Bill Text: NY A07102 | 2013-2014 | General Assembly | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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-Introduced.html
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-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 7102 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 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: 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- 13 TOR'S CONSIDERATION OF WHETHER TO PRESENT TO AN INVESTIGATION COMMITTEE 14 PURSUANT TO SUBPARAGRAPH (IV) OF PARAGRAPH (A) OF SUBDIVISION TEN OF 15 THIS SECTION FOR ITS CONCURRENCE ON CHARGES PURSUANT TO PARAGRAPH (B) OF 16 SUBDIVISION FIVE OF SECTION SIXTY-FIVE HUNDRED THIRTY OF THE EDUCATION 17 LAW. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD09282-03-3 A. 7102 2 1 S 2. Subdivision 5 of section 6530 of the education law, as added by 2 chapter 606 of the laws of 1991, is amended to read as follows: 3 5. (A) Practicing the profession with incompetence on more than one 4 occasion; OR 5 (B) BEING FOUND TO BE INCOMPETENT BY AN EXAMINATION WHICH HAS OCCURRED 6 PURSUANT TO PARAGRAPH (C) OF SUBDIVISION SEVEN OF SECTION TWO HUNDRED 7 THIRTY OF THE PUBLIC HEALTH LAW WHEN THERE IS NO PRACTICAL REMEDIATION 8 FOR SUCH INCOMPETENCE. 9 S 3. Subdivision 15 of section 6530 of the education law, as added by 10 chapter 606 of the laws of 1991, is amended to read as follows: 11 15. (A) Failure to comply with an order issued pursuant to subdivision 12 seven, paragraph (a) of subdivision ten, and subdivision seventeen of 13 section two hundred thirty of the public health law; OR 14 (B) FAILURE TO COMPLY WITH REMEDIATION RECOMMENDATIONS ARISING FROM AN 15 EXAMINATION WHEN AN EXAMINATION HAS OCCURRED PURSUANT TO PARAGRAPH (C) 16 OF SUBDIVISION SEVEN OF SECTION TWO HUNDRED THIRTY OF THE PUBLIC HEALTH 17 LAW, WHEN SUCH COMPLIANCE HAS BEEN ORDERED BY A COMMITTEE ON PROFES- 18 SIONAL CONDUCT PURSUANT TO PARAGRAPH (D) OF SUBDIVISION SEVEN OF SECTION 19 TWO HUNDRED THIRTY OF THE PUBLIC HEALTH LAW. 20 S 4. Subparagraph (i) of paragraph (d) of subdivision 10 of section 21 230 of the public health law, as amended by chapter 477 of the laws of 22 2008, is amended to read as follows: 23 (i) A copy of the charges and the notice of the hearing shall be 24 served BY THE BOARD on the licensee EITHER (A) personally [by the board] 25 at least thirty days before the hearing[. If personal service cannot be 26 made after due diligence and such fact is certified under oath, a copy 27 of the charges and the notice of hearing shall be served]; OR (B) by 28 registered or certified mail to the licensee's [last known] CURRENT 29 RESIDENTIAL OR PRACTICE address [by the board]; MAILED at least 30 [fifteen] THIRTY days before the hearing; OR (C) BY REGISTERED OR CERTI- 31 FIED MAIL TO THE LICENSEE'S CURRENT REGISTRATION ADDRESS PURSUANT TO 32 SECTION SIXTY-FIVE HUNDRED TWO OF THE EDUCATION LAW OR THE LICENSEE'S 33 MOST RECENT MAILING ADDRESS ON FILE WITH THE NEW YORK STATE EDUCATION 34 DEPARTMENT PURSUANT TO THE NOTIFICATION REQUIREMENT SET FORTH IN SUBDI- 35 VISION FIVE OF SUCH SECTION, MAILED AT LEAST FORTY-FIVE DAYS BEFORE THE 36 HEARING; OR (D) BY FIRST CLASS MAIL TO AN ATTORNEY, LICENSED TO PRACTICE 37 IN THE STATE OF NEW YORK, WHO HAS APPEARED ON BEHALF OF THE LICENSEE IN 38 THE MATTER BEFORE THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT MAILED AT 39 LEAST THIRTY DAYS BEFORE THE HEARING. 40 S 5. Paragraph (q) of subdivision 10 of section 230 of the public 41 health law, as added by chapter 477 of the laws of 2008, is amended to 42 read as follows: 43 (q) [At any time subsequent] SUBSEQUENT to the final conclusion of a 44 professional misconduct proceeding against a licensee, whether upon the 45 determination and order of a hearing committee issued pursuant to para- 46 graph (h) of this subdivision or upon the determination and order of the 47 administrative review board issued pursuant to paragraph (d) of subdivi- 48 sion four of section two hundred thirty-c of this title, the licensee 49 may file a petition with the director, requesting vacatur or modifica- 50 tion of the determination and order. IF THE DETERMINATION AND ORDER DID 51 NOT INCLUDE THE PENALTY OF LICENSE REVOCATION, THE PETITION MAY BE FILED 52 AT ANY TIME. IF THE DETERMINATION AND ORDER INCLUDED A SANCTION OF 53 LICENSE REVOCATION, THE PETITION MAY BE FILED AT ANY TIME PRIOR TO SUCH 54 TIME AS THE LICENSEE IS AUTHORIZED, PURSUANT TO SECTION SIXTY-FIVE 55 HUNDRED ELEVEN OF THE EDUCATION LAW, THE RULES OF THE BOARD OF REGENTS 56 AND THE REGULATIONS OF THE COMMISSIONER OF EDUCATION TO SEEK BOARD OF A. 7102 3 1 REGENTS RESTORATION OF THE REVOKED LICENSE. The director shall, after 2 reviewing the matter and after consulting with department counsel, 3 determine in the reasonable exercise of his or her discretion whether 4 there is new and material evidence that was not previously available 5 which, had it been available, would likely have led to a different 6 result, or whether circumstances have occurred subsequent to the 7 original determination that warrant a reconsideration of the measure of 8 discipline. Upon determining that such evidence or circumstances exist, 9 the director shall have the authority to join the licensee in an appli- 10 cation to the chairperson of the state board for professional medical 11 conduct to vacate or modify the determination and order, as the director 12 may deem appropriate. Upon the joint application of the licensee and the 13 director, the chairperson shall have the authority to grant or deny such 14 application. 15 S 6. Section 6511 of the education law, as amended by chapter 542 of 16 the laws of 2000, is amended to read as follows: 17 S 6511. Penalties for professional misconduct. The penalties which may 18 be imposed by the board of regents on a present or former licensee found 19 guilty of professional misconduct (under the definitions and proceedings 20 prescribed in sections sixty-five hundred nine and sixty-five hundred 21 ten of this [article] SUBPART) are: (1) censure and reprimand, (2) 22 suspension of license, (a) wholly, for a fixed period of time; (b) 23 partially, until the licensee successfully completes a course of 24 retraining in the area to which the suspension applies; (c) wholly, 25 until the licensee successfully completes a course of therapy or treat- 26 ment prescribed by the regents; (3) revocation of license, (4) annulment 27 of license or registration, (5) limitation on registration or issuance 28 of any further license, (6) a fine not to exceed ten thousand dollars, 29 upon each specification of charges of which the respondent is determined 30 to be guilty, (7) a requirement that a licensee pursue a course of 31 education or training, and (8) a requirement that a licensee perform up 32 to one hundred hours of public service, in a manner and at a time and 33 place as directed by the board. The board of regents may stay such 34 penalties in whole or in part, may place the licensee on probation and 35 may restore a license which has been revoked, provided, in the case of 36 licensees subject to section two hundred thirty of the public health 37 law, notice that the board is considering such restoration is given to 38 the office of professional medical conduct at least thirty days before 39 the date on which such restoration shall be considered. Upon the recom- 40 mendation of the office of professional medical conduct, the board of 41 regents may deny such restoration. IN THE EVENT THAT THE BOARD, WHEN 42 CONSIDERING SUCH RESTORATION, ELECTS TO ACT IN A MANNER INCONSISTENT 43 WITH ANY RECOMMENDATION OF THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT, 44 THE BOARD SHALL INCLUDE AN EXPLICIT JUSTIFICATION FOR DEPARTING FROM 45 SUCH RECOMMENDATION IN ITS WRITTEN DETERMINATION. Any fine imposed 46 pursuant to this section or pursuant to subdivision two of section 47 sixty-five hundred ten of this [article] SUBPART may be sued for and 48 recovered in the name of the people of the state of New York in an 49 action brought by the attorney general. In such action the findings and 50 determination of the board of regents or of the violations committee 51 shall be admissible evidence and shall be conclusive proof of the 52 violation and the penalty assessed. 53 S 7. Subdivision 3 of section 2995-a of the public health law, as 54 added by chapter 542 of the laws of 2000, is amended to read as follows: 55 3. Each physician who is self-insured for professional medical malp- 56 ractice shall periodically report to the department on forms and in the A. 7102 4 1 time and manner required by the commissioner the information specified 2 in paragraph [(f)] (E) of subdivision one of this section, except that 3 the physician shall report the dollar amount (to the extent of the 4 physician's information and belief) for each judgment, award and settle- 5 ment and not a level of significance or context. 6 S 8. Subdivision 27 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 27. Advertising or soliciting for patronage that is not in the public 9 interest. (a) Advertising or soliciting not in the public interest shall 10 include, but not be limited to, advertising or soliciting that: (i) is 11 false, fraudulent, deceptive, OR misleading[, sensational, or flamboy- 12 ant]; 13 (ii) represents intimidation or undue pressure; 14 (iii) [uses testimonials; 15 (iv)] guarantees any service; 16 [(v)] (IV) makes any claim relating to professional services or 17 products or the costs or price therefor which cannot be substantiated by 18 the licensee, who shall have the burden of proof; 19 [(vi)] (V) makes claims of professional superiority which cannot be 20 substantiated by the licensee, who shall have the burden of proof; or 21 [(vii)] (VI) offers bonuses or inducements in any form other than a 22 discount or reduction in an established fee or price for a professional 23 service or product. 24 (b) The following shall be deemed appropriate means of informing the 25 public of the availability of professional services: (i) informational 26 advertising not contrary to the foregoing prohibitions; and 27 (ii) the advertising in a newspaper, periodical or professional direc- 28 tory or on radio [or], television, OR THE INTERNET of fixed prices, or a 29 stated range of prices, for specified routine professional services, 30 provided that if there is an additional charge for related services 31 which are an integral part of the overall service being provided by the 32 licensee, the advertisement shall so state, and provided further that 33 the advertisement indicates the period of time for which the advertised 34 prices shall be in effect. 35 (c)(i) All licensees placing advertisements shall maintain, or cause 36 to be maintained, an exact copy of each advertisement, transcript, tape 37 or video tape thereof as appropriate for the medium used, for a period 38 of one year after its last appearance. This copy shall be made avail- 39 able for inspection upon demand of the department of health; 40 (ii) A licensee shall not compensate or give anything of value to rep- 41 resentatives of the press, radio, television or other communications 42 media in anticipation of or in return for professional publicity in a 43 news item[;]. 44 (d) [No demonstrations, dramatizations or other portrayals of profes- 45 sional practice shall be permitted in advertising on radio or tele- 46 vision;] TESTIMONIALS, DEMONSTRATIONS, DRAMATIZATIONS, OR OTHER PORTRAY- 47 ALS OF PROFESSIONAL PRACTICE ARE PERMITTED PROVIDED THAT THEY OTHERWISE 48 COMPLY WITH THE LAWS OF PROFESSIONAL MEDICAL CONDUCT AND FURTHER 49 PROVIDED THAT THE FOLLOWING CONDITIONS ARE SATISFIED: 50 (I) THE PATIENT EXPRESSLY AUTHORIZES THE PORTRAYAL IN WRITING; 51 (II) THE APPROPRIATE DISCLOSURE IS INCLUDED TO PREVENT ANY MISLEADING 52 INFORMATION OR IMAGERY AS TO THE IDENTITY OF THE PATIENT; 53 (III) REASONABLE DISCLAIMERS ARE INCLUDED AS TO ANY STATEMENTS MADE OR 54 RESULTS ACHIEVED IN A PARTICULAR MATTER; 55 (IV) THE USE OF FICTIONAL SITUATIONS OR CHARACTERS MAY BE USED IF NO 56 TESTIMONIALS ARE INCLUDED; AND A. 7102 5 1 (V) FICTIONAL PATIENT TESTIMONIALS ARE NOT PERMITTED. 2 S 9. Subdivision 2 of section 12-b of the public health law, as 3 amended by section 17 of part A of chapter 58 of the laws of 2008, is 4 amended to read as follows: 5 2. A person who wilfully violates any provision of this chapter, or 6 any regulation lawfully made or established by any public officer or 7 board under authority of this chapter, OR ANY LAWFUL ORDER PRESCRIBED BY 8 THE COMMISSIONER OF HEALTH, the punishment for violating which is not 9 otherwise prescribed by this chapter or any other law, is punishable by 10 imprisonment not exceeding one year, or by a fine not exceeding ten 11 thousand dollars or by both. Effective on and after April first, two 12 thousand eight the comptroller is hereby authorized and directed to 13 deposit amounts collected in excess of two thousand dollars per 14 violation to the patient safety center account to be used for purposes 15 of the patient safety center created by title two of article twenty- 16 nine-D of this chapter. 17 S 10. Section 32 of part A of chapter 58 of the laws of 2008, amend- 18 ing the elder law and other laws relating to reimbursement to particular 19 provider pharmacies and prescription drug coverage, as amended by 20 section 26 of part A of chapter 59 of the laws of 2011, is amended to 21 read as follows: 22 S 32. This act shall take effect immediately and shall be deemed to 23 have been in full force and effect on and after April 1, 2008; provided 24 however, that sections one, six-a, nineteen, twenty, twenty-four, and 25 twenty-five of this act shall take effect July 1, 2008; provided however 26 that sections sixteen[, seventeen] and eighteen of this act shall expire 27 April 1, 2014; provided, however, that the amendments made by section 28 twenty-eight of this act shall take effect on the same date as section 1 29 of chapter 281 of the laws of 2007 takes effect; provided further, that 30 sections twenty-nine, thirty, and thirty-one of this act shall take 31 effect October 1, 2008; provided further, that section twenty-seven of 32 this act shall take effect January 1, 2009; and provided further, that 33 section twenty-seven of this act shall expire and be deemed repealed 34 March 31, 2014; and provided, further, however, that the amendments to 35 subdivision 1 of section 241 of the education law made by section twen- 36 ty-nine of this act shall not affect the expiration of such subdivision 37 and shall be deemed to expire therewith and provided that the amendments 38 to section 272 of the public health law made by section thirty of this 39 act shall not affect the repeal of such section and shall be deemed 40 repealed therewith. 41 S 11. This act shall take effect immediately; provided that sections 42 one, two, three, four, five, six and eight of this act shall take effect 43 on the sixtieth day after this act shall have become a law.