N.Y. Education Law § 6510: Proceedings in cases of professional misconduct

§ 6510. Proceedings in cases of professional misconduct. In cases of

professional misconduct the proceedings shall be as follows:

1. Preliminary procedures.

a. Complaint. A complaint of a licensee's professional misconduct may

be made by any person to the education department.

b. Investigation. The department shall investigate each complaint

which alleges conduct constituting professional misconduct. The results

of the investigation shall be referred to the professional conduct

officer designated by the board of regents pursuant to section

sixty-five hundred six of this article. If such officer decides that

there is not substantial evidence of professional misconduct or that

further proceedings are not warranted, no further action shall be taken.

If such officer, after consultation with a professional member of the

applicable state board for the profession, determines that there is

substantial evidence of professional misconduct, and that further

proceedings are warranted, such proceedings shall be conducted pursuant

to this section. If the complaint involves a question of professional

expertise, then such officer may seek, and if so shall obtain, the

concurrence of at least two members of a panel of three members of the

applicable board. The department shall cause a preliminary review of

every report made to the department pursuant to section twenty-eight

hundred three-e as added by chapter eight hundred sixty-six of the laws

of nineteen hundred eighty and sections forty-four hundred five-b of the

public health law and three hundred fifteen of the insurance law, to

determine if such report reasonably appears to reflect conduct

warranting further investigation pursuant to this subdivision.

b-1. Legally protected health activities. The department shall not

charge a licensee, acting within their scope of practice, with

professional misconduct as defined in section sixty-five hundred nine of

this subarticle, or cause a complaint made by any person to the

department to be investigated beyond a preliminary review, solely on the

basis that such licensee engaged in legally protected health activity,

as defined by section 570.17 of the criminal procedure law. Such

preliminary review shall determine if such report reasonably appears to

reflect conduct warranting further investigation pursuant to this

paragraph.

c. Charges. In all disciplinary proceedings other than those

terminated by an administrative warning pursuant to paragraph a of

subdivision two of this section, the department shall prepare the

charges. The charges shall state the alleged professional misconduct and

shall state concisely the material facts but not the evidence by which

the charges are to be proved.

d. Records and reports as public information. In all disciplinary

proceedings brought pursuant to this section or in any voluntary

settlement of a complaint between the licensee and the department, the

department shall notify the licensee in writing that the record and

reports of such disciplinary proceeding or of such voluntary settlement

shall be considered matters of public information unless specifically

excepted in this article, or in any other law or applicable rule or

regulation.

e. Service of charges and notice of hearing. In order to commence

disciplinary proceedings under this title, service of a copy of the

charges and notice of hearing must be completed twenty days before the

date of the hearing if by personal delivery, and must be completed

twenty-five days before the date of the hearing if by any other method.

f. Service of charges and of notice of hearing upon a natural person.

Personal service of the charges and notice of any hearing pursuant to

subdivision two or three of this section upon a natural person shall be

made by any of the following methods:

(1) by delivery within the state to the person to be served; or

(2) by delivery within the state to a person of suitable age and

discretion at the actual place of business, dwelling place or usual

place of abode of the person to be served and either: (i) by mailing by

certified mail, return receipt requested, to the person to be served at

his or her last known residence, or (ii) by mailing by certified mail,

return receipt requested, to the person to be served at his or her last

address on file with the division of licensing services of the

department in an envelope bearing the legend "personal and

confidential," provided that, in either case: such delivery and mailing

shall be effected within twenty days of each other; service pursuant to

this subparagraph shall be complete ten days after either the delivery,

or the mailing, whichever is later; and proof of service shall, among

other things, identify such person of suitable age and discretion and

state the date, time and place of such service; or

(3) where service under subparagraphs one and two of this paragraph

cannot be made with due diligence, a copy of the charges and the notice

of hearing shall be served by certified mail, return receipt requested,

to the person's last known address on file with the division of

licensing services of the department or by affixing the changes and the

notice of hearing to the door of either the actual place of business,

dwelling place or usual place of abode of the person to be served;

provided that: service pursuant to this subparagraph shall be complete

ten days after such mailing, and proof of service shall set forth the

department's efforts of due diligence.

g. Service of charges and notice of hearing outside of the state. A

natural person subject to the jurisdiction of the department may be

served with a copy of the charges and the notice of hearing outside of

the state in the same manner as service is made within the state, by any

person authorized to make service within the state of New York or by any

person authorized to make service by the laws of the state, territory,

possession or country in which service is made or by any duly qualified

attorney or equivalent in such jurisdiction.

2. Expedited procedures.

a. Violations. Violations involving professional misconduct of a minor

or technical nature may be resolved by expedited procedures as provided

in paragraph b or c of this subdivision. For purposes of this

subdivision, violations of a minor or technical nature shall include,

but shall not be limited to, isolated instances of violations concerning

professional advertising or record keeping, and other isolated

violations which do not directly affect or impair the public health,

welfare or safety. The board of regents shall make recommendations to

the legislature on or before June first, nineteen hundred eighty-one,

for the further definition of violations of a minor or technical nature.

The initial instance of any violation of a minor or technical nature may

be resolved by the issuance of an administrative warning pursuant to

paragraph b of this subdivision. Subsequent instances of similar

violations of a minor or technical nature within a period of three years

may be resolved by the procedure set forth in paragraph c of this

subdivision.

b. Administrative warning. If a professional conduct officer, after

consultation with a professional member of the state board, determines

that there is substantial evidence of professional misconduct but that

it is an initial violation of a minor or technical nature which would

not justify the imposition of a more severe disciplinary penalty, the

matter may be terminated by the issuance of an administrative warning.

Such warnings shall be confidential and shall not constitute an

adjudication of guilt or be used as evidence that the licensee is guilty

of the alleged misconduct. However, in the event of a further allegation

of similar misconduct by the same licensee, the matter may be reopened

and further proceedings instituted as provided in this section.

c. Determination of penalty on uncontested minor violations. If a

professional conduct officer, after consultation with a professional

member of the state board, determines that there is substantial evidence

of a violation of a minor or technical nature, and of a nature

justifying a penalty as specified in this paragraph, the department may

prepare and serve charges either by personal service or by certified

mail, return receipt requested. Such charges shall include a statement

that unless an answer is received within twenty days denying the

charges, the matter shall be referred to a violations committee

consisting of at least three members of the state board for the

profession, at least one of whom shall be a public representative, for

determination. The violations panel shall be appointed by the executive

secretary of the state board. The licensee shall be given at least

fifteen days notice of the time and place of the meeting of the

violations committee and shall have the right to appear in person and by

an attorney and to make a statement to the committee in mitigation or

explanation of the misconduct. The department may appear and make a

statement in support of its position. The violations committee may issue

a censure and reprimand, and in addition, or in the alternative, may

impose a fine not to exceed five hundred dollars for each specification

of minor, or technical misconduct. If the fine is not paid within three

months the matter may be reopened and shall be subject to the hearing

and regents decision procedures of this section. The determination of

the panel shall be final and shall not be subject to the regents

decision procedures of this section. If an answer is filed denying the

charges, the matter shall be processed as provided in subdivision three

of this section.

d. Convictions of crimes or administrative violations. In cases of

professional misconduct based solely upon a violation of subdivision

five of section sixty-five hundred nine of this article, the

professional conduct officer may prepare and serve the charges and may

refer the matter directly to a regents review committee for its review

and report of its findings, determination as to guilt, and

recommendation as to the measure of discipline to be imposed. In such

cases the notice of hearing shall state that the licensee may file a

written answer, brief and affidavits; that the licensee may appear

personally before the regents review committee, may be represented by

counsel and may present evidence or sworn testimony on behalf of the

licensee, and the notice may contain such other information as may be

considered appropriate by the department. The department may also

present evidence or sworn testimony at the hearing. A stenographic

record of the hearing shall be made. Such evidence or sworn testimony

offered at the meeting of the regents review committee shall be limited

to evidence and testimony relating to the nature and severity of the

penalty to be imposed upon the licensee. The presiding officer at the

meeting of the regents review committee may, in his or her discretion,

reasonably limit the number of witnesses whose testimony will be

received and the length of time any witness will be permitted to

testify. In lieu of referring the matter to the board of regents, the

regents review committee may refer any such matter for further

proceedings pursuant to paragraph b or c of this subdivision or

subdivision three of this section.

3. Adversary proceedings. Contested disciplinary proceedings and other

disciplinary proceedings not resolved pursuant to subdivision two of

this section shall be tried before a hearing panel of the appropriate

state board as provided in this subdivision.

a. Notice of hearing. The department shall set the time and place of

the hearing and shall prepare the notice of hearing. The notice of

hearing shall state (1) the time and place of the hearing, (2) that the

licensee may file a written answer to the charges prior to the hearing,

(3) that the licensee may appear personally at the hearing and may be

represented by counsel, (4) that the licensee shall have the right to

produce witnesses and evidence in his behalf, to cross-examine witnesses

and examine evidence produced against him, and to issue subpoenas in

accordance with the provisions of the civil practice law and rules, (5)

that a stenographic record of the hearing will be made, and (6) such

other information as may be considered appropriate by the department.

b. Hearing panel. The hearing shall be conducted by a panel of three

or more members, at least two of whom shall be members of the applicable

state board for the profession, and at least one of whom shall be a

public representative who is a member of the applicable state board or

of the state board for another profession licensed pursuant to this

title. The executive secretary for the applicable state board shall

appoint the panel and shall designate its chairperson. After the

commencement of a hearing, no panel member shall be replaced. A

determination by the administrative officer of a need to disqualify or

remove any panel member will result in the disqualification or removal

of the panel and cause a new panel to be appointed. In addition to said

panel members, the department shall designate an administrative officer,

admitted to practice as an attorney in the state of New York, who shall

have the authority to rule on all motions, procedures and other legal

objections and shall draft a report for the hearing panel which shall be

subject to the approval of and signature by the panel chairperson on

behalf of the panel. The administrative officer shall not be entitled to

a vote.

c. Conduct of hearing. The evidence in support of the charges shall be

presented by an attorney for the department. The licensee shall have the

rights required to be stated in the notice of hearing. The panel shall

not be bound by the rules of evidence, but its determination of guilt

shall be based on a preponderance of the evidence. A hearing which has

been initiated shall not be discontinued because of the death or

incapacity to serve of one member of the hearing panel.

d. Results of hearing. The hearing panel shall render a written report

which shall include (1) findings of fact, (2) a determination of guilty

or not guilty on each charge, and (3) in the event of a determination of

guilty, a recommendation of the penalty to be imposed. For the panel to

make a determination of guilty, a minimum of two of the voting members

of the panel must vote for such a determination. A copy of the report of

the hearing panel shall be transmitted to the licensee.

4. Regents decision procedures.

a. Regents review committee. The transcript and report of the hearing

panel shall be reviewed at a meeting by a regents review committee

appointed by the board of regents. The regents review committee shall

consist of three members, at least one of whom shall be a regent.

b. Regents review committee meetings. The review shall be based on the

transcript and the report of the hearing panel. The licensee may appear

at the meeting, and the regents review committee may require the

licensee to appear. The licensee may be represented by counsel. The

department shall notify the licensee at least seven days before the

meeting (1) of the time and place of the meeting, (2) of his right to

appear, (3) of his right to be represented by counsel, (4) whether or

not he is required to appear, and (5) of such other information as may

be considered appropriate. After the meeting, the regents review

committee shall transmit a written report of its review to the board of

regents. In cases referred directly to the regents review committee

pursuant to paragraph d of subdivision two of this section, the review

shall be based upon the charges, the documentary evidence submitted by

the department, any answer, affidavits or brief the licensee may wish to

submit, and any evidence or sworn testimony presented by the licensee or

the department at the hearing, pursuant to the procedures described by

paragraph d of subdivision two of this section.

c. Regents decision and order. The board of regents (1) shall consider

the transcript, the report of the hearing panel, and the report of the

regents review committee, (2) shall decide whether the licensee is

guilty or not guilty on each charge, (3) shall decide what penalties, if

any, to impose as prescribed in section sixty-five hundred eleven of

this article, and (4) shall issue an order to carry out its decisions.

Such decisions shall require the affirmative vote of a majority of the

members of the board of regents. If the board of regents disagrees with

the hearing panel's determination of not guilty, it shall remand the

matter to the original panel for reconsideration or to a new panel for a

new hearing. The panel's determination of not guilty on reconsideration

or a new hearing shall be final. The order shall be served upon the

licensee personally or by certified mail to the licensee's last known

address and such service shall be effective as of the date of the

personal service or five days after mailing by certified mail. The

licensee shall deliver to the department the license and registration

certificate which has been revoked, annulled, suspended, or surrendered

within five days after the effective date of the service of the order.

If the license or registration certificate is lost, misplaced or its

whereabouts is otherwise unknown, the licensee shall submit an affidavit

to that effect, and shall deliver such license or certificate to the

department when located.

5. Court review procedures. The decisions of the board of regents may

be reviewed pursuant to the proceedings under article seventy-eight of

the civil practice law and rules. Such proceedings shall be returnable

before the appellate division of the third judicial department, and such

decisions shall not be stayed or enjoined except upon application to

such appellate division after notice to the department and to the

attorney general and upon a showing that the petitioner has a

substantial likelihood of success.

5-a. At any time, if the professional conduct officer or his or her

designee designated to investigate a complaint of professional

misconduct of a licensed health care provider or licensed mental health

care provider determines that there is a reasonable belief that an act

that constitutes a sex offense identified in paragraph (h) of

subdivision three of section 130.05 of the penal law has been committed

by the licensee against a client or patient during a treatment session,

consultation, interview, or examination, the professional conduct

officer or the office of professional discipline shall notify the

appropriate law enforcement official or authority.

6. The provisions of subdivisions one through four of this section

shall not be applicable to proceedings in cases of professional

misconduct involving the medical profession, except as provided in

paragraph m of subdivision ten of section two hundred thirty of the

public health law.

7. Notwithstanding any other provision of law, persons who assist the

department as consultants or expert witnesses in the investigation or

prosecution of alleged professional misconduct, licensure matters,

restoration proceedings, or criminal prosecutions for unauthorized

practice, shall not be liable for damages in any civil action or

proceeding as a result of such assistance, except upon proof of actual

malice. The attorney general shall defend such persons in any such

action or proceeding, in accordance with section seventeen of the public

officers law.

8. The files of the department relating to the investigation of

possible instances of professional misconduct, or the unlawful practice

of any profession licensed by the board of regents, or the unlawful use

of a professional title or the moral fitness of an applicant for a

professional license or permit, shall be confidential and not subject to

disclosure at the request of any person, except upon the order of a

court in a pending action or proceeding. The provisions of this

subdivision shall not apply to documents introduced in evidence at a

hearing held pursuant to this chapter and shall not prevent the

department from sharing information concerning investigations with other

duly authorized public agencies responsible for professional regulation

or criminal prosecution.

9. A disciplinary proceeding under subdivision three or four of this

section shall be treated in the same manner as an action or proceeding

in supreme court for the purpose of any claim by counsel of actual

engagement.