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