Relates to competency exams, service charges, petitions to modify or vacate orders, profiling requirements and modifying physician and advertising and testimony st

Summary of Provisions:

Section 1 of the bill would add new Public Health Law (PHL) 230(7)(d) to allow a Committee on Professional Conduct (Committee) to order compliance with the remediation recommendations of a clinical competency examination pursuant to PHL § 230(7)(c). The Committee could also refer the case to the Director of OPMC for presentation to an investigative committee if it determines that there are no reasonable conditions or limitations that could be imposed upon the licensee that would sufficiently mitigate the licensee's incompetence.

Section 2 of the bill would amend Education Law § 6530(5) to provide that to have been found incompetent as the result of an examination conducted under PHL § 230(7)(c) is "professional misconduct" if a Committee determines that there is no practical remediation for such incompetence.

Section 3 of the bill would amend Education Law § 6530(15) to expand the definition of professional misconduct to include failure to comply with remediation recommendations made as the result of an examination conducted under PHL § 230(7)(c) and ordered by a Committee.

Section 4 of the bill would amend PHL § 230(l 0)(d)(i) to provide that the State Board for Professional Medical Conduct (Board) may serve a copy of the charges and the notice of hearing by means other than personal service.

Section 5 of the bill would amend PHL § 230(10)(q) to eliminate the opportunity to seek restoration of a license by OPMC when an application for restoration can be made to Regents.

Section 6 of the bill would amend Education Law § 6511 to provide that if the Regents, in considering an application to restore a license that had been revoked, does not act consistent with the recommendation of OPMC, its decision must set forth its justification for departing from such recommendation.

Section 7 of the bill would amend P1-IL § 2995-a(3) to make a technical correction.

Section 8 of the bill would amend Education Law § 6530(27) to make the restrictions on advertising consistent with those currently included in the Rules of the Board of Regents, 8 NYCRR 29 1(b)(12)

Section 9 of the bill would amend P1--IL § 1241(2) to create penalties for willful violations of Commissioner's orders and permit fines to be levied against individuals who violate Commissioner's orders.

Section 10 of the bill would make the current version of PHL § 12-b(2) permanent.

Existing Law:

PHL § 12-b provides that willful violations of the PHL, regulations under the PHL, municipal regulations, orders of local boards of health or orders of health officers are subject to the assessment of a S10,000 penalty or up to a year in prison.

PHL § 230(1) establishes the State Board for Professional Medical Conduct within DOH and authorizes it to investigate complaints of physician professional misconduct, as defined in the New York State Education Law §§ 6530 and 6531.

PHL § 230(7)(a) authorizes the Board, through its Committees on Professional Conduct, to conduct disciplinary proceedings against physicians, medical residents, physician assistants and special assistants.

PHL § 230(7)(a) authorizes a Committee on Professional Conduct to direct that a licensee submit to a medical or psychiatric examination if there is reason to believe the licensee may be impaired by alcohol, drugs, physical disability or mental disability.

PHL § 230(7)(c) authorizes a Committee on Professional Conduct to direct a licensee to undergo a clinical competency examination when there is reason to believe that his or her competency is an issue. The examiner is chosen by the Board with the advice of the licensee and OPMC, and the licensee may also obtain another evaluation from the examiner of his or her choice.

PHL § 230(10)(a) requires the Board, through OPMC, to investigate any complaint it receives, regardless of the source, and authorizes the investigation of suspected professional misconduct on its own initiative

PHL § 230(10)(c) provides that the Board shall set the time and place of a hearing and dictates the contents of a notice of hearing

PHL § 230(10)(d)(i) provides that to initiate a professional misconduct hearing, the Board must serve a copy of the charges and a notice of hearing upon a licensee by personal services at least 30 days before a scheduled heating.

PHL § 230(10)(d)(i) requires that when professional misconduct proceedings are commenced, a copy of the charges and the notice of hearing must be provided to the licensee either by: (1) personal service at least 30 days prior to the hearing, or (2) registered or certified mail service to the licensee's last known address at least 15 days prior to the hearing, if and only if attempts at personal service have been made and have been unsuccessful

PHL § 230(10)(q) provides that at any time subsequent to the conclusion of a professional misconduct proceeding that results in a Board determination and order, the licensee may file a petition with the Director of OPMC to have the determination and order modified or vacated, but only if based on new evidence. If the Director determines that the information submitted by the licensee, if it were available at an earlier time, could likely have led to a different result, the Director and the licensee may jointly petition the Chair of the Board for Professional Medical Conduct to vacate or modify the determination and order.

Education Law § 6511 provides that a licensee whose license has been revoked may petition the Regents to restore the license, but based on broader Regents discretion, without statutory delineation of limiting criteria Pursuant to the Regents' regulations, that Board will not entertain a petition prior to the passage of a specific period of time. At present, a former licensee may petition the Regents beginning three years after the license is revoked

Education Law 6530(27) defines as professional misconduct a physician's use of a patient testimonial regardless of whether the testimonial is truthful, not misleading, not fraudulent or not deceptive. Demonstrations, dramatizations, or other portrayals of professional practice in advertising on radio or television are also prohibited.

Education Law § 6502(5) requires that each physician maintain a current address on file with SED.

Section 29.1(b)(12) of Title 8 NYCRR provides that: (1) testimonials, demonstrations, dramatizations or other portrayals of professional practice in advertising may be used if the patient authorizes the portrayal in writing; (2) there is appropriate disclosure to avoid misleading the audience as to the patient's identity; (3) reasonable disclaimers are included; and (4) testimonials may not be fictional.

Legislative History: The proposed amendments to Education Law 6530(27) were included as part of legislation proposed in 2008, but were not enacted. The remaining proposals are new

Statement in Support:

The Board, within the DOH, administers the disciplinary process for physicians, physician assistants and specialist assistants. OPMC investigates allegations of professional misconduct, and an investigation Committee of the Board determines if charges should be issued. If so, the Board will issue a notice of charges. The licensee is entitled to a hearing before a Committee on Professional Conduct and an administrative review officer, who issues findings of fact and conclusions of law and, if appropriate, imposes a penalty. The licensee may seek administrative review from the Administrative Review Board (ARB) and, if the ARB affirms the administrative review officer's determination, to judicial review This bill would institute several refinements

First, while the Board currently is authorized to order a licensee to undergo a clinical competency examination, it cannot compel remediation in deficit areas or to take action if non-remediable incompetence is found. The bill would authorize a Committee, after affording a licensee notice and an opportunity to be heard, to order compliance with the remediation recommendations of a clinical competency examination. In addition, upon determining that there are no reasonable conditions or limitations that could be imposed upon a licensee that would sufficiently mitigate the licensee's incompetence, the bill would authorize the Committee to refer the case to the Director of OPMC for presentation to an investigative committee. This is necessary to allow the Board to address the licensee's incompetence and protect the patient public from those who are discovered to be incompetent yet refuse or are not capable of remediation.

Second, OPMC must attempt personal service of a copy of misconduct charges and the notice of hearing before it can serve process by mail. By adding alternative methods of service in addition to personal service, the expenditure of funds and use of staff resources would be reduced. Additionally, in many instances, licensees likely would receive notice sooner.

Third, the bill would allow a licensee to seek restoration of a license by OPMC until such time as he or she is able to petition the Regents for the restoration. Because licensees would still have an avenue available to seek restoration, this proposal would have minimal impact to them. Additionally, this bill would enhance patient protection by requiring the Board of Regents to provide a written justification for departing from an OPMC recommendation relating to an individual's application for restoration of a license.

Fourth, the bill revises Education Law § 6530(27), consistent with SED regulations, to provide that testimonials, demonstrations, dramatizations or other portrayals of professional practice in advertising may be used if the patient authorizes the portrayal in writing, there is appropriate disclosure to avoid misleading the audience as to the patient's identity, reasonable disclaimers are included, and testimonials may not be fictional. This amendment is consistent with the 2010 Second Circuit decision in Alexander v Cczhtli, 598 F .3d 79 (2d Cir 2010), cert. denied, 131 S. Ct. 820 (2010). in that case, the court affirmed the invalidation of limitations on endorsements and testimonials in attorney advertising which constituted commercial speech protected under the First Amendment.

Finally, this bill would amend PHL § 12-b so that there is consistency in enforcement. Currently, under . 12-b(2), willful violations of municipal public health laws or regulations or orders of local boards of health or health officers are punishable by up to a year of imprisonment, a fine not exceeding $10,000, or both. This bill would amend PHL § I 2-b(2) so that these penalties could be levied against individuals that violate Commissioner's orders.

Budget Implications: This bill would have no fiscal impact to the State, except that the proposed amendments relating to service by mail is likely to lead to savings. DOH spent 548,000 in 2010-11 on service of process, and estimates that the proposed amendments would reduce this amount between 60 and 80 percent

Effective Date: This bill would take effect 60 days after enactment except §§ 7, 9, and 10 would take effect immediately