N.Y. Public Health Law § 2761: Function, powers and duties

§ 2761. Function, powers and duties. 1. The health care worker

HIV/HBV advisory panel shall only evaluate and advise an HIV/HBV

infected health care worker who voluntarily seeks the panel's review of

the risk of HIV/HBV transmission to others through his/her workplace

practice. Prior to the panel's evaluation of the worker, the panel must

fully advise the worker of the panel's authority to investigate, to

recommend practice restrictions or modifications, to advise facilities

of such restrictions and to refer cases to professional licensing,

registration and certification boards. If the health care worker is

affiliated with or employed at a facility licensed by the department,

the panel may evaluate and advise the worker only after such facility

has completed its review of the scope of practice of the worker. This

institutional review may be conducted through the facility's existing

quality assurance program as required under section twenty-eight hundred

five-j of this chapter, and need not require the creation of a separate

facility HIV/HBV panel. Notwithstanding any other provision of law, rule

or regulation, the panel may request and shall be entitled to receive

patient records and other documents or information reasonably necessary

for and relevant to the panel's deliberations and the implementation of

this article including information and reports available to the

department under section twenty-eight hundred five-m of this chapter,

provided that the panel may only request records with patient names if

essential to the panel's complete review of the case and provided

further that employees of the department, other than the panel, shall

redact patient names before panel review of such records. Any such

information and reports provided to the panel that are subject to

section two thousand eight hundred five-m of this chapter shall remain

subject to the limitations on disclosure provided by such section. The

panel may seek the advice of professionals with relevant expertise. The

panel shall give the health care worker an opportunity to meet with the

panel. The health care worker may be accompanied by a union or other

representative at such meeting. Only when evidence indicates that the

health care worker's practice poses a significant risk of harm to

patients, the panel shall make appropriate recommendations that are

least restrictive with respect to the health care worker's practice

including, but not limited to, training or monitoring, or, if necessary,

reassignment or practice restrictions.

2. The panel shall evaluate an HIV/HBV infected health care worker

pursuant to comprehensive medical criteria, including:

(a) physical or mental condition that interferes with or is

significantly likely to interfere with the worker's ability to perform

assigned tasks or regular duties;

(b) lack of compliance with established guidelines to prevent

transmission of disease and/or documentation or evidence of previous

transmission of bloodborne pathogens;

(c) the appropriateness of techniques as related to performance of

procedures; and

(d) any health condition that would pose a significant risk to others.

3. When the panel recommends training, monitoring, reassignment, any

similar action, or practice restrictions, the health care worker shall

provide written assurance to the panel that he/she has informed

facilities licensed by the department where the worker provides patient

care of the panel's recommendations and shall identify the person or

persons at the facilities so informed. If the health care worker fails

to inform facilities licensed by the department where he/she provides

patient care of the panel's recommendations, the panel shall so notify

such facilities. If the health care worker fails to comply with the

panel's recommendations or compliance cannot be determined by the panel

after reasonable effort, the panel shall disclose the nature of its

recommendations to the professional licensing, registration or

certification boards relevant to the health care worker. The panel may

periodically monitor and reevaluate the worker, with the worker's

consent, at a frequency and through a mechanism to be determined by

agreement between the worker and the panel.

4. The information received by the panel, the record of deliberations

of the panel, and the decisions of the panel are not disclosable

pursuant to article six of the public officers law. If the health care

worker fails to comply with the recommendations of the panel or

compliance cannot be determined by the panel after reasonable effort,

information held by the panel, the panel's deliberations and

recommendations may be disclosed to and utilized by the office of

professional medical conduct, the office of professional discipline and

appropriate disciplinary bodies. The meetings of the panel are not

subject to article seven of the public officers law. The members of the

panel are bound by article six-A of the public officers law (personal

privacy protection law).

5. A health care worker's petition to the panel shall not prevent or

preclude the worker from seeking relief in any other forum at any time.

6. The commissioner may promulgate regulations implementing this

article.