Relates to the identification, charging, reporting and investigation of charges of professional misconduct by health care professionals

Summary of provisions

Section 1 amends subdivision 9-b of section 230 of the public health law to clarify that investigations by OPMC of complaints based solely upon the recommendation or provision of a treatment modality to a particular patient that is not universally accepted shall be limited to a preliminary review. It also preserves OPMCs ability to identify such cases.

Section 2 amends subdivision 10 of section 230 of the public health law to clarify that once a preliminary review, including an internal clinical review, is done as a result of a complaint, OPMC shall determine if the complaint was based solely upon the recommendation or provision of a treatment modality that effectively treats human disease, pain, injury, deformity or physical condition for which the licensee is treating a patient but is not universally accepted by the medical community. If OPMC determines that is the case, no further review shall be conducted and no charges shall be brought. OPMC may make such determination prior to the conclusion of the preliminary review. Finally, the bill re-states that "the licensee shall otherwise abide by all other applicable professional requirements," to ensure OPMCs continued strong role in protecting the public.

Section 3 sets forth the effective date.

Justification

Both houses of the legislature unanimously approved legislation (S 7854/A 7558-B) in June, 2014 which codified OPMC internal policy written in 2005 prohibiting the identification, investigation or charging of a practitioner based solely on their recommendation or provision of a treatment modality that is currently not universally accepted by the medical community, but that effectively treats human disease, pain, injury, deformity or physical condition. That OPMC guidance, like the legislation, was based on existing law governing the practice of medicine (Article 131 of the Education Law) and specifically section 6527 paragraph 4 of the Education Law which

clarifies that the Article shall not be construed to, among other things, affect or prevent the physician's use of "whatever medical care, conventional or non-conventional, which effectively treats human disease, pain, injury, deformity or physical condition."

This original legislation was signed into law in December, 2014 with the understanding that the amendments contained in this bill would be adopted as a chapter amendment to further clarify and address concerns that were raised. More specifically, this bill ensures that the OPMC may investigate all complaints as it is mandated to do, ensuring that patient treatment is appropriate and effective. However, this bill provides that such investigation shall be limited to a preliminary review, which may include an internal clinical review, where such complaint or report is based solely upon the recommendation or provision of a treatment modality that is not universally accepted by the medical profession, including but not limited to treatment of Lyme disease and other tick borne diseases. This bill further clarifies that by the conclusion of a preliminary review by OPMC, a determination shall be made as to whether the complaint is based solely upon a treatment modality that is not universally accepted but is effective in treating the condition the licensee is treating a particular patient for and, if that is the case, no further review nor any charges shall be brought.

As clearly stated in this bill, the original legislation, and OPMC's own 2005 guidance, the treatment modality that is recommended or provided must be one that "effectively treats human disease, pain, injury, deformity or physical condition." This legislation provides the appropriate balance to ensure that patients seeking and receiving effective treatment from licensees, that may not be universally accepted by the medical community, can get the care they seek, while at the same time insuring that OPMC's role in identifying and responding to concerns or complaints of misconduct by licensees continues to be strong and protective of our health care system as it should. This bill, like the original, affirmatively states that the licensee shall otherwise abide by all other applicable professional requirements.

Legislative history

This is an amendment to Chapter 532 of the laws of 2014.

Fiscal implications

None.

Effective date

This bill shall take effect immediately and shall apply to any professional discipline matter or administrative or judicial review thereof pending on or after the date on which this act takes effect; provided amendments to section 230 PHL made by section 2 of the bill shall expire therewith.