspended or having
voluntarily or otherwise surrendered his or her license after a
disciplinary action was instituted by a duly authorized professional
disciplinary agency of another state, where the conduct resulting in the
revocation, suspension or other disciplinary action involving the
license or refusal, revocation or suspension of an application for a
license or the surrender of the license would, if committed in New York
state, constitute professional misconduct under the laws of New York
state;

(e) Having been found by the commissioner of health to be in violation
of article thirty-three of the public health law;

10. Refusing to provide professional service to a person because of
such person's race, creed, color or national origin;

11. Permitting, aiding or abetting an unlicensed person to perform
activities requiring a license;

12. Practicing the profession while the license is suspended or
inactive as defined in subdivision thirteen of section two hundred
thirty of the public health law, or willfully failing to register or
notify the department of education of any change of name or mailing
address, or, if a professional service corporation, willfully failing to
comply with sections fifteen hundred three and fifteen hundred fourteen
of the business corporation law or, if a university faculty practice
corporation wilfully failing to comply with paragraphs (b), (c) and (d)
of section fifteen hundred three and section fifteen hundred fourteen of
the business corporation law;

13. A willful violation by a licensee of subdivision eleven of section
two hundred thirty of the public health law;

14. A violation of section twenty-eight hundred three-d, twenty-eight
hundred five-k or subparagraph (ii) of paragraph (h) of subdivision ten
of section two hundred thirty of the public health law; or

15. 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;

16. A willful or grossly negligent failure to comply with substantial
provisions of federal, state, or local laws, rules, or regulations
governing the practice of medicine;

17. Exercising undue influence on the patient, including the promotion
of the sale of services, goods, appliances, or drugs in such manner as
to exploit the patient for the financial gain of the licensee or of a
third party;

18. Directly or indirectly offering, giving, soliciting, or receiving
or agreeing to receive, any fee or other consideration to or from a
third party for the referral of a patient or in connection with the
performance of professional services;

19. Permitting any person to share in the fees for professional
services, other than: a partner, employee, associate in a professional
firm or corporation, professional subcontractor or consultant authorized
to practice medicine, or a legally authorized trainee practicing under
the supervision of a licensee. This prohibition shall include any
arrangement or agreement whereby the amount received in payment for
furnishing space, facilities, equipment or personnel services used by a
licensee constitutes a percentage of, or is otherwise dependent upon,
the income or receipts of the licensee from such practice, except as
otherwise provided by law with respect to a facility licensed pursuant
to article twenty-eight of the public health law or article thirteen of
the mental hygiene law;

20. Conduct in the practice of medicine which evidences moral
unfitness to practice medicine;

21. Willfully making or filing a false report, or failing to file a
report required by law or by the department of health or the education
department, or willfully impeding or obstructing such filing, or
inducing another person to do so;

22. Failing to make available to a patient, upon request, copies of
documents in the possession or under the control of the licensee which
have been prepared for and paid for by the patient or client;

23. Revealing of personally identifiable facts, data, or information
obtained in a professional capacity without the prior consent of the
patient, except as authorized or required by law;

24. Practicing or offering to practice beyond the scope permitted by
law, or accepting and performing professional responsibilities which the
licensee knows or has reason to know that he or she is not competent to
perform, or performing without adequate supervision professional
services which the licensee is authorized to perform only under the
supervision of a licensed professional, except in an emergency situation
where a person's life or health is in danger;

* 25. Delegating professional responsibilities to a person when the
licensee delegating such responsibilities knows or has reason to know
that such person is not qualified, by training, by experience, or by
licensure, to perform them;

* NB Effective until May 20, 2021

* 25. Delegating professional responsibilities to a person when the
licensee delegating such responsibilities knows or has reason to know
that such person is not qualified, by training, by experience, or by
licensure, to perform them.

* NB Effective May 20, 2021

25-a. With respect to any non-emergency treatment, procedure or
surgery which is expected to involve local or general anesthesia,
failing to disclose to the patient the identities of all physicians,
except medical residents in certified training programs, podiatrists and
dentists, reasonably anticipated to be actively involved in such
treatment, procedure or surgery and to obtain such patient's informed
consent to said practitioners' participation;

26. Performing professional services which have not been duly
authorized by the patient or his or her legal representative;

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, misleading, sensational, or flamboyant;

(ii) represents intimidation or undue pressure;

(iii) uses testimonials;

(iv) guarantees any service;

(v) 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) makes claims of professional superiority which cannot be
substantiated by the licensee, who shall have the burden of proof; or

(vii) 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
directory or on radio or television 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
professional practice shall be permitted in advertising on radio or
television;

28. Failing to respond within thirty days to written communications
from the department of health and to make available any relevant records
with respect to an inquiry or complaint about the licensee's
professional misconduct. The period of thirty days shall commence on the
date when such communication was delivered personally to the licensee.
If the communication is sent from the department of health by registered
or certified mail, with return receipt requested, to the address
appearing in the last registration, the period of thirty days shall
commence on the date of delivery to the licensee, as indicated by the
return receipt;

29. Violating any term of probation or condition or limitation imposed
on the licensee pursuant to section two hundred thirty of the public
health law;

30. Abandoning or neglecting a patient under and in need of immediate
professional care, without making reasonable arrangements for the
continuation of such care, or abandoning a professional employment by a
group practice, hospital, clinic or other health care facility, without
reasonable notice and under circumstances which seriously impair the
delivery of professional care to patients or clients;

31. Willfully harassing, abusing, or intimidating a patient either
physically or verbally;

32. Failing to maintain a record for each patient which accurately
reflects the evaluation and treatment of the patient, provided, however,
that a physician who transfers an original mammogram to a medical
institution, or to a physician or health care provider of the patient,
or to the patient directly, as otherwise provided by law, shall have no
obligation under this section to maintain the original or a copy
thereof. Unless otherwise provided by law, all patient records must be
retained for at least six years. Obstetrical records and records of
minor patients must be retained for at least six years, and until one
year after the minor patient reaches the age of eighteen years;

33. Failing to exercise appropriate supervision over persons who are
authorized to practice only under the supervision of the licensee;

34. Guaranteeing that satisfaction or a cure will result from the
performance of professional services;

35. Ordering of excessive tests, treatment, or use of treatment
facilities not warranted by the condition of the patient;

36. Claiming or using any secret or special method of treatment which
the licensee refused to divulge to the department of health;

37. Failing to wear an identifying badge, which shall be conspicuously
displayed and legible, indicating the practitioner's name and
professional title authorized pursuant to this chapter, while practicing
as an employee or operator of a hospital, clinic, group practice or
multi-professional facility, or at a commercial establishment offering
health services to the public;

38. Entering into an arrangement or agreement with a pharmacy for the
compounding and/or dispensing of coded or specially marked
prescriptions;

39. With respect to all professional practices conducted under an
assumed name, other than facilities licensed pursuant to article
twenty-eight of the public health law or article thirteen of the mental
hygiene law, failing to post conspicuously at the site of such practice
the name and licensure field of all of the principal professional
licensees engaged in the practice at that site (i.e., principal
partners, officers or principal shareholders);

40. Failing to provide access by qualified persons to patient
information in accordance with the standards set forth in section
eighteen of the public health law as added by chapter 497 of the laws of
1986;

41. Knowingly or willfully performing a complete or partial autopsy on
a deceased person without lawful authority;

42. Failing to comply with a signed agreement to practice medicine in
New York state in an area designated by the commissioner of education as
having a shortage of physicians or refusing to repay medical education
costs in lieu of such required service, or failing to comply with any
provision of a written agreement with the state or any municipality
within which the licensee has agreed to provide medical service, or
refusing to repay funds in lieu of such service as consideration of
awards made by the state or any municipality thereof for his or her
professional education in medicine, or failing to comply with any
agreement entered into to aid his or her medical education;

43. Failing to complete forms or reports required for the
reimbursement of a patient by a third party. Reasonable fees may be
charged for such forms or reports, but prior payment for the
professional services to which such forms or reports relate may not be
required as a condition for making such forms or reports available;

44. In the practice of psychiatry, (a) any physical contact of a
sexual nature between licensee and patient except the use of films
and/or other audiovisual aids with individuals or groups in the
development of appropriate responses to overcome sexual dysfunction and
(b) in therapy groups, activities which promote explicit physical sexual
contact between group members during sessions; and

45. In the practice of ophthalmology, failing to provide a patient,
upon request, with the patient's prescription including the name,
address, and signature of the prescriber and the date of the
prescription.

46. A violation of section two hundred thirty-nine of the public
health law by a professional.

47. Failure to use scientifically accepted barrier precautions and
infection control practices as established by the department of health
pursuant to section two hundred thirty-a of the public health law.

48. A violation of section two hundred thirty-d of the public health
law or the regulations of the commissioner of health enacted thereunder.

49. Except for good cause shown, failing to provide within one day any
relevant records or other information requested by the state or local
department of health with respect to an inquiry into a report of a
communicable disease as defined in the state sanitary code, or HIV/AIDS.

50. Performing a pelvic examination or supervising the performance of
a pelvic examination in violation of subdivision seven of section
twenty-five hundred four of the public health law.