N.Y. Public Health Law § 230: State board for professional medical conduct; proceedings

§ 230. State board for professional medical conduct; proceedings. 1. A

state board for professional medical conduct is hereby created in the

department in matters of professional misconduct as defined in sections

sixty-five hundred thirty and sixty-five hundred thirty-one of the

education law. Its physician members shall be appointed by the

commissioner at least eighty-five percent of whom shall be from among

nominations submitted by the medical society of the state of New York,

the New York state osteopathic society, the New York academy of

medicine, county medical societies, statewide specialty societies

recognized by the council of medical specialty societies, and the

hospital association of New York state. Its lay members shall be

appointed by the commissioner with the approval of the governor. The

board of regents shall also appoint twenty percent of the members of the

board. Not less than sixty-seven percent of the members appointed by the

board of regents shall be physicians. Not less than eighty-five percent

of the physician members appointed by the board of regents shall be from

among nominations submitted by the medical society of the state of New

York, the New York state osteopathic society, the New York academy of

medicine, county medical societies, statewide medical societies

recognized by the council of medical specialty societies, and the

hospital association of New York state. Any failure to meet the

percentage thresholds stated in this subdivision shall not be grounds

for invalidating any action by or on authority of the board for

professional medical conduct or a committee or a member thereof. The

board for professional medical conduct shall consist of not fewer than

eighteen physicians licensed in the state for at least five years, two

of whom shall be doctors of osteopathy, not fewer than two of whom shall

be physicians who dedicate a significant portion of their practice to

the use of non-conventional medical treatments who may be nominated by

New York state medical associations dedicated to the advancement of such

treatments, at least one of whom shall have expertise in palliative

care, and not fewer than seven lay members. An executive secretary shall

be appointed by the chairperson and shall be a licensed physician. Such

executive secretary shall not be a member of the board, shall hold

office at the pleasure of, and shall have the powers and duties assigned

and the annual salary fixed by, the chairperson. The chairperson shall

also assign such secretaries or other persons to the board as are

necessary.

2. Members of such board shall be appointed by the commissioner or the

board of regents for three year terms except that the terms of those

first appointed shall be arranged so that as nearly as possible an equal

number shall terminate annually. A vacancy occurring during a term shall

be filled by an appointment by the commissioner or the board of regents

for the unexpired term.

3. Each member of the board shall receive a certificate of

appointment, shall before beginning his term of office file a

constitutional oath of office with the secretary of state, shall receive

up to one hundred fifty dollars as prescribed by the commissioner for

each day devoted to board work not to exceed ten thousand dollars in any

one year, and shall be reimbursed for his necessary expenses. Any member

may be removed from the board at the pleasure of the commissioner.

4. The governor shall annually designate from the members of the board

a chairperson who shall be a physician and vice-chairperson. The board

shall meet upon call of the chairperson, and may adopt bylaws consistent

with this section. A quorum for the transaction of business by the board

shall be a majority of members.

5. From among the members of the board two or more committees on

professional conduct shall be appointed by the board chairperson.

6. Any committee on professional conduct appointed pursuant to the

provisions of this section shall consist of two physicians and one lay

member.

7. (a) The board, by its committees on professional conduct, shall

conduct disciplinary proceedings as prescribed in this section and shall

assist in other professional conduct matters as prescribed by the

chairperson. In this section the term "licensee" shall mean physician,

including a physician practicing under a limited permit, a medical

resident, physician's assistant and specialist's assistant. A committee

on professional conduct, on notice to the licensee and after affording

the licensee, the office of professional medical conduct, and their

attorneys an opportunity to be heard, shall have the authority to direct

a licensee to submit to a medical or psychiatric examination when the

committee has reason to believe the licensee may be impaired by alcohol,

drugs, physical disability or mental disability. The committee, with the

advice of the licensee and the office of professional medical conduct,

shall designate the physician who will conduct the examination. The

results of the examination shall be provided by the examining physician

to the committee, the licensee, and the office of professional medical

conduct. The licensee may also obtain a physician to conduct an

examination the results of which shall be provided to the committee and

the office of professional medical conduct.

(b) A committee on professional conduct may sit as an administrative

tribunal for the purpose of issuing an order authorizing the office of

professional medical conduct to obtain medical records or other

protected health information pertaining to the licensee's physical or

mental condition when the committee has reason to believe that the

licensee may be impaired by alcohol, drugs, physical disability or

mental disability and that the records or information may be relevant to

the alleged impairment or that information regarding the licensee's

medical condition may be relevant to an inquiry into a report of a

communicable disease, as defined by the state sanitary code or HIV/AIDS.

No such order shall be issued except on notice to the licensee and after

affording the licensee and the office of professional medical conduct an

opportunity to be heard.

(c) A committee on professional conduct, on notice to the licensee and

after affording the licensee and the office of professional medical

conduct an opportunity to be heard, shall have the authority to direct a

licensee to submit to a clinical competency examination when the

committee has reason to believe that the licensee has practiced with

incompetence, generally in his or her medical practice or in a specific

area of his or her medical practice. The committee, with the advice of

the licensee and the office of professional medical conduct, shall

designate the facility or institution to conduct the clinical competency

examination. The results of the clinical competency examination shall be

provided by the facility or institution to the committee, the licensee

and the office of professional medical conduct. The licensee may also

obtain an accredited facility or institution to conduct a clinical

competency examination, the results of which shall be provided to the

committee and the office of professional medical conduct.

8. Notwithstanding any other provision of law, no member of a

committee on professional conduct nor an employee of the board shall be

liable in damages to any person for any action taken or recommendation

made by him within the scope of his function as a member of such

committee or employee provided that (a) such member or employee has

taken action or made recommendations within the scope of his function

and without malice, and (b) in the reasonable belief after reasonable

investigation that the act or recommendation was warranted, based upon

the facts disclosed.

9. Notwithstanding any other provisions of law, neither the

proceedings nor the records of any such committee shall be subject to

disclosure under article thirty-one of the civil practice law and rules

except as hereinafter provided. No person in attendance at a meeting of

any such committee shall be required to testify as to what transpired

thereat. The prohibition relating to discovery of testimony shall not

apply to the statements made by any person in attendance at such a

meeting who is a party to an action or proceeding the subject matter of

which was reviewed at such meeting.

9-a. At any time, if the board for professional medical conduct or the

office of professional medical conduct determines that there is a

reasonable belief that an act or omission that constitutes a crime under

the law of the state of New York, any other state, or the United States

has been committed by the licensee, the board for professional medical

conduct or office of professional medical conduct shall notify the

appropriate law enforcement official or authority except when the act or

omission constitutes legally protected health activity, as defined by

section 570.17 of the criminal procedure law.

9-b. Neither the board for professional medical conduct nor the office

of professional medical conduct shall charge a licensee with misconduct

as defined in sections sixty-five hundred thirty and sixty-five hundred

thirty-one of the education law, or cause a report made to the director

of such office to be investigated beyond a preliminary review as set

forth in clause (A) of subparagraph (i) of paragraph (a) of subdivision

ten of this section, where such report is determined to be based solely

upon the recommendation or provision of a treatment modality to a

particular patient by such licensee that is not universally accepted by

the medical profession, including but not limited to, varying modalities

used in the treatment of Lyme disease and other tick-borne diseases.

When a licensee, acting in accordance with paragraph e of subdivision

four of section sixty-five hundred twenty-seven of the education law,

recommends or provides a treatment modality that effectively treats

human disease, pain, injury, deformity or physical condition for which

the licensee is treating a patient, the recommendation or provision of

that modality to a particular patient shall not, by itself, constitute

professional misconduct. The licensee shall otherwise abide by all other

applicable professional requirements.

9-c. (a) Neither the board for professional medical conduct nor the

office of professional medical conduct shall charge a licensee, acting

within their scope of practice, with misconduct as defined in sections

sixty-five hundred thirty and sixty-five hundred thirty-one of the

education law, or cause a report made to the director of such office to

be investigated beyond a preliminary review as set forth in clause (A)

of subparagraph (i) of paragraph (a) of subdivision ten of this section,

where such report is determined to be based solely upon any legally

protected health activity, as defined by section 570.17 of the criminal

procedure law.

(b) When a licensee, acting within their scope of practice, and in

accordance with paragraph e of subdivision four of section sixty-five

hundred twenty-seven of the education law, engages in legally protected

health activity, as defined by section 570.17 of the criminal procedure

law, such legally protected activity shall not, by itself, constitute

professional misconduct. The licensee shall otherwise abide by all other

applicable professional requirements.

10. Professional misconduct proceedings shall consist of:

* (a) Investigation. (i) (A) The board for professional medical

conduct, by the director of the office of professional medical conduct,

may investigate on its own any suspected professional misconduct, and

shall investigate each complaint received regardless of the source. By

the conclusion of a preliminary review, including an internal clinical

review, the director shall determine if a report is based solely upon

the recommendation or provision of a treatment modality by a licensee

that is not universally accepted by the medical profession, including

but not limited to varying modalities used in the treatment of Lyme

disease or other tick-borne diseases. Upon a determination by the

director that a report is based solely upon the provision of a treatment

modality that is not universally accepted, no further review shall be

conducted and no charges shall be brought. Nothing in this section shall

preclude the director from making such a determination earlier in, or

subsequent to, a preliminary review. (B) The director of the office of

professional medical conduct 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, sections twenty-eight hundred five-l and

forty-four hundred five-b of this chapter, and section three hundred

fifteen of the insurance law, to determine if such report reasonably

appears to reflect physician conduct warranting further investigation

pursuant to this subparagraph.

(i-a) The director shall, in addition to the determination required by

clause (A) of subparagraph (i) of this paragraph, determine if a report

is based solely upon conduct which is otherwise permissible pursuant to

section sixty-five hundred thirty-one-b of the education law and

subdivision nine-c of this section, and upon a determination by the

director that a report is based solely upon such permissible conduct, no

further review shall be conducted and no charges shall be brought.

Nothing in this section shall preclude the director from making such a

determination earlier in, or subsequent to, a preliminary review.

(ii) If the investigation of cases referred to an investigation

committee involves issues of clinical practice, medical experts, shall

be consulted. Experts may be made available by the state medical society

of the state of New York, by county medical societies and specialty

societies, and by New York state medical associations dedicated to the

advancement of non-conventional medical treatments. Any information

obtained by medical experts in consultations, including the names of

licensees or patients, shall be confidential and shall not be disclosed

except as otherwise authorized or required by law.

(iii) In the investigation of cases referred to an investigation

committee, the licensee being investigated shall have an opportunity to

be interviewed by the office of professional medical conduct in order to

provide an explanation of the issues under investigation. Providing an

opportunity for such an interview shall be a condition precedent to the

convening of an investigation committee on professional misconduct of

the board for professional medical conduct.

(A) At least twenty days before the interview, except as otherwise set

forth herein, the licensee under investigation shall be given written

notice of: (1) a description of the conduct that is the subject of the

investigation; (2) the issues relating to the conduct that have been

identified at the time of the notice; (3) the time frame of the conduct

under investigation; (4) the identity of each patient whose contact with

or care by the licensee is believed to be relevant to the investigation;

and (5) the fact that the licensee may be represented by counsel and may

be accompanied by a stenographer to transcribe the proceeding. All costs

of transcription shall be paid by the licensee and a copy shall be

provided to the department by the licensee within thirty days of the

interview. The notice required by this subparagraph may be given less

than twenty days before an interview in any case where the office of

professional medical conduct anticipates that the commissioner will take

summary action under subdivision twelve of this section, provided that

the notice is given within a reasonable amount of time prior to the

interview and advises of the possible summary action.

(B) Within thirty days following the interview or, in a case where a

stenographer was present at the interview, within fifteen days after the

office of professional medical conduct receives the transcript of the

interview, whichever is later, the licensee shall be provided with a

copy of the report of the interviewer. In addition, the licensee shall

promptly be given written notice of issues identified subsequent to the

interview. The licensee may submit written comments or expert opinion or

medical or scientific literature that is directly relevant to the issues

that have been identified by the office of professional medical conduct

to the office of professional medical conduct at any time.

(C) If the director determines that the matter shall be submitted to

an investigation committee, an investigation committee shall be convened

within ninety days of any interview of the licensee. The director shall

present the investigation committee with relevant documentation

including, but not limited to: (1) a copy of the original complaint; (2)

the report of the interviewer and the stenographic record if one was

taken; (3) the report of any medical or scientific expert; (4) copies of

reports of any patient record reviews; and (5) the licensee's

submissions.

(D) If the director determines to close an investigation following an

interview without presentation to an investigation committee, the office

of professional medical conduct shall notify the licensee in writing.

(iv) If the director of the office of professional medical conduct,

after obtaining the concurrence of a majority of an investigation

committee, and after consultation with the executive secretary,

determines that a hearing is warranted the director shall, within

fifteen days thereafter, direct counsel to prepare the charges. If the

investigation committee is unanimous in its concurrence that a hearing

is warranted, the charges shall be made public under paragraph (d) of

this subdivision. If the investigation committee is not unanimous in its

concurrence that a hearing is warranted, the members of such committee

shall vote on whether the charges should be made public, and if all of

the committee members vote in favor of publication, the charges shall be

made public under paragraph (d) of this subdivision. If the director

determines after consultation with an investigation committee that: (A)

evidence exists of a single incident of negligence or incompetence, a

pattern of inappropriate prescribing or medical practice, or impairment

by drugs, alcohol, physical or mental disability; (B) a recommendation

was made by a county medical society or the medical society of the state

of New York that warrants further review; or (C) the facts underlying a

verdict in a medical malpractice action warrant further review, the

director, in addition to the authority set forth in this section, shall

be authorized to conduct a comprehensive review of patient records of

the licensee and such office records of the licensee as are related to

said determination. The licensee shall cooperate with the investigation

and willful failure to cooperate in a substantial or material respect

may result in an enforcement proceeding pursuant to subparagraph (ii) of

paragraph (o) of this subdivision. If there is a question of alcoholism,

alcohol abuse, drug abuse or mental illness, the director may refer the

matter to a committee, as referred to in subparagraph (ii) of paragraph

(c) of subdivision eleven of this section.

(v) The files of the office of professional medical conduct relating

to the investigation of possible instances of professional misconduct

shall be confidential and not subject to disclosure at the request of

any person, except as provided by law in a pending disciplinary action

or proceeding. The provisions of this paragraph shall not prevent the

office from sharing information concerning investigations within the

department and, pursuant to subpoena, with other duly authorized public

agencies responsible for professional regulation or criminal

prosecution. Nothing in this subparagraph shall affect the duties of

notification set forth in subdivision nine-a of this section or prevent

the publication of charges or of the findings, conclusions,

determinations, or order of a hearing committee pursuant to paragraphs

(d) or (g) of this subdivision. In addition, the commissioner may

disclose the information when, in his or her professional judgment,

disclosure of such information would avert or minimize a public health

threat. Any such disclosure shall not affect the confidentiality of

other information in the files of the office of professional medical

conduct related to the investigation.

(vi) The office of professional medical conduct, acting under this

section, may have access to the criminal history record of any licensee

governed by the provisions of this section maintained by the division of

criminal justice services pursuant to subdivision six of section eight

hundred thirty-seven of the executive law.

(vii) The director of the office of professional medical conduct, in

consultation with the patient safety center, shall cause a review on a

continuous basis of medical malpractice claim and disposition

information reported to the commissioner under section three hundred

fifteen of the insurance law, for the purpose of identifying potential

misconduct. The office shall commence a misconduct investigation if

potential misconduct is identified as a result of such review, which

shall be based on criteria such as disposition frequency, disposition

type including judgment and settlement, disposition award amount,

geographic region, specialty, or other factors as appropriate in

identifying potential misconduct.

* NB Effective until July 1, 2028

* (a) Investigation. The board for professional medical conduct, by a

committee on professional conduct, may investigate on its own any

suspected professional misconduct, and shall investigate each complaint

received regardless of the source. The results of the investigation

shall be referred to the director of the office of professional medical

conduct. If the director of the office of professional medical conduct,

after consultation with a professional member of the board for

professional medical conduct, determines that a hearing is warranted he

shall direct counsel to prepare the charges within fifteen days

thereafter. If it is determined by the director that the complaint

involves a question of professional expertise then such director may

seek, and if so shall obtain, the concurrence of at least two members of

a panel of three members of the state board for professional medical

conduct.

* NB Effective July 1, 2028

(b) Charges. The charges shall state the substance of the alleged

professional misconduct and shall state clearly and concisely the

material facts but not the evidence by which the charges are to be

proved.

(c) Notice of hearing. The board shall set the time and place of the

hearing. The notice of hearing shall state (1) the date, time and place

of the hearing, (2) that the licensee shall file a written answer to

each of the charges and allegations in the statement of charges no later

than ten days prior to the hearing, that any charge and allegation not

so answered shall be deemed admitted and that the licensee may wish to

seek the advice of counsel prior to filing such answer, (3) that the

licensee shall appear personally at the hearing and may be represented

by counsel who shall be an attorney admitted to practice in New York

state, (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 have subpoenas issued in his

behalf to require the production of witnesses and evidence in manner and

form as prescribed by the civil practice law and rules or either party

may issue such subpoenas in their own behalf, (5) that a stenographic

record of the hearing will be made, and (6) such other information as

may be considered appropriate by the committee.

(d) Service of charges and of notice of hearing. (i) A copy of the

charges and the notice of the hearing shall be served on the licensee

personally by the board at least thirty days before the hearing. If

personal service cannot be made after due diligence and such fact is

certified under oath, a copy of the charges and the notice of hearing

shall be served by registered or certified mail to the licensee's last

known address by the board at least fifteen days before the hearing.

(ii) The charges shall be made public, consistent with subparagraph

(iv) of paragraph (a) of this subdivision, no earlier than five business

days after they are served, and the charges shall be accompanied by a

statement advising the licensee that such publication will occur;

provided, however, that charges may be made public immediately upon

issuance of the commissioner's order in the case of summary action taken

pursuant to subdivision twelve of this section and no prior notification

of such publication need be made to the licensee.

(iii) If a hearing on the charges has not yet been conducted or if a

hearing has been conducted but the committee has not yet issued a

determination, the publication of charges by the department shall

include a statement advising that the charges are only allegations which

may be contested by the licensee in an administrative hearing, except

that no such statement need be included if the licensee fails or

affirmatively declines to contest the charges. In the event any or all

such charges are dismissed, such dismissal shall be made public within

two business days.

(d-1) Disclosure of exculpatory evidence. After service of the charges

upon the licensee, counsel for the office of professional medical

conduct shall, as soon as practicable and on a continuing basis, provide

the licensee with any information or documentation in the possession of

the office of professional medical conduct which tends to prove the

licensee's innocence.

(e) Committee hearing. The hearing shall be conducted by a committee

on professional conduct. The members of the hearing committee shall be

appointed by the chairperson of the board who shall designate the

committee chairperson. In addition to said committee members, the

commissioner 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, including motions to compel disclosure

of information or material claimed to be protected because of privilege

or confidentiality, procedures and other legal objections and shall

draft the conclusions of the hearing committee pursuant to paragraph

(g). The administrative officer shall have the authority to rule on

objections to questions posed by either party or the committee members.

The administrative officer shall not be entitled to vote.

(f) Conduct of hearing. All hearings must be commenced within sixty

days of the service of charges except that an adjournment of the initial

hearing date may be granted by the hearing committee upon request by

either party upon good cause shown. No adjournment shall exceed thirty

days. The evidence in support of the charges shall be presented by an

attorney. The licensee shall have the rights required to be stated in

the notice of hearing (subparagraph (c) of this subdivision) and in

section four hundred one of the state administrative procedure act. The

committee shall not be bound by the rules of evidence, but its

conclusion 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 committee. In the

event of a member's death or incapacity to serve on the committee, a

member shall be appointed immediately by the chairperson of the board.

The member shall affirm in writing that he or she has read and

considered evidence and transcripts of the prior proceedings. The last

hearing day must be held within one hundred twenty days of the first

hearing day. Either party, for good cause shown, may request that the

committee extend the last hearing day beyond one hundred twenty days. An

extension requested by the licensee and granted by the committee may not

be used as the grounds for a proceeding brought under paragraph (j) of

this subdivision.

(g) Results of hearing. The committee shall make (1) findings of fact,

(2) conclusions concerning the charges sustained or dismissed, and (3) a

determination regarding charges sustained or dismissed, and in the event

any of the charges have been sustained, of the penalty to be imposed or

appropriate action to be taken and the reasons for the determination.

For the committee to make a conclusion sustaining a charge, or

determining a penalty or the appropriate action to be taken, two members

of the committee must vote for such a conclusion or determination. The

committee shall issue an order based on its determination. The

committee's findings, conclusions, determinations and order shall become

public upon issuance. However, if the time to request a review of the

committee's determination has not yet expired, or if the review has been

requested but no determination as a result of the review has been

issued, such publication shall include a statement advising that the

licensee or the department may request a review of the committee's

determination. No such statement is required if (a) the time to request

such review has expired without the filing of such request by either of

the parties, or (b) the licensee and the department both affirmatively

decline to request review of the committee's determination or fail to

perfect such review. In the event any or all such charges are dismissed,

such dismissal shall be made public within two business days.

(h) Disposition of results. (i) The findings, conclusions,

determination and the reasons for the determination of the committee

shall be served upon the licensee, the department, and any hospitals,

primary practice settings or health care plans required to be identified

in publicly disseminated physician data pursuant to paragraph (j), (n),

or (q) of subdivision one of section twenty-nine hundred ninety-five-a

of this chapter, within sixty days of the last day of hearing. Service

shall be either by certified mail upon the licensee at the licensee's

last known address and such service shall be effective upon receipt or

seven days after mailing by certified mail whichever is earlier or by

personal service and such service shall be effective upon receipt. The

licensee shall deliver to the board the license which has been revoked,

annulled, suspended or surrendered, together with the registration

certificate, within five days after receipt 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 board when located.

The director of the office shall promptly transmit a copy of the order

to the division of professional licensing services of the state

education department and to each hospital at which the licensee has

privileges.

(ii) When a license has been: (A) revoked or annulled without stay

pursuant to subdivision four or five of section two hundred thirty-a of

this title; (B) surrendered by a licensee; (C) suspended without stay

for more than one hundred eighty days; or (D) restricted to prohibit the

practice of medicine or to preclude the delivery of patient care, the

licensee whose license has been so revoked, surrendered, annulled

without stay, suspended without stay for more than one hundred eighty

days, or restricted shall, within fifteen days of the effective date of

the order:

(1) notify his or her patients, of the cessation or limitation of the

licensee's medical practice; the names of other physicians or health

care practitioners who have agreed to assume responsibility for the

patient's care; that the patient should contact one of those named

physicians or health care practitioners, or another physician or health

care practitioner of the patient's choice, to determine the health care

plans, as defined in sections four thousand nine hundred of the

insurance law and forty-nine hundred of this chapter, in which the

physician or health care practitioner participates and the polices and

procedures of such physician or other health care practitioner; that the

patient should notify the licensee of the name of the physician or other

health care practitioner to whom the patient's medical records should be

transferred; and that the licensee will retain, and remain responsible

for the maintenance of the patient's medical records until the patient

provides notice that the records shall be transferred directly to the

patient, consistent with the provisions of sections seventeen and

eighteen of this chapter, or to another practitioner of the patient's

choice. The licensee shall also notify each health care plan with which

the licensee contracts or is employed, and each hospital where he or she

has privileges in writing of the cessation or limitation of the

licensee's medical practice. Within forty-five days of the effective

date of the order, the licensee shall provide the office of professional

medical conduct with proof, in a form acceptable to the director of the

office of professional medical conduct, that all patients and hospitals

have been notified of the cessation or limitation of the licensee's

medical practice.

(2) make arrangements for the transfer and maintenance of the medical

records of his or her former patients. Records shall be either

transferred to the licensee's former patients consistent with the

provisions of sections seventeen and eighteen of this chapter or to

another physician or health care practitioner as provided in clause (1)

of this subparagraph who shall expressly assume responsibility for their

care and maintenance and for providing access to such records, as

provided in subdivisions twenty-two and thirty-two of section sixty-five

hundred thirty of the education law, the rules of the board of regents

or the regulations of the commissioner of education and sections

seventeen and eighteen of this chapter. When records are not transferred

to the licensee's former patients or to another physician or health care

practitioner, the licensee whose license has been revoked, annulled,

surrendered, suspended or restricted shall remain responsible for the

care and maintenance of the medical records of his or her former

patients and shall be subject to additional proceedings pursuant to

subdivisions twenty-two, thirty-two and forty of section sixty-five

hundred thirty of the education law in the event that the licensee fails

to maintain those medical records or fails to make them available to a

former patient.

(3) notify the office of professional medical conduct of the name,

address, and telephone number of any physician or other health care

practitioner who has agreed to accept responsibility for storing and

maintaining these medical records.

(4) in the event that the licensee whose license has been revoked,

annulled, surrendered or restricted to prohibit the practice of medicine

or to preclude the delivery of patient care holds a federal Drug

Enforcement Agency (DEA) certificate, advise the DEA in writing of the

licensure action, surrender his or her DEA controlled substance

privileges to the DEA, and surrender any unused DEA #222 U.S. Official

Order Forms, Schedules 1 and 2 to the DEA.

(5) for licensees whose license has been revoked, annulled,

surrendered or restricted to prohibit the practice of medicine or to

preclude the delivery of patient care, return any unused New York state

official prescription forms to the bureau of narcotics enforcement of

the department. The licensee shall cause all other prescription pads

bearing the licensee's name to be destroyed. If no other licensee is

providing services at the licensee's practice location, all medications

shall be properly disposed.

(6) for licensees whose license to practice has been revoked,

annulled, surrendered or restricted to prohibit the practice of medicine

or to preclude the delivery of patient care, refrain from new

advertising and make reasonable efforts to cease current advertising by

which his or her eligibility to practice medicine is represented.

In addition to any other penalty provided for in law, failure to

comply with the requirements of this subparagraph shall constitute

misconduct that may be prosecuted pursuant to this section and which may

subject the licensee to the imposition of additional penalties pursuant

to section two hundred thirty-a of this title.

(i) The determinations of a committee on professional conduct of the

state board for professional medical conduct may be reviewed by the

administrative review board for professional medical conduct.

(j) Time limitations. Failure to comply with a provision of this

subdivision requiring that a specified action shall be taken within a

specified period of time shall be grounds for a proceeding pursuant to

article seventy-eight of the civil practice law and rules for an order

staying the hearing or dismissing the charges or any part thereof or any

other appropriate relief. Such proceeding shall be returnable before the

supreme court of Albany county or New York county. The respondent in

such proceeding shall have the initial burden to explain the reasons for

the failure to comply with a provision of this subdivision requiring

that a specified action to be taken within a specified period of time.

The court shall not stay the hearing or dismiss the charges or grant any

other relief unless it determines that failure to comply was not caused

by the article seventy-eight petitioner and has caused substantial

prejudice to the article seventy-eight petitioner.

(k) The executive secretary of the board with the specific approval of

a committee on professional conduct of the board shall have the power to

issue subpoenas requiring persons to appear before the board and be

examined with reference to a matter within the scope of the inquiry or

the investigation being conducted by the board and produce books,

papers, records or documents pertaining thereto.

(l) The board or its representatives may examine and obtain records of

patients in any investigation or proceeding by the board acting within

the scope of its authorization. Unless expressly waived by the patient,

any information so obtained shall be confidential and shall not be

disclosed except to the extent necessary for the proper function of the

board and the name of the patient may not be disclosed by the board or

its employees at any stage of the proceedings unless the patient has

expressly consented. Any other use or dissemination by any person by any

means, unless pursuant to a valid court order or otherwise provided by

law, is prohibited.

(m) Expedited procedures. (i) Violations. Violations involving

professional misconduct of a minor or technical nature may be resolved

by expedited procedures as provided in subparagraph (ii) or (iii) of

this paragraph. For purposes of this paragraph 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.

(ii) Administrative warning and consultation. If the director of the

office of professional medical conduct, after obtaining the concurrence

of a majority of a committee on professional conduct, and after

consultation with the executive secretary, determines that there is

substantial evidence of professional misconduct of a minor or technical

nature or of substandard medical practice which does not constitute

professional misconduct, the director may issue an administrative

warning and/or provide for consultation with a panel of one or more

experts, chosen by the director. Panels of one or more experts may

include, but shall not be limited to, a peer review committee of a

county medical society or a specialty board. Administrative warnings and

consultations 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.

(iii) Violation committee proceeding. If the director determines,

after obtaining the concurrence of a majority of a committee on

professional conduct, and after consultation with the executive

secretary, that there is substantial evidence of a violation and that

the violation is of a nature justifying a penalty as specified in this

subparagraph the department may prepare and serve charges, either by

personal service or by certified mail, return receipt requested. A

violation committee proceeding shall be commenced within three years of

the alleged professional misconduct. Such charges shall include a

statement that the matter shall be referred to a committee on

professional conduct, which shall act as a violations committee for

determination. The violations committee shall be appointed by the

chairperson of the state board. Paragraph (c) of subdivision ten of

this section shall apply to the proceeding. A stenographic record of the

hearing shall be made. The evidence in support of the charges shall be

presented by an attorney and the licensee shall be afforded an

opportunity to be heard and to present evidence in his behalf. Such

violations committee may issue a censure and reprimand, may require the

licensee to perform up to twenty-five hours of public service in a

facility licensed pursuant to article twenty-eight of this chapter in a

manner and at a time and place directed by the board, 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. The

violations committee may alternatively dismiss the charges in the

interest of justice. The order shall be served either by certified mail

to the licensee's last known address and such services shall be

effective upon receipt or seven days after mailing by certified mail

whichever is earlier or by personal service and such service shall be

effective upon receipt. The order may be reviewed by the administrative

appeals board for professional medical conduct.

(n) Engagement. A proceeding under 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.

(o) Orders for review of medical records. Where the director has

issued an order for a comprehensive medical review of patient records

and office records pursuant to subparagraph four of paragraph (a) of

this subdivision and the licensee has refused to comply with the

director's order, the director may apply to a justice of the supreme

court, in writing, on notice to the licensee, for a court order to

compel compliance with the director's order. The court shall not grant

the application unless it finds that (i) there was a reasonable basis

for issuance of the director's order and (ii) there is reasonable cause

to believe that the records sought are relevant to the director's order.

The court may deny the application or grant the application in whole or

in part.

(p) Convictions of crimes or administrative violations. In cases of

professional misconduct based solely upon a violation of subdivision

nine of section sixty-five hundred thirty of the education law, the

director may direct that charges be prepared and served and may refer

the matter to a committee on professional conduct for its review and

report of findings, conclusions as to guilt, and determination. In such

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

written answer to each of the charges and allegations in the statement

of charges no later than ten days prior to the hearing, and that any

charge or allegation not so answered shall be deemed admitted, that the

licensee may wish to seek the advice of counsel prior to filing such

answer that the licensee may file a brief and affidavits with the

committee on professional conduct, that the licensee may appear

personally before the committee on professional conduct, may be

represented by counsel and may present evidence or sworn testimony in

his or her behalf, and the notice may contain such other information as

may be considered appropriate by the director. The department may also

present evidence or sworn testimony and file a brief at the hearing. A

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

testimony offered to the committee on professional conduct shall be

strictly limited to evidence and testimony relating to the nature and

severity of the penalty to be imposed upon the licensee. Where the

charges are based on the conviction of state law crimes in other

jurisdictions, evidence may be offered to the committee which would show

that the conviction would not be a crime in New York state. The

committee on professional conduct may reasonably limit the number of

witnesses whose testimony will be received and the length of time any

witness will be permitted to testify. The determination of the committee

shall be served upon the licensee and the department in accordance with

the provisions of paragraph (h) of this subdivision. A determination

pursuant to this subdivision may be reviewed by the administrative

review board for professional medical conduct.

(q) At any time subsequent to the final conclusion of a professional

misconduct proceeding against a licensee, whether upon the determination

and order of a hearing committee issued pursuant to paragraph (h) of

this subdivision or upon the determination and order of the

administrative review board issued pursuant to paragraph (d) of

subdivision four of section two hundred thirty-c of this title, the

licensee may file a petition with the director, requesting vacatur or

modification of the determination and order. The director shall, after

reviewing the matter and after consulting with department counsel,

determine in the reasonable exercise of his or her discretion whether

there is new and material evidence that was not previously available

which, had it been available, would likely have led to a different

result, or whether circumstances have occurred subsequent to the

original determination that warrant a reconsideration of the measure of

discipline. Upon determining that such evidence or circumstances exist,

the director shall have the authority to join the licensee in an

application to the chairperson of the state board for professional

medical conduct to vacate or modify the determination and order, as the

director may deem appropriate. Upon the joint application of the

licensee and the director, the chairperson shall have the authority to

grant or deny such application.

11. Reporting of professional misconduct:

(a) The medical society of the state of New York, the New York state

osteopathic society or any district osteopathic society, any statewide

medical specialty society or organization, and every county medical

society, every person licensed pursuant to articles one hundred

thirty-one, one hundred thirty-one-B, one hundred thirty-three, one

hundred thirty-seven and one hundred thirty-nine of the education law,

and the chief executive officer, the chief of the medical staff and the

chairperson of each department of every institution which is established

pursuant to article twenty-eight of this chapter and a comprehensive

health services plan pursuant to article forty-four of this chapter or

article forty-three of the insurance law, shall, and any other person

may, report to the board any information which such person, medical

society, organization institution or plan has which reasonably appears

to show that a licensee is guilty of professional misconduct as defined

in sections sixty-five hundred thirty and sixty-five hundred thirty-one

of the education law. Such reports shall remain confidential and shall

not be admitted into evidence in any administrative or judicial

proceeding except that the board, its staff, or the members of its

committees may begin investigations on the basis of such reports and may

use them to develop further information.

(b) Any person, organization, institution, insurance company,

osteopathic or medical society who reports or provides information to

the board in good faith, and without malice shall not be subject to an

action for civil damages or other relief as the result of such report.

(c) Notwithstanding the foregoing, no physician shall be responsible

for reporting pursuant to paragraph (a) of this subdivision with respect

to any information discovered by such physician solely as a result of:

(i) Participation in a properly conducted mortality and/or morbidity

conference, departmental meeting or a medical or tissue committee

constituted pursuant to the by-laws of a hospital which is duly

established pursuant to article twenty-eight of the public health law,

unless the procedures of such conference, department or committee of

such hospital shall have been declared to be unacceptable for the

purpose hereof by the commissioner, and provided that the obligations of

reporting such information when appropriate to do so shall be the

responsibility of the chairperson of such conference, department or

committee, or

* (ii) Participation and membership during a three year demonstration

period in a physician committee of the Medical Society of the State of

New York or the New York State Osteopathic Society whose purpose is to

confront and refer to treatment physicians who are thought to be

suffering from alcoholism, drug abuse, or mental illness. Such

demonstration period shall commence on April first, nineteen hundred

eighty and terminate on May thirty-first, nineteen hundred eighty-three.

An additional demonstration period shall commence on June first,

nineteen hundred eighty-three and terminate on March thirty-first,

nineteen hundred eighty-six. An additional demonstration period shall

commence on April first, nineteen hundred eighty-six and terminate on

March thirty-first, nineteen hundred eighty-nine. An additional

demonstration period shall commence April first, nineteen hundred

eighty-nine and terminate March thirty-first, nineteen hundred

ninety-two. An additional demonstration period shall commence April

first, nineteen hundred ninety-two and terminate March thirty-first,

nineteen hundred ninety-five. An additional demonstration period shall

commence on April first, nineteen hundred ninety-five and terminate on

March thirty-first, nineteen hundred ninety-eight. An additional

demonstration period shall commence on April first, nineteen hundred

ninety-eight and terminate on March thirty-first, two thousand three. An

additional demonstration period shall commence on April first, two

thousand three and terminate on March thirty-first, two thousand

thirteen. An additional demonstration period shall commence April first,

two thousand thirteen and terminate on March thirty-first, two thousand

eighteen. An additional demonstration period shall commence April first,

two thousand eighteen and terminate on July first, two thousand

twenty-eight provided, however, that the commissioner may prescribe

requirements for the continuation of such demonstration program,

including periodic reviews of such programs and submission of any

reports and data necessary to permit such reviews. During these

additional periods, the provisions of this subparagraph shall also apply

to a physician committee of a county medical society.

* NB Expires July 1, 2028

(d) In the event that a physician or administrator of a hospital

established pursuant to article twenty-eight of this chapter shall

reasonably be unable to determine if any information which he or she has

is such that it does reasonably appear to show that a licensee is guilty

of professional misconduct and therefore creates an obligation on such

physician or such administrator to make a report pursuant to paragraph

(a) hereof, he or she may either:

(i) in accordance with procedures established by the board, and

without revealing the name of the licensee who he or she is considering

making such a report about, request in writing the advice of the board

as to whether or not a report should be made, and the physician or

administrator so requesting such advice shall then be required to comply

with the advice of the board. No such request for advice shall relieve

the requesting physician or administrator of any obligation hereunder

unless all other material facts are revealed, other than the name of the

licensee in question, or

(ii) in the case where the licensee about whom another physician is

considering making such report is affiliated with a hospital which is

duly established pursuant to article twenty-eight of this chapter, a

physician may elect to fulfill the obligations of paragraph (a) hereof

by reporting such information to the appropriate executive committee or

professional practices peer review committee which is duly constituted

pursuant to by-laws of such hospital, unless the peer review procedures

of such hospital shall have been declared to be unacceptable for the

purposes hereof by the commissioner. The physician members of such

hospital executive committee or professional practices peer review

committee shall thereupon have the responsibility of reporting such

information to the board pursuant to paragraph (a) hereof, as required

thereby, but in the event that such committee determines that a report

shall be made to the board, the chairperson of such committee may

fulfill the obligation of reporting on behalf of all the members of the

committee, or

(iii) in a case where the physician, about whom he or she is

considering making such report, is a member of a county medical society

or district osteopathic society, and is not affiliated with a hospital,

but practices his or her profession within such county or district, a

physician may elect to fulfill the obligations of paragraph (a) hereof

by reporting such information to the appropriate county medical

society's or district osteopathic society's professional practices

review committee duly constituted pursuant to the by-laws of such county

medical society or district osteopathic society, unless the review

procedures of such county medical society or district osteopathic

society shall have been declared to be unacceptable for the purposes

hereof by the commissioner. The physician members of such review

committee shall thereupon have the responsibility of reporting such

information to the board pursuant to paragraph (a) hereof, as required

thereby, but in the event that such committee determines that a report

shall be made to the board, the chairperson of such committee may

fulfill the obligation of reporting on behalf of all the members of the

committee.

(e) Nothing contained in this subdivision shall be so construed as to

require any physician to violate a physician/patient privilege and

therefore, no physician shall be required to report any information to

the board which such physician has learned solely as a result of

rendering treatment to another physician.

(f) A violation of this subdivision shall not be subject to the

provisions of sections twelve and twelve-b of this chapter.

* (g) (i) Any physician committee of the Medical Society of the State

of New York, the New York State Osteopathic Society or a county medical

society referred to in subparagraph (ii) of paragraph (c) of this

subdivision shall develop procedures in consultation with, and approved

by, the commissioner, including but not limited to the following:

(A) The committee shall disclose at least once a month such

information as the director of the office of professional medical

conduct may deem appropriate regarding reports received, contacts or

investigations made and the disposition of each report, provided however

that the committee shall not disclose any personally identifiable

information except as provided in clause (B) or (C) of this

subparagraph.

(B) The committee shall immediately report to the director the name,

all information obtained and the results of any contact or investigation

regarding any physician who is believed to be an imminent danger to the

public.

(C) The committee shall report to the director in a timely fashion all

information obtained regarding any physician who refuses to cooperate

with the committee, refuses to submit to treatment, or whose impairment

is not substantially alleviated through treatment.

(D) The committee shall inform each physician who is participating in

a program of the procedures followed in the program, of the rights and

responsibilities of the physician in the program and of the possible

results of noncompliance with the program.

** (ii) No member of any such committee; nor the Medical Society of

the State of New York, the New York State Osteopathic Society or a

county medical society referred to in subparagraph (ii) of paragraph (c)

of this subdivision that establishes a committee; nor any agent,

servant, representative or employee that provides service to any such

committee or society, shall be liable for damages to any person for any

action taken by such committee, society, member, agent, servant,

representative or employee provided that such action was taken without

malice and within the scope of such individual's or entity's function in

relation to such committee.

** NB Repealed July 1, 2028

** (iii) The committee, in conjunction with the director of the office

of professional medical conduct, shall develop appropriate consent forms

and disclosure proceedings as may be necessary under any federal

statute, rule or regulation in order to permit the disclosure of the

information as may be required under clauses (B) and (C) of subparagraph

(i) of this paragraph.

** NB Repealed July 1, 2028

**(iv) Except as provided in this paragraph and notwithstanding any

other provision of law, neither the proceedings nor the records of any

such physician committee shall be subject to disclosure under article

thirty-one of the civil practice law and rules nor shall any member of

any such committee nor any person in attendance at any such meeting be

required to testify as to what transpired thereat.

** NB Repealed July 1, 2028

* NB Expires July 1, 2028

(h) The office of professional medical conduct shall post on its

website information on patients' rights and reporting options under this

subdivision regarding professional misconduct, which shall specifically

include information on reporting instances of misconduct involving

sexual harassment and assault. All physicians' practice settings shall

conspicuously post signage, visible to their patients, directing such

patients to the office of professional medical conduct's website for

information about their rights and how to report professional

misconduct.

12. Summary action. (a) Whenever the commissioner, (i) after being

presented with information indicating that a licensee is causing,

engaging in or maintaining a condition or activity which has resulted in

the transmission or suspected transmission, or is likely to lead to the

transmission, of communicable disease as defined in the state sanitary

code or HIV/AIDS, by the state and/or a local health department and if

in the commissioner's opinion it would be prejudicial to the interests

of the people to delay action until an opportunity for a hearing can be

provided in accordance with the prehearing and hearing provisions of

this section; or (ii) after an investigation and a recommendation by a

committee on professional conduct of the state board for professional

medical conduct, based upon a determination that a licensee is causing,

engaging in or maintaining a condition or activity which in the

commissioner's opinion constitutes an imminent danger to the health of

the people, and that it therefore appears to be prejudicial to the

interests of the people to delay action until an opportunity for a

hearing can be provided in accordance with the prehearing and hearing

provisions of this section; the commissioner may order the licensee, by

written notice, to discontinue such dangerous condition or activity or

take certain action immediately and for a period of ninety days from the

date of service of the order. Within ten days from the date of service

of the said order, the state board for professional medical conduct

shall commence and regularly schedule such hearing proceedings as

required by this section, provided, however, that the hearing shall be

completed within ninety days of the date of service of the order. To the

extent that the issue of imminent danger can be proven without the

attorney representing the office of professional medical conduct putting

in its entire case, the committee of the board shall first determine

whether by a preponderance of the evidence the licensee is causing,

engaging in or maintaining a condition or activity which constitutes an

imminent danger to the health of the people. The attorney representing

the office of professional medical conduct shall have the burden of

going forward and proving by a preponderance of the evidence that the

licensee's condition, activity or practice constitutes an imminent

danger to the health of the people. The licensee shall have an

opportunity to be heard and to present proof. When both the office and

the licensee have completed their cases with respect to the question of

imminent danger, the committee shall promptly make a recommendation to

the commissioner on the issue of imminent danger and determine whether

the summary order should be left in effect, modified or vacated, and

continue the hearing on all the remaining charges, if any, in accordance

with paragraph (f) of subdivision ten of this section. Within ten days

of the committee's recommendation, the commissioner shall determine

whether or not to adopt the committee's recommendations, in whole or in

part, and shall leave in effect, modify or vacate his summary order. The

state board for professional medical conduct shall make every reasonable

effort to avoid any delay in completing and determining such

proceedings. If, at the conclusion of the hearing, (i) the hearing

committee of the board finds the licensee guilty of one or more of the

charges which are the basis for the summary order, (ii) the hearing

committee determines that the summary order continue, and (iii) the

ninety day term of the order has not expired, the summary order shall

remain in full force and effect until a final decision has been rendered

by the committee or, if review is sought, by the administrative review

board. A summary order shall be public upon issuance.

(b) When a licensee has pleaded or been found guilty or convicted of

committing an act constituting a felony under New York state law or

federal law, or the law of another jurisdiction which, if committed

within this state, would have constituted a felony under New York state

law, or when a licensee has been charged with committing an act

constituting a felony under New York state or federal law or the law of

another jurisdiction, where the licensee's alleged conduct, which, if

committed within this state, would have constituted a felony under New

York state law, and in the commissioner's opinion the licensee's alleged

conduct constitutes an imminent danger to the health of the people, or

when the duly authorized professional disciplinary agency of another

jurisdiction has made a finding substantially equivalent to a finding

that the practice of medicine by the licensee in that jurisdiction

constitutes an imminent danger to the health of its people, or when a

licensee has been disciplined by a duly authorized professional

disciplinary agency of another jurisdiction for acts which if committed

in this state would have constituted the basis for summary action by the

commissioner pursuant to paragraph (a) of this subdivision, the

commissioner, after a recommendation by a committee of professional

conduct of the state board for professional medical conduct, may order

the licensee, by written notice, to discontinue or refrain from

practicing medicine in whole or in part or to take certain actions

authorized pursuant to this title immediately. The order of the

commissioner shall constitute summary action against the licensee and

become public upon issuance. The summary suspension shall remain in

effect until the final conclusion of a hearing which shall commence

within ninety days of the date of service of the commissioner's order,

end within ninety days thereafter and otherwise be held in accordance

with paragraph (a) of this subdivision, provided, however, that when the

commissioner's order is based upon a finding substantially equivalent to

a finding that the practice of medicine by the licensee in another

jurisdiction constitutes an imminent danger to the health of its people,

the hearing shall commence within thirty days after the disciplinary

proceedings in that jurisdiction are finally concluded. If, at any time,

the felony charge is dismissed, withdrawn or reduced to a non-felony

charge, the commissioner's summary order shall terminate.

13. (a) Temporary surrender. The license and registration of a

licensee who may be temporarily incapacitated for the active practice of

medicine and whose alleged incapacity has not resulted in harm to a

patient may be voluntarily surrendered to the board for professional

medical conduct, which may accept and hold such license during the

period of such alleged incapacity or the board for professional medical

conduct may accept the surrender of such license after agreement to

conditions to be met prior to the restoration of the license. The board

shall give prompt written notification of such surrender to the division

of professional licensing services of the state education department,

and to each hospital at which the licensee has privileges. The licensee

whose license is so surrendered shall notify all patients and all

persons who request medical services that the licensee has temporarily

withdrawn from the practice of medicine. The licensure status of each

such licensee shall be "inactive" and the licensee shall not be

authorized to practice medicine. The temporary surrender shall not be

deemed to be an admission of disability or of professional misconduct,

and shall not be used as evidence of a violation of subdivision seven or

eight of section sixty-five hundred thirty of the education law unless

the licensee practices while the license is "inactive". Any such

practice shall constitute a violation of subdivision twelve of section

sixty-five hundred thirty of the education law. The surrender of a

license under this subdivision shall not bar any disciplinary action

except action based solely upon the provisions of subdivision seven or

eight of section sixty-five hundred thirty of the education law and

where no harm to a patient has resulted, and shall not bar any civil or

criminal action or proceeding which might be brought without regard to

such surrender. A surrendered license shall be restored upon a showing

to the satisfaction of a committee of professional conduct of the state

board for professional medical conduct that the licensee is not

incapacitated for the active practice of medicine provided, however,

that the committee may impose reasonable conditions on the licensee, if

it determined that due to the nature and extent of the licensee's former

incapacity such conditions are necessary to protect the health of the

people. The chairperson of the committee shall issue a restoration order

adopting the decision of the committee. Prompt written notification of

such restoration shall be given to the division of professional

licensing services of the state education department and to all

hospitals which were notified of the surrender of the license.

(b) Permanent surrender. The license and registration of a licensee

who may be permanently incapacitated for the active practice of

medicine, and whose alleged incapacity has not resulted in harm to a

patient, may be voluntarily surrendered to the board for professional

medical conduct. The board shall give prompt written notification of

such surrender to the division of professional licensing services of the

state education department, and to each hospital at which the licensee

has privileges. The licensee whose license is so surrendered shall

notify all patients and all persons who request medical services that

the licensee has permanently withdrawn from the practice of medicine.

The permanent surrender shall not be deemed to be an admission of

disability of or professional misconduct, and shall not be used as

evidence of a violation of subdivision seven or eight of section

sixty-five hundred thirty of the education law. The surrender shall not

bar any civil or criminal action or proceeding which might be brought

without regard to such surrender. There shall be no restoration of a

license that has been surrendered pursuant to this subdivision.

14. Reports. The board shall prepare an annual report for the

legislature, the governor and other executive offices, the medical

profession, medical professional societies, consumer agencies and other

interested persons. Such report shall include, but shall not be limited

to, a description and analysis of the administrative procedures and

operations based upon a statistical summary relating to (i) discipline,

(ii) complaint, investigation, and hearing backlog and (iii) budget.

Information provided for these sections shall be enumerated by regional

office of the office of professional medical conduct.

* 15. The commissioner shall make grants to any physician committee as

referred to in subparagraph (ii) of paragraph (c) of subdivision eleven

of this section to fund the operations of such committee during the

authorized demonstration period. Grants shall be awarded pursuant to an

expenditure plan developed by the sponsoring organization in

consultation with, and approved by the commissioner. No funds shall be

made available unless the committee's procedures have been approved by

the commissioner pursuant to paragraph (g) of subdivision eleven of this

section.

* NB Repealed July 1, 2028

16. Liability. Notwithstanding any other provision of law, persons who

assist the department as consultants, expert witnesses, administrative

officers or monitors in the investigation, prosecution or hearing of

alleged professional misconduct, licensure matters, restoration

proceedings, probation, 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.

17. Monitoring. (a) A licensee may be ordered to have his or her

practice monitored by another appropriate licensee after investigation

and review pursuant to paragraph (a) of subdivision ten of this section,

if there is reason to believe that the licensee is unable to practice

medicine with reasonable skill and safety to patients.

(b) The director of the office of professional medical conduct, after

consultation with the executive secretary, shall direct counsel to

prepare a notice detailing the reasonable cause and a copy of the notice

shall be served on the licensee. The matter shall be presented to a

committee on professional conduct by an attorney for the department and

the licensee shall have the opportunity to be heard by such committee

and may be represented by counsel. A stenographic record of the

proceeding shall be made. Service of the notice shall be in accordance

with the methods of service authorized by paragraph (d) of subdivision

ten of this section.

(c) If the committee determines that reasonable cause exists as

specified in paragraph (a) of this subdivision and that there is

insufficient evidence for the matter to constitute misconduct as defined

in sections sixty-five hundred thirty and section sixty-five hundred

thirty-one of the education law, the committee may issue an order

directing that the licensee's practice of medicine be monitored for a

period specified in the order, which shall in no event exceed one year,

by a licensee approved by the director, which may include members of

county medical societies or district osteopathic societies designated by

the commissioner. The licensee responsible for monitoring the licensee

shall submit regular reports to the director. If the licensee refuses to

cooperate with the licensee responsible for monitoring or if the

monitoring licensee submits a report that the licensee is not practicing

medicine with reasonable skill and safety to his or her patients, the

committee may refer the matter to the director for further proceedings

pursuant to subdivision ten of this section. An order pursuant to this

paragraph shall be kept confidential and shall not be subject to

discovery or subpoena, unless the licensee refuses to comply with the

order.

(d) A licensee may not seek the appointment of a monitor pursuant to

this subdivision in lieu of an order issued pursuant to subdivision

seven of this section or a disciplinary proceeding pursuant to

subdivision ten or twelve of this section.

18. (a) The director shall have the authority to monitor physicians,

physician's assistants and specialist's assistants who have been placed

on probation pursuant to a determination of professional misconduct by

the board. During such period of probation, the director, or his or her

designee, as provided in the order of the board, and after consultation

with the executive secretary, (i) may review the professional

performance of the licensee by randomly selecting office records,

patient records and hospital charts, (ii) may require periodic visits by

the licensee to a member of the state board for professional medical

conduct or an employee of the office of professional medical conduct,

(iii) may require the licensee to obtain an appropriate monitor,

approved by the director, to monitor the licensee's practice, (iv) may

require an audit of the licensee's billings for services rendered during

probation, (v) may require the licensee to submit on a random basis to

tests for the presence of alcohol or drugs, (vi) may require the

licensee to obtain additional training prior to completion of the

probation, (vii) may require the licensee to work in a supervised

setting, (viii) may require, as a condition of the licensee's continued

practice, that the licensee undergo therapy and/or treatment approved

and monitored by the director, (ix) may require that the licensee comply

with the requirements of the penalty imposed, and (x) may impose upon

the licensee such additional requirements as reasonably relate to the

misconduct found or are necessary to protect the health of the people

pursuant to regulation. The director is authorized to delegate some or

all of the foregoing responsibilities to designated county medical

societies and district osteopathic societies.

(b) Any health care provider licensed pursuant to this chapter or the

education law, hospital licensed pursuant to article twenty-eight of

this chapter or medical school that participates in a monitoring or

remediation program pursuant to this subdivision and subdivision

seventeen of this section shall not be liable for the negligence of the

monitored licensee in providing medical care pursuant to a monitoring

program. However, this paragraph does not diminish the participating

provider's, hospital's or school's liability for failure to exercise

reasonable care in properly carrying out its responsibilities under the

program. The monitored licensee shall be required to maintain medical

malpractice insurance coverage with limits no less than two million

dollars per occurrence and six million dollars per policy year.

19. Upon receipt of information that indicates a licensee may be in

violation of the terms or conditions of probation, the director of the

office of professional medical conduct shall conduct an investigation.

If the director determines that a licensee may have violated probation,

the director shall give notice by letter to the licensee of the facts

forming the basis of the alleged violation of probation by the licensee,

that the licensee has a right to a hearing and may be represented by

counsel. If the licensee does not dispute the facts forming the basis of

the alleged violation of probation within twenty days of the date of the

letter, the director shall submit the matter to a committee on

professional conduct for its review and determination. If within twenty

days of the date of the letter, the licensee disputes any of the facts

forming the basis of the alleged violation of probation, the licensee

shall be afforded a hearing before a committee on professional conduct

to hear and make findings of fact, conclusions of law and a

determination. A stenographic record of the hearing shall be made. The

committee, after providing a licensee with an opportunity to be heard,

shall determine whether the licensee has violated probation and shall

impose an appropriate penalty as defined in section two hundred thirty-a

of this title. In determining the appropriate penalty, the committee

shall consider both the violation of probation and the prior

adjudication of misconduct. The chairperson of the committee shall issue

an order adopting the decision of the committee on professional conduct.

The order may be reviewed by the administrative review board for

professional medical conduct.