Bill Text: NY A07102 | 2013-2014 | General Assembly | Amended
Bill Title: Relates to competency exams, service of charges, petitions to modify or vacate orders, profiling requirements and modifying physician and advertising and testimony standards.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2014-01-08 - referred to health [A07102 Detail]
Download: New_York-2013-A07102-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
7102--B
2013-2014 Regular Sessions
I N A S S E M B L Y
May 1, 2013
___________
Introduced by M. of A. GOTTFRIED -- (at request of the Department of
Health) -- read once and referred to the Committee on Health --
reported and referred to the Committee on Codes -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- again reported from said committee with amend-
ments, ordered reprinted as amended and recommitted to said committee
AN ACT to amend the public health law and the education law, in relation
to enforcing compliance with clinical competency exams, simplifying
service of charges, limiting petitions to modify or vacate orders,
profiling requirements of self-insured physicians, modifying physician
and advertising and testimonial standards; to amend the public health
law, in relation to expanding the applicability of penalties for will-
ful violations of the commissioner of health's orders; and to amend
chapter 58 of the laws of 2008, amending the elder law and other laws
relating to reimbursement to particular provider pharmacies and
prescription drug coverage, in relation to the effectiveness of
certain provisions thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision 7 of section 230 of the public health law is
2 amended by adding a new paragraph (d) to read as follows:
3 (D) (I) A COMMITTEE ON PROFESSIONAL CONDUCT, ON NOTICE TO THE LICENSEE
4 AND AFTER AFFORDING THE LICENSEE AND THE OFFICE OF PROFESSIONAL MEDICAL
5 CONDUCT AN OPPORTUNITY TO BE HEARD, SHALL HAVE THE AUTHORITY TO ORDER
6 THE LICENSEE TO COMPLY WITH RECOMMENDED REMEDIATION ARISING FROM THE
7 EXAMINATIONS IN PARAGRAPH (C) OF THIS SUBDIVISION. (II) IF A COMMITTEE
8 ON PROFESSIONAL CONDUCT WHEN CONSIDERING THE RESULTS OF A CLINICAL
9 COMPETENCY EXAMINATION PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION
10 DETERMINES THAT THE LICENSEE IS INCOMPETENT AND THAT THERE IS NO PRACTI-
11 CAL REMEDIATION FOR SUCH INCOMPETENCE, IT MAY REFER THE CASE TO THE
12 DIRECTOR OF THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT FOR THE DIREC-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09282-06-3
A. 7102--B 2
1 TOR'S CONSIDERATION OF WHETHER TO PRESENT TO AN INVESTIGATION COMMITTEE
2 PURSUANT TO SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF SUBDIVISION TEN OF
3 THIS SECTION FOR ITS CONCURRENCE ON CHARGES PURSUANT TO PARAGRAPH (B) OF
4 SUBDIVISION FIVE OF SECTION SIXTY-FIVE HUNDRED THIRTY OF THE EDUCATION
5 LAW.
6 S 2. Subdivision 5 of section 6530 of the education law, as added by
7 chapter 606 of the laws of 1991, is amended to read as follows:
8 5. (A) Practicing the profession with incompetence on more than one
9 occasion; OR
10 (B) BEING FOUND TO BE INCOMPETENT BY AN EXAMINATION WHICH HAS OCCURRED
11 PURSUANT TO PARAGRAPH (C) OF SUBDIVISION SEVEN OF SECTION TWO HUNDRED
12 THIRTY OF THE PUBLIC HEALTH LAW WHEN THE RESULTS OF THE EXAMINATION
13 DEMONSTRATE THAT THERE ARE NO REASONABLE CONDITIONS OR LIMITATIONS THAT
14 COULD BE IMPOSED UPON THE LICENSEE THAT WOULD SUFFICIENTLY MITIGATE SUCH
15 INCOMPETENCE.
16 S 3. Subdivision 15 of section 6530 of the education law, as added by
17 chapter 606 of the laws of 1991, is amended to read as follows:
18 15. (A) Failure to comply with an order issued pursuant to subdivision
19 seven, paragraph (a) of subdivision ten, and subdivision seventeen of
20 section two hundred thirty of the public health law; OR
21 (B) FAILURE TO COMPLY WITH REMEDIATION RECOMMENDATIONS ARISING FROM AN
22 EXAMINATION WHEN AN EXAMINATION HAS OCCURRED PURSUANT TO PARAGRAPH (C)
23 OF SUBDIVISION SEVEN OF SECTION TWO HUNDRED THIRTY OF THE PUBLIC HEALTH
24 LAW, WHEN SUCH COMPLIANCE HAS BEEN ORDERED BY A COMMITTEE ON PROFES-
25 SIONAL CONDUCT PURSUANT TO PARAGRAPH (D) OF SUBDIVISION SEVEN OF SECTION
26 TWO HUNDRED THIRTY OF THE PUBLIC HEALTH LAW.
27 S 4. Subparagraph (i) of paragraph (d) of subdivision 10 of section
28 230 of the public health law, as amended by chapter 477 of the laws of
29 2008, is amended to read as follows:
30 (i) A copy of the charges and the notice of the hearing shall be
31 served BY THE BOARD on the licensee EITHER (A) personally [by the board]
32 at least thirty days before the hearing[. If personal service cannot be
33 made after due diligence and such fact is certified under oath, a copy
34 of the charges and the notice of hearing shall be served]; OR (B) by
35 registered or certified mail to the licensee's [last known] CURRENT
36 RESIDENTIAL OR PRACTICE address [by the board]; MAILED at least
37 [fifteen] THIRTY days before the hearing; OR (C) BY REGISTERED OR CERTI-
38 FIED MAIL TO THE LICENSEE'S CURRENT REGISTRATION ADDRESS PURSUANT TO
39 SECTION SIXTY-FIVE HUNDRED TWO OF THE EDUCATION LAW OR THE LICENSEE'S
40 MOST RECENT MAILING ADDRESS ON FILE WITH THE NEW YORK STATE EDUCATION
41 DEPARTMENT PURSUANT TO THE NOTIFICATION REQUIREMENT SET FORTH IN SUBDI-
42 VISION FIVE OF SUCH SECTION, MAILED AT LEAST FORTY-FIVE DAYS BEFORE THE
43 HEARING; OR (D) BY FIRST CLASS MAIL TO AN ATTORNEY, LICENSED TO PRACTICE
44 IN THE STATE OF NEW YORK, WHO HAS APPEARED ON BEHALF OF THE LICENSEE IN
45 THE MATTER BEFORE THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT MAILED AT
46 LEAST THIRTY DAYS BEFORE THE HEARING. IN THE EVENT A COPY OF THE CHARG-
47 ES ARE SERVED THROUGH EITHER CLAUSES (A), (B), OR (C) OF THIS SUBPARA-
48 GRAPH, THEN THE BOARD SHALL ALSO SERVE THE ATTORNEY, LICENSED TO PRAC-
49 TICE IN THE STATE OF NEW YORK, WHO HAS REQUESTED IN WRITING SERVICE ON
50 BEHALF OF THE LICENSEE IN THE MATTER BEFORE THE OFFICE OF PROFESSIONAL
51 MEDICAL CONDUCT AT LEAST THIRTY DAYS BEFORE THE HEARING.
52 S 5. Paragraph (q) of subdivision 10 of section 230 of the public
53 health law, as added by chapter 477 of the laws of 2008, is amended to
54 read as follows:
55 (q) [At any time subsequent] SUBSEQUENT to the final conclusion of a
56 professional misconduct proceeding against a licensee, whether upon the
A. 7102--B 3
1 determination and order of a hearing committee issued pursuant to para-
2 graph (h) of this subdivision or upon the determination and order of the
3 administrative review board issued pursuant to paragraph (d) of subdivi-
4 sion four of section two hundred thirty-c of this title, the licensee
5 may file a petition with the director, requesting vacatur or modifica-
6 tion of the determination and order. IF THE DETERMINATION AND ORDER DID
7 NOT INCLUDE THE PENALTY OF LICENSE REVOCATION, THE PETITION MAY BE FILED
8 AT ANY TIME. IF THE DETERMINATION AND ORDER INCLUDED A SANCTION OF
9 LICENSE REVOCATION, THE PETITION MAY BE FILED AT ANY TIME PRIOR TO SUCH
10 TIME AS THE LICENSEE IS AUTHORIZED, PURSUANT TO SECTION SIXTY-FIVE
11 HUNDRED ELEVEN OF THE EDUCATION LAW, THE RULES OF THE BOARD OF REGENTS
12 AND THE REGULATIONS OF THE COMMISSIONER OF EDUCATION TO SEEK BOARD OF
13 REGENTS RESTORATION OF THE REVOKED LICENSE. The director shall, after
14 reviewing the matter and after consulting with department counsel,
15 determine in the reasonable exercise of his or her discretion whether
16 there is new and material evidence that was not previously available
17 which, had it been available, would likely have led to a different
18 result, or whether circumstances have occurred subsequent to the
19 original determination that warrant a reconsideration of the measure of
20 discipline. Upon determining that such evidence or circumstances exist,
21 the director shall have the authority to join the licensee in an appli-
22 cation to the chairperson of the state board for professional medical
23 conduct to vacate or modify the determination and order, as the director
24 may deem appropriate. Upon the joint application of the licensee and the
25 director, the chairperson shall have the authority to grant or deny such
26 application.
27 S 6. Section 6511 of the education law, as amended by chapter 542 of
28 the laws of 2000, is amended to read as follows:
29 S 6511. Penalties for professional misconduct. The penalties which may
30 be imposed by the board of regents on a present or former licensee found
31 guilty of professional misconduct (under the definitions and proceedings
32 prescribed in sections sixty-five hundred nine and sixty-five hundred
33 ten of this [article] SUBPART) are: (1) censure and reprimand, (2)
34 suspension of license, (a) wholly, for a fixed period of time; (b)
35 partially, until the licensee successfully completes a course of
36 retraining in the area to which the suspension applies; (c) wholly,
37 until the licensee successfully completes a course of therapy or treat-
38 ment prescribed by the regents; (3) revocation of license, (4) annulment
39 of license or registration, (5) limitation on registration or issuance
40 of any further license, (6) a fine not to exceed ten thousand dollars,
41 upon each specification of charges of which the respondent is determined
42 to be guilty, (7) a requirement that a licensee pursue a course of
43 education or training, and (8) a requirement that a licensee perform up
44 to one hundred hours of public service, in a manner and at a time and
45 place as directed by the board. The board of regents may stay such
46 penalties in whole or in part, may place the licensee on probation and
47 may restore a license which has been revoked, provided, in the case of
48 licensees subject to section two hundred thirty of the public health
49 law, notice that the board is considering such restoration is given to
50 the office of professional medical conduct at least thirty days before
51 the date on which such restoration shall be considered. Upon the recom-
52 mendation of the office of professional medical conduct, the board of
53 regents may deny such restoration. IN THE EVENT THAT THE BOARD, WHEN
54 CONSIDERING SUCH RESTORATION, ELECTS TO ACT IN A MANNER INCONSISTENT
55 WITH ANY RECOMMENDATION OF THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT,
56 THE BOARD SHALL INCLUDE AN EXPLICIT JUSTIFICATION FOR DEPARTING FROM
A. 7102--B 4
1 SUCH RECOMMENDATION IN ITS WRITTEN DETERMINATION. Any fine imposed
2 pursuant to this section or pursuant to subdivision two of section
3 sixty-five hundred ten of this [article] SUBPART may be sued for and
4 recovered in the name of the people of the state of New York in an
5 action brought by the attorney general. In such action the findings and
6 determination of the board of regents or of the violations committee
7 shall be admissible evidence and shall be conclusive proof of the
8 violation and the penalty assessed.
9 S 7. Subdivision 3 of section 2995-a of the public health law, as
10 added by chapter 542 of the laws of 2000, is amended to read as follows:
11 3. Each physician who is self-insured for professional medical malp-
12 ractice shall periodically report to the department on forms and in the
13 time and manner required by the commissioner the information specified
14 in paragraph [(f)] (E) of subdivision one of this section, except that
15 the physician shall report the dollar amount (to the extent of the
16 physician's information and belief) for each judgment, award and settle-
17 ment and not a level of significance or context.
18 S 8. Subdivision 27 of section 6530 of the education law, as added by
19 chapter 606 of the laws of 1991, is amended to read as follows:
20 27. Advertising or soliciting for patronage that is not in the public
21 interest. (a) Advertising or soliciting not in the public interest shall
22 include, but not be limited to, advertising or soliciting that: (i) is
23 false, fraudulent, deceptive, OR misleading[, sensational, or flamboy-
24 ant];
25 (ii) represents intimidation or undue pressure;
26 (iii) [uses testimonials;
27 (iv)] guarantees any service;
28 [(v)] (IV) makes any claim relating to professional services or
29 products or the costs or price therefor which cannot be substantiated by
30 the licensee, who shall have the burden of proof;
31 [(vi)] (V) makes claims of professional superiority which cannot be
32 substantiated by the licensee, who shall have the burden of proof; or
33 [(vii)] (VI) offers bonuses or inducements in any form other than a
34 discount or reduction in an established fee or price for a professional
35 service or product.
36 (b) The following shall be deemed appropriate means of informing the
37 public of the availability of professional services: (i) informational
38 advertising not contrary to the foregoing prohibitions; and
39 (ii) the advertising in a newspaper, periodical or professional direc-
40 tory or on radio [or], television, OR THE INTERNET of fixed prices, or a
41 stated range of prices, for specified routine professional services,
42 provided that if there is an additional charge for related services
43 which are an integral part of the overall service being provided by the
44 licensee, the advertisement shall so state, and provided further that
45 the advertisement indicates the period of time for which the advertised
46 prices shall be in effect.
47 (c)(i) All licensees placing advertisements shall maintain, or cause
48 to be maintained, an exact copy of each advertisement, transcript, tape
49 or video tape thereof as appropriate for the medium used, for a period
50 of one year after its last appearance. This copy shall be made avail-
51 able for inspection upon demand of the department of health;
52 (ii) A licensee shall not compensate or give anything of value to rep-
53 resentatives of the press, radio, television or other communications
54 media in anticipation of or in return for professional publicity in a
55 news item[;].
A. 7102--B 5
1 (d) [No demonstrations, dramatizations or other portrayals of profes-
2 sional practice shall be permitted in advertising on radio or tele-
3 vision;] TESTIMONIALS, DEMONSTRATIONS, DRAMATIZATIONS, OR OTHER PORTRAY-
4 ALS OF PROFESSIONAL PRACTICE ARE PERMITTED PROVIDED THAT THEY OTHERWISE
5 COMPLY WITH THE LAWS OF PROFESSIONAL MEDICAL CONDUCT AND FURTHER
6 PROVIDED THAT THE FOLLOWING CONDITIONS ARE SATISFIED:
7 (I) THE PATIENT EXPRESSLY AUTHORIZES THE PORTRAYAL IN WRITING;
8 (II) THE APPROPRIATE DISCLOSURE IS INCLUDED TO PREVENT ANY MISLEADING
9 INFORMATION OR IMAGERY AS TO THE IDENTITY OF THE PATIENT;
10 (III) REASONABLE DISCLAIMERS ARE INCLUDED AS TO ANY STATEMENTS MADE OR
11 RESULTS ACHIEVED IN A PARTICULAR MATTER;
12 (IV) THE USE OF FICTIONAL SITUATIONS OR CHARACTERS MAY BE USED IF NO
13 TESTIMONIALS ARE INCLUDED; AND
14 (V) FICTIONAL PATIENT TESTIMONIALS ARE NOT PERMITTED.
15 S 9. Section 32 of part A of chapter 58 of the laws of 2008, amending
16 the elder law and other laws relating to reimbursement to particular
17 provider pharmacies and prescription drug coverage, as amended by
18 section 26 of part A of chapter 59 of the laws of 2011, is amended to
19 read as follows:
20 S 32. This act shall take effect immediately and shall be deemed to
21 have been in full force and effect on and after April 1, 2008; provided
22 however, that sections one, six-a, nineteen, twenty, twenty-four, and
23 twenty-five of this act shall take effect July 1, 2008; provided however
24 that sections sixteen[, seventeen] and eighteen of this act shall expire
25 April 1, 2014; provided, however, that the amendments made by section
26 twenty-eight of this act shall take effect on the same date as section 1
27 of chapter 281 of the laws of 2007 takes effect; provided further, that
28 sections twenty-nine, thirty, and thirty-one of this act shall take
29 effect October 1, 2008; provided further, that section twenty-seven of
30 this act shall take effect January 1, 2009; and provided further, that
31 section twenty-seven of this act shall expire and be deemed repealed
32 March 31, 2014; and provided, further, however, that the amendments to
33 subdivision 1 of section 241 of the education law made by section twen-
34 ty-nine of this act shall not affect the expiration of such subdivision
35 and shall be deemed to expire therewith and provided that the amendments
36 to section 272 of the public health law made by section thirty of this
37 act shall not affect the repeal of such section and shall be deemed
38 repealed therewith.
39 S 10. This act shall take effect immediately; provided that sections
40 one, two, three, four, five, six and eight of this act shall take effect
41 on the sixtieth day after this act shall have become a law.
