S08298 Summary:

BILL NO    S08298A

SAME AS    Same as A11136-A

SPONSOR    HANNON

COSPNSR    FUSCHILLO, LAVALLE, MARCELLINO, MORAHAN, PADAVAN, RATH, TRUNZO, YOUNG

MLTSPNSR

Amd SS230, 230-a, 2805-k, 230-d, Art 2 Title 2-E Title Head, SS239 & 2995-a,
add SS239-a, 239-b & 2997-b, Pub Health L; amd SS6505-b, 6524 & 6530, Ed L; add
S380.85, CP L

Relates to clarifying and strengthening the authority of the board for
professional medical conduct to discipline physicians and to enhancing
infection control training and practices.

S08298 Actions:

BILL NO    S08298A

05/23/2008 REFERRED TO RULES
06/23/2008 AMEND (T) AND RECOMMIT TO RULES
06/23/2008 PRINT NUMBER 8298A
06/24/2008 ORDERED TO THIRD READING CAL.2171
06/24/2008 MESSAGE OF NECESSITY - 3 DAY MESSAGE
06/24/2008 PASSED SENATE
06/24/2008 DELIVERED TO ASSEMBLY
06/24/2008 referred to codes
06/24/2008 substituted for a11136a
06/24/2008 ordered to third reading rules cal.825
06/24/2008 message of necessity - 3 day message
06/24/2008 passed assembly
06/24/2008 returned to senate
07/25/2008 DELIVERED TO GOVERNOR
08/05/2008 SIGNED CHAP.477

S08298 Votes:

BILL: S08298A DATE: 06/24/2008  MOTION:                       YEA/NAY: 140/000

Abbate  Y  Calhoun Y  Espaill Y  Hyer-Sp Y  Markey  Y  Pretlow Y  Sweeney Y
Alessi  Y  Camara  ER Farrell Y  Jacobs  Y  Mayerso Y  Quinn   Y  Tedisco Y
Alfano  Y  Canestr Y  Fields  Y  Jaffee  Y  McDonal ER Rabbitt Y  Thiele  Y
Amedore Y  Carrozz ER Finch   Y  Jeffrie Y  McDonou Y  Raia    Y  Titone  Y
Arroyo  ER Christe Y  Fitzpat Y  John    Y  McEneny Y  Ramos   Y  Titus   Y
Aubry   Y  Clark   Y  Gabrysz Y  Kavanag Y  McKevit Y  Reilich Y  Tobacco Y
Bacalle Y  Cole    Y  Galef   Y  Kellner Y  Miller  Y  Reilly  Y  Towns   Y
Ball    Y  Colton  Y  Gantt   ER Kirwan  Y  Millman Y  Rive J  ER Townsen Y
Barclay Y  Conte   Y  Gianari Y  Kolb    Y  Molinar Y  Rive N  Y  Walker  Y
Barra   Y  Cook    Y  Giglio  Y  Koon    ER Morelle Y  Rive PM Y  Weinste Y
Benedet Y  Crouch  Y  Glick   Y  Lafayet Y  Nolan   ER Robinso Y  Weisenb Y
Benjami Y  Cusick  Y  Gordon  Y  Lancman Y  Oaks    Y  Rosenth Y  Weprin  Y
Bing    Y  Cymbrow Y  Gottfri Y  Latimer Y  O`Donne Y  Saladin Y  Wright  Y
Boyland Y  DelMont Y  Greene  Y  Lavine  Y  O`Mara  Y  Sayward Y  Young   Y
Boyle   Y  Destito Y  Gunther Y  Lentol  Y  Ortiz   Y  Scarbor Y  Zebrows Y
Bradley Y  Diaz LM Y  Hawley  Y  Lifton  Y  Parment Y  Schimel Y  Mr Spkr Y
Brennan Y  Diaz R  Y  Hayes   Y  Lope PD Y  Paulin  Y  Schimmi Y
Brodsky Y  Dinowit Y  Heastie Y  Lope VJ Y  Peoples Y  Schroed Y
Brook-K Y  Duprey  Y  Hevesi  Y  Lupardo Y  Peralta Y  Scozzaf Y
Burling Y  Eddingt Y  Hikind  Y  Magee   Y  Perry   Y  Seminer Y
Butler  Y  Englebr Y  Hooper  Y  Magnare Y  Pheffer Y  Spano   Y
Cahill  Y  Errigo  Y  Hoyt    Y  Maisel  Y  Powell  Y  Stirpe  Y

S08298 Memo:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                        8298--A

                                   I N  S E N A T E

                                     May 23, 2008
                                      ___________

       Introduced  by  Sens.  HANNON,  FLANAGAN,  FUSCHILLO,  LARKIN,  LAVALLE,
         MARCELLINO, MORAHAN, PADAVAN, RATH, TRUNZO, YOUNG --  (at  request  of
         the  Governor)  -- read twice and ordered printed, and when printed to
         be committed to the Committee on Rules -- committee  discharged,  bill
         amended,  ordered reprinted as amended and recommitted to said commit-
         tee

       AN ACT to amend the public health law, the education law and the  crimi-
         nal  procedure  law,  in  relation to clarifying and strengthening the
         authority of the board for professional medical conduct to  discipline
         physicians and other licensees; and to amend the public health law and
         the education law, in relation to enhancing infection control training
         and practices

         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,  as
    2  amended  by  chapter  627  of  the  laws  of 1996, is amended to read as
    3  follows:
    4    7. (A) The board, by its committees  on  professional  conduct,  shall
    5  conduct disciplinary proceedings as prescribed in this section and shall
    6  assist in other professional conduct matters as prescribed by the chair-
    7  person.    In  this  section  the  term "licensee" shall mean physician,
    8  including a physician practicing under a limited permit, a medical resi-
    9  dent, physician`s assistant and specialist`s assistant. A  committee  on
   10  professional  conduct, on notice to the licensee and after affording the
   11  licensee, the office of professional medical conduct, and  their  attor-
   12  neys  an  opportunity  to be heard, shall have the authority to direct a
   13  licensee to submit to a medical  or  psychiatric  examination  when  the
   14  committee has reason to believe the licensee may be impaired by alcohol,
   15  drugs, physical disability or mental disability. The committee, with the
   16  advice  of  the licensee and the office of professional medical conduct,
   17  shall designate the physician who  will  conduct  the  examination.  The
   18  results  of the examination shall be provided by the examining physician
   19  to the committee, the licensee, and the office of  professional  medical
   20  conduct. The licensee may also obtain a physician to conduct an examina-

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             { } is old law to be omitted.
                                                                  LBD12058-11-8

       S. 8298--A                          2

    1  tion  the  results  of  which shall be provided to the committee and the
    2  office of professional medical conduct.
    3    (B)  A  COMMITTEE ON PROFESSIONAL CONDUCT MAY SIT AS AN ADMINISTRATIVE
    4  TRIBUNAL FOR THE PURPOSE OF ISSUING AN ORDER AUTHORIZING THE  OFFICE  OF
    5  PROFESSIONAL   MEDICAL  CONDUCT  TO  OBTAIN  MEDICAL  RECORDS  OR  OTHER
    6  PROTECTED HEALTH INFORMATION PERTAINING TO THE  LICENSEE`S  PHYSICAL  OR
    7  MENTAL  CONDITION  WHEN  THE  COMMITTEE  HAS  REASON TO BELIEVE THAT THE
    8  LICENSEE MAY BE IMPAIRED  BY  ALCOHOL,  DRUGS,  PHYSICAL  DISABILITY  OR
    9  MENTAL DISABILITY AND THAT THE RECORDS OR INFORMATION MAY BE RELEVANT TO
   10  THE  ALLEGED  IMPAIRMENT  OR  THAT  INFORMATION REGARDING THE LICENSEE`S
   11  MEDICAL CONDITION MAY BE RELEVANT TO AN  INQUIRY  INTO  A  REPORT  OF  A
   12  COMMUNICABLE DISEASE, AS DEFINED BY THE STATE SANITARY CODE OR HIV/AIDS.
   13  NO SUCH ORDER SHALL BE ISSUED EXCEPT ON NOTICE TO THE LICENSEE AND AFTER
   14  AFFORDING THE LICENSEE AND THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT AN
   15  OPPORTUNITY TO BE HEARD.
   16    (C) A COMMITTEE ON PROFESSIONAL CONDUCT, ON NOTICE TO THE LICENSEE AND
   17  AFTER  AFFORDING  THE  LICENSEE  AND  THE OFFICE OF PROFESSIONAL MEDICAL
   18  CONDUCT AN OPPORTUNITY TO BE HEARD, SHALL HAVE THE AUTHORITY TO DIRECT A
   19  LICENSEE TO SUBMIT TO A CLINICAL COMPETENCY EXAMINATION WHEN THE COMMIT-
   20  TEE HAS REASON TO BELIEVE THAT THE LICENSEE HAS PRACTICED WITH  INCOMPE-
   21  TENCE, GENERALLY IN HIS OR HER MEDICAL PRACTICE OR IN A SPECIFIC AREA OF
   22  HIS  OR  HER  MEDICAL  PRACTICE.  THE  COMMITTEE, WITH THE ADVICE OF THE
   23  LICENSEE AND THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT, SHALL DESIGNATE
   24  THE FACILITY OR INSTITUTION TO CONDUCT THE CLINICAL COMPETENCY  EXAMINA-
   25  TION.  THE  RESULTS  OF  THE  CLINICAL  COMPETENCY  EXAMINATION SHALL BE
   26  PROVIDED BY THE FACILITY OR INSTITUTION TO THE COMMITTEE,  THE  LICENSEE
   27  AND  THE  OFFICE  OF PROFESSIONAL MEDICAL CONDUCT. THE LICENSEE MAY ALSO
   28  OBTAIN AN ACCREDITED FACILITY  OR  INSTITUTION  TO  CONDUCT  A  CLINICAL
   29  COMPETENCY  EXAMINATION,  THE  RESULTS OF WHICH SHALL BE PROVIDED TO THE
   30  COMMITTEE AND THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT.
   31    S 2. Subdivision 9-a of section 230 of the public health law, as added
   32  by chapter 542 of the laws of 2003, is amended to read as follows:
   33    9-a. At any time, if the board for professional medical conduct or the
   34  office of professional  medical  conduct  determines  that  there  is  a
   35  reasonable  belief  that  {a  criminal  offense} AN ACT OR OMISSION THAT
   36  CONSTITUTES A CRIME UNDER THE LAW OF THE STATE OF NEW  YORK,  ANY  OTHER
   37  STATE,  OR  THE  UNITED  STATES  has been committed by the licensee, the
   38  board for professional medical conduct or office of professional medical
   39  conduct shall notify the appropriate {district attorney} LAW ENFORCEMENT
   40  OFFICIAL OR AUTHORITY.
   41    S 3. Subparagraph (v) of paragraph (a) of subdivision  10  of  section
   42  230  of  the public health law, as amended by chapter 542 of the laws of
   43  2003, is amended to read as follows:
   44    (v) The files of the office of professional medical  conduct  relating
   45  to  the  investigation  of possible instances of professional misconduct
   46  shall be confidential and not subject to disclosure at  the  request  of
   47  any  person,  except as provided by law in a pending disciplinary action
   48  or proceeding.  The provisions of this paragraph shall not  prevent  the
   49  office  from  sharing  information  concerning investigations within the
   50  department and, pursuant to subpoena, with other duly authorized  public
   51  agencies  responsible  for  professional  regulation  or criminal prose-
   52  cution. Nothing in this subparagraph shall affect the duties of  notifi-
   53  cation  set  forth  in subdivision nine-a of this section OR PREVENT THE
   54  PUBLICATION OF CHARGES OR OF THE FINDINGS, CONCLUSIONS,  DETERMINATIONS,
   55  OR  ORDER  OF  A  HEARING COMMITTEE PURSUANT TO PARAGRAPHS (D) OR (G) OF
   56  THIS SUBDIVISION.  IN ADDITION, THE COMMISSIONER MAY DISCLOSE THE INFOR-

       S. 8298--A                          3

    1  MATION WHEN, IN HIS OR HER PROFESSIONAL  JUDGMENT,  DISCLOSURE  OF  SUCH
    2  INFORMATION  WOULD  AVERT  OR  MINIMIZE A PUBLIC HEALTH THREAT. ANY SUCH
    3  DISCLOSURE SHALL NOT AFFECT THE CONFIDENTIALITY OF OTHER INFORMATION  IN
    4  THE  FILES  OF THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT RELATED TO THE
    5  INVESTIGATION.
    6    S 4. Subparagraphs (iii) and (iv) of paragraph (a) of  subdivision  10
    7  of  section  230 of the public health law, subparagraph (iii) as amended
    8  by chapter 599 of the laws of 1996, and subparagraph (iv) as amended  by
    9  chapter 37 of the laws of 1992, are amended and a new subparagraph (vii)
   10  is added to read as follows:
   11    (iii)  In  the  investigation  of  cases  referred to an investigation
   12  committee, the licensee being investigated shall have an opportunity  to
   13  be interviewed by the office of professional medical conduct in order to
   14  provide  an explanation of the issues under investigation. {The licensee
   15  may have counsel present.} Providing an opportunity for such  an  inter-
   16  view shall be a condition precedent to the convening of an investigation
   17  committee  on  professional  misconduct  of  the  board for professional
   18  medical conduct. {Within ninety days of any interview of  the  licensee,
   19  an  investigation  committee  on  professional  conduct  of the board of
   20  professional medical conduct shall be convened. The}
   21    (A) AT LEAST TWENTY DAYS BEFORE THE INTERVIEW, EXCEPT AS OTHERWISE SET
   22  FORTH HEREIN, THE LICENSEE UNDER INVESTIGATION SHALL  BE  GIVEN  WRITTEN
   23  NOTICE  OF:  (1) A DESCRIPTION OF THE CONDUCT THAT IS THE SUBJECT OF THE
   24  INVESTIGATION; (2) THE ISSUES RELATING TO THE  CONDUCT  THAT  HAVE  BEEN
   25  IDENTIFIED  AT THE TIME OF THE NOTICE; (3) THE TIME FRAME OF THE CONDUCT
   26  UNDER INVESTIGATION; (4) THE IDENTITY OF EACH PATIENT WHOSE CONTACT WITH
   27  OR CARE BY THE LICENSEE IS BELIEVED TO BE RELEVANT TO THE INVESTIGATION;
   28  AND (5) THE FACT THAT THE LICENSEE MAY BE REPRESENTED BY COUNSEL AND MAY
   29  BE ACCOMPANIED BY A STENOGRAPHER TO TRANSCRIBE THE PROCEEDING. ALL COSTS
   30  OF TRANSCRIPTION SHALL BE PAID BY THE  LICENSEE  AND  A  COPY  SHALL  BE
   31  PROVIDED  TO  THE  DEPARTMENT  BY THE LICENSEE WITHIN THIRTY DAYS OF THE
   32  INTERVIEW.  THE NOTICE REQUIRED BY THIS SUBPARAGRAPH MAY BE  GIVEN  LESS
   33  THAN  TWENTY  DAYS  BEFORE  AN INTERVIEW IN ANY CASE WHERE THE OFFICE OF
   34  PROFESSIONAL MEDICAL CONDUCT ANTICIPATES THAT THE COMMISSIONER WILL TAKE
   35  SUMMARY ACTION UNDER SUBDIVISION TWELVE OF THIS SECTION,  PROVIDED  THAT
   36  THE  NOTICE  IS  GIVEN  WITHIN  A REASONABLE AMOUNT OF TIME PRIOR TO THE
   37  INTERVIEW AND ADVISES OF THE POSSIBLE SUMMARY ACTION.
   38    (B) WITHIN THIRTY DAYS FOLLOWING THE INTERVIEW OR, IN A CASE  WHERE  A
   39  STENOGRAPHER WAS PRESENT AT THE INTERVIEW, WITHIN FIFTEEN DAYS AFTER THE
   40  OFFICE  OF  PROFESSIONAL  MEDICAL CONDUCT RECEIVES THE TRANSCRIPT OF THE
   41  INTERVIEW, WHICHEVER IS LATER, THE LICENSEE SHALL  BE  PROVIDED  WITH  A
   42  COPY  OF  THE REPORT OF THE INTERVIEWER. IN ADDITION, THE licensee shall
   43  PROMPTLY be given written notice of issues identified subsequent to  the
   44  interview.    The licensee may submit written comments or expert opinion
   45  OR MEDICAL OR SCIENTIFIC LITERATURE THAT IS  DIRECTLY  RELEVANT  TO  THE
   46  ISSUES  THAT  HAVE BEEN IDENTIFIED BY THE OFFICE OF PROFESSIONAL MEDICAL
   47  CONDUCT to the office of professional medical conduct at any time.
   48    (C) IF THE DIRECTOR DETERMINES THAT THE MATTER SHALL BE  SUBMITTED  TO
   49  AN INVESTIGATION COMMITTEE, AN INVESTIGATION COMMITTEE SHALL BE CONVENED
   50  WITHIN NINETY DAYS OF ANY INTERVIEW OF THE LICENSEE.  THE DIRECTOR SHALL
   51  PRESENT  THE INVESTIGATION COMMITTEE WITH RELEVANT DOCUMENTATION INCLUD-
   52  ING, BUT NOT LIMITED TO: (1) A COPY OF THE ORIGINAL COMPLAINT;  (2)  THE
   53  REPORT  OF THE INTERVIEWER AND THE STENOGRAPHIC RECORD IF ONE WAS TAKEN;
   54  (3) THE REPORT OF ANY  MEDICAL  OR  SCIENTIFIC  EXPERT;  (4)  COPIES  OF
   55  REPORTS   OF   ANY  PATIENT  RECORD  REVIEWS;  AND  (5)  THE  LICENSEE`S
   56  SUBMISSIONS.

       S. 8298--A                          4

    1    (D) IF THE DIRECTOR DETERMINES TO CLOSE AN INVESTIGATION FOLLOWING  AN
    2  INTERVIEW WITHOUT PRESENTATION TO AN INVESTIGATION COMMITTEE, THE OFFICE
    3  OF PROFESSIONAL MEDICAL CONDUCT SHALL NOTIFY THE LICENSEE IN WRITING.
    4    (iv)  If  the  director of the office of professional medical conduct,
    5  after obtaining the  concurrence  of  a  majority  of  an  investigation
    6  committee,  and  after consultation with the executive secretary, deter-
    7  mines that a hearing is warranted the  director  shall,  within  fifteen
    8  days thereafter, direct counsel to prepare the charges.  IF THE INVESTI-
    9  GATION  COMMITTEE  IS  UNANIMOUS  IN  ITS  CONCURRENCE THAT A HEARING IS
   10  WARRANTED, THE CHARGES SHALL BE MADE PUBLIC UNDER PARAGRAPH (D) OF  THIS
   11  SUBDIVISION.  IF  THE  INVESTIGATION  COMMITTEE  IS NOT UNANIMOUS IN ITS
   12  CONCURRENCE THAT A HEARING IS WARRANTED, THE MEMBERS OF  SUCH  COMMITTEE
   13  SHALL  VOTE  ON WHETHER THE CHARGES SHOULD BE MADE PUBLIC, AND IF ALL OF
   14  THE COMMITTEE MEMBERS VOTE IN FAVOR OF PUBLICATION, THE CHARGES SHALL BE
   15  MADE PUBLIC UNDER PARAGRAPH (D) OF THIS  SUBDIVISION.  If  the  director
   16  determines  after consultation with an investigation committee that: (A)
   17  evidence exists of a single incident of negligence  or  incompetence,  a
   18  pattern  of inappropriate prescribing or medical practice, or impairment
   19  by drugs, alcohol, physical or mental disability; (B)  a  recommendation
   20  was made by a county medical society or the medical society of the state
   21  of  New York that warrants further review; or (C) the facts underlying a
   22  verdict in a medical malpractice  action  warrant  further  review,  the
   23  director,  in addition to the authority set forth in this section, shall
   24  be authorized to conduct a comprehensive review of  patient  records  of
   25  the  licensee  and such office records of the licensee as are related to
   26  said determination. The licensee shall cooperate with the  investigation
   27  and  willful  failure  to cooperate in a substantial or material respect
   28  may result in an enforcement proceeding pursuant to subparagraph (ii) of
   29  paragraph (o) of this subdivision. If there is a question of alcoholism,
   30  alcohol abuse, drug abuse or mental illness, the director may refer  the
   31  matter  to a committee, as referred to in subparagraph (ii) of paragraph
   32  (c) of subdivision eleven of this section.
   33    (VII) THE DIRECTOR OF THE OFFICE OF PROFESSIONAL MEDICAL  CONDUCT,  IN
   34  CONSULTATION  WITH  THE PATIENT SAFETY CENTER, SHALL CAUSE A REVIEW ON A
   35  CONTINUOUS BASIS OF MEDICAL MALPRACTICE CLAIM AND  DISPOSITION  INFORMA-
   36  TION REPORTED TO THE COMMISSIONER UNDER SECTION THREE HUNDRED FIFTEEN OF
   37  THE  INSURANCE LAW, FOR THE PURPOSE OF IDENTIFYING POTENTIAL MISCONDUCT.
   38  THE OFFICE  SHALL  COMMENCE  A  MISCONDUCT  INVESTIGATION  IF  POTENTIAL
   39  MISCONDUCT  IS  IDENTIFIED  AS  A  RESULT OF SUCH REVIEW, WHICH SHALL BE
   40  BASED ON  CRITERIA  SUCH  AS  DISPOSITION  FREQUENCY,  DISPOSITION  TYPE
   41  INCLUDING  JUDGMENT AND SETTLEMENT, DISPOSITION AWARD AMOUNT, GEOGRAPHIC
   42  REGION, SPECIALTY, OR OTHER FACTORS AS APPROPRIATE IN IDENTIFYING POTEN-
   43  TIAL MISCONDUCT.
   44    S 5. Paragraph (c) of subdivision 10 of  section  230  of  the  public
   45  health law, as amended by chapter 599 of the laws of 1996, is amended to
   46  read as follows:
   47    (c)  Notice  of hearing. The board shall set the time and place of the
   48  hearing. The notice of hearing shall state (1) the date, time and  place
   49  of  the  hearing,  (2)  that the licensee shall file a written answer to
   50  each of the charges and allegations in the statement of charges no later
   51  than ten days prior to the hearing, that any charge and  allegation  not
   52  so  answered  shall be deemed admitted and that the licensee may wish to
   53  seek the advice of counsel prior to filing such  answer,  (3)  that  the
   54  licensee  shall  appear personally at the hearing and may be represented
   55  by counsel WHO SHALL BE AN ATTORNEY ADMITTED TO  PRACTICE  IN  NEW  YORK
   56  STATE,  (4)  that the licensee shall have the right to produce witnesses

       S. 8298--A                          5

    1  and evidence in his  behalf,  to  cross-examine  witnesses  and  examine
    2  evidence  produced  against  him,  and  to  have subpoenas issued in his
    3  behalf to require the production of witnesses and evidence in manner and
    4  form  as  prescribed by the civil practice law and rules or either party
    5  may issue such subpoenas in their own behalf, (5)  that  a  stenographic
    6  record  of  the  hearing will be made, and (6) such other information as
    7  may be considered appropriate by the committee.
    8    S 6. Paragraph (d) of subdivision 10 of  section  230  of  the  public
    9  health  law,  as added by chapter 109 of the laws of 1975, is amended to
   10  read as follows:
   11    (d) Service of charges and of notice of hearing. (I)  A  copy  of  the
   12  charges  and  the  notice of the hearing shall be served on the licensee
   13  personally by the board at least {twenty} THIRTY days before  the  hear-
   14  ing.  If  personal  service  cannot be made after due diligence and such
   15  fact is certified under oath, a copy of the charges and  the  notice  of
   16  hearing  shall  be  served  by  registered  or  certified  mail  to  the
   17  licensee`s last known address by the board at least fifteen days  before
   18  the hearing.
   19    (II)  THE  CHARGES  SHALL BE MADE PUBLIC, CONSISTENT WITH SUBPARAGRAPH
   20  (IV) OF PARAGRAPH (A) OF THIS SUBDIVISION, NO EARLIER THAN FIVE BUSINESS
   21  DAYS AFTER THEY ARE SERVED, AND THE CHARGES SHALL BE  ACCOMPANIED  BY  A
   22  STATEMENT  ADVISING  THE  LICENSEE  THAT  SUCH  PUBLICATION  WILL OCCUR;
   23  PROVIDED, HOWEVER, THAT CHARGES MAY  BE  MADE  PUBLIC  IMMEDIATELY  UPON
   24  ISSUANCE OF THE COMMISSIONER`S ORDER IN THE CASE OF SUMMARY ACTION TAKEN
   25  PURSUANT TO SUBDIVISION TWELVE OF THIS SECTION AND NO PRIOR NOTIFICATION
   26  OF SUCH PUBLICATION NEED BE MADE TO THE LICENSEE.
   27    (III)  IF  A HEARING ON THE CHARGES HAS NOT YET BEEN CONDUCTED OR IF A
   28  HEARING HAS BEEN CONDUCTED BUT THE COMMITTEE HAS NOT YET ISSUED A DETER-
   29  MINATION, THE PUBLICATION OF CHARGES BY THE DEPARTMENT SHALL  INCLUDE  A
   30  STATEMENT  ADVISING  THAT  THE CHARGES ARE ONLY ALLEGATIONS WHICH MAY BE
   31  CONTESTED BY THE LICENSEE IN AN ADMINISTRATIVE HEARING, EXCEPT  THAT  NO
   32  SUCH  STATEMENT  NEED BE INCLUDED IF THE LICENSEE FAILS OR AFFIRMATIVELY
   33  DECLINES TO CONTEST THE CHARGES. IN THE EVENT ANY OR  ALL  SUCH  CHARGES
   34  ARE  DISMISSED,  SUCH DISMISSAL SHALL BE MADE PUBLIC WITHIN TWO BUSINESS
   35  DAYS.
   36    S 7. Subdivision 10 of section 230 of the public health law is amended
   37  by adding a new paragraph (d-1) to read as follows:
   38    (D-1) DISCLOSURE OF EXCULPATORY EVIDENCE. AFTER SERVICE OF THE CHARGES
   39  UPON THE LICENSEE,  COUNSEL  FOR  THE  OFFICE  OF  PROFESSIONAL  MEDICAL
   40  CONDUCT SHALL, AS SOON AS PRACTICABLE AND ON A CONTINUING BASIS, PROVIDE
   41  THE  LICENSEE WITH ANY INFORMATION OR DOCUMENTATION IN THE POSSESSION OF
   42  THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT  WHICH  TENDS  TO  PROVE  THE
   43  LICENSEE`S INNOCENCE.
   44    S  8.  Paragraph  (g)  of  subdivision 10 of section 230 of the public
   45  health law, as amended by chapter 627 of the laws of 1996, is amended to
   46  read as follows:
   47    (g) Results of hearing. The committee shall make (1) findings of fact,
   48  (2) conclusions concerning the charges sustained or dismissed, and (3) a
   49  determination   regarding charges sustained or  dismissed,  and  in  the
   50  event  any  of  the  charges  have  been sustained, of the penalty to be
   51  imposed or appropriate action to be taken and the reasons for the deter-
   52  mination. For the committee to make a conclusion sustaining a charge, or
   53  determining a penalty or the appropriate action to be taken, two members
   54  of the committee must vote for such a conclusion or  determination.  The
   55  committee  shall  issue an order based on its determination. The commit-
   56  tee`s findings,  conclusions,  determinations  and  order  shall  become

       S. 8298--A                          6

    1  public upon issuance {in any case in which annulment, suspension without
    2  stay  or  revocation of the licensee`s license is ordered}.  HOWEVER, IF
    3  THE TIME TO REQUEST A REVIEW OF THE COMMITTEE`S  DETERMINATION  HAS  NOT
    4  YET EXPIRED, OR IF THE REVIEW HAS BEEN REQUESTED BUT NO DETERMINATION AS
    5  A RESULT OF THE REVIEW HAS BEEN ISSUED, SUCH PUBLICATION SHALL INCLUDE A
    6  STATEMENT  ADVISING  THAT  THE  LICENSEE OR THE DEPARTMENT MAY REQUEST A
    7  REVIEW OF THE COMMITTEE`S DETERMINATION. NO SUCH STATEMENT  IS  REQUIRED
    8  IF (A) THE TIME TO REQUEST SUCH REVIEW HAS EXPIRED WITHOUT THE FILING OF
    9  SUCH  REQUEST  BY  EITHER  OF  THE  PARTIES, OR (B) THE LICENSEE AND THE
   10  DEPARTMENT BOTH AFFIRMATIVELY DECLINE TO REQUEST REVIEW OF  THE  COMMIT-
   11  TEE`S  DETERMINATION OR FAIL TO PERFECT SUCH REVIEW. IN THE EVENT ANY OR
   12  ALL SUCH CHARGES ARE DISMISSED, SUCH  DISMISSAL  SHALL  BE  MADE  PUBLIC
   13  WITHIN TWO BUSINESS DAYS.
   14    S  9.  Paragraph  (h)  of  subdivision 10 of section 230 of the public
   15  health law, as amended by chapter 542 of the laws of 2000, is amended to
   16  read as follows:
   17    (h) Disposition of results. (I) The  findings,  conclusions,  determi-
   18  nation  and  the reasons for the determination of the committee shall be
   19  served upon the licensee, the department,  and  any  hospitals,  primary
   20  practice  settings  or  health  care  plans required to be identified in
   21  publicly disseminated physician data pursuant to paragraph (j), (n),  or
   22  (q)  of  subdivision one of section twenty-nine hundred ninety-five-a of
   23  this chapter, within sixty days of the  last  day  of  hearing.  Service
   24  shall  be  either  by certified mail upon the licensee at the licensee`s
   25  last known address and such service shall be effective upon  receipt  or
   26  seven  days  after  mailing by certified mail whichever is earlier or by
   27  personal service and such service shall be effective upon  receipt.  The
   28  licensee  shall deliver to the board the license which has been revoked,
   29  annulled, suspended  or  surrendered,  together  with  the  registration
   30  certificate, within five days after receipt of the order. If the license
   31  or  registration  certificate  is  lost, misplaced or its whereabouts is
   32  otherwise unknown, the licensee shall submit an affidavit to that effect
   33  and shall deliver such license or certificate to the board when located.
   34  The director of the office shall promptly transmit a copy of  the  order
   35  to  the  division of professional licensing services of the state educa-
   36  tion department and to each hospital at which the  licensee  has  privi-
   37  leges.
   38    (II)  WHEN  A  LICENSE  HAS BEEN: (A) REVOKED OR ANNULLED WITHOUT STAY
   39  PURSUANT TO SUBDIVISION FOUR OR FIVE OF SECTION TWO HUNDRED THIRTY-A  OF
   40  THIS  TITLE;  (B)  SURRENDERED BY A LICENSEE; (C) SUSPENDED WITHOUT STAY
   41  FOR MORE THAN ONE HUNDRED EIGHTY DAYS; OR (D) RESTRICTED TO PROHIBIT THE
   42  PRACTICE OF MEDICINE OR TO PRECLUDE THE DELIVERY OF  PATIENT  CARE,  THE
   43  LICENSEE  WHOSE LICENSE HAS BEEN SO REVOKED, SURRENDERED, ANNULLED WITH-
   44  OUT STAY, SUSPENDED WITHOUT STAY FOR MORE THAN ONE HUNDRED EIGHTY  DAYS,
   45  OR  RESTRICTED  SHALL,  WITHIN FIFTEEN DAYS OF THE EFFECTIVE DATE OF THE
   46  ORDER:
   47    (1) NOTIFY HIS OR HER PATIENTS, OF THE CESSATION OR LIMITATION OF  THE
   48  LICENSEE`S  MEDICAL  PRACTICE;  THE  NAMES OF OTHER PHYSICIANS OR HEALTH
   49  CARE PRACTITIONERS WHO HAVE AGREED  TO  ASSUME  RESPONSIBILITY  FOR  THE
   50  PATIENT`S  CARE;  THAT  THE  PATIENT  SHOULD  CONTACT ONE OF THOSE NAMED
   51  PHYSICIANS OR HEALTH CARE PRACTITIONERS, OR ANOTHER PHYSICIAN OR  HEALTH
   52  CARE  PRACTITIONER OF THE PATIENT`S CHOICE, TO DETERMINE THE HEALTH CARE
   53  PLANS, AS DEFINED IN SECTIONS FOUR THOUSAND NINE HUNDRED OF  THE  INSUR-
   54  ANCE  LAW AND FORTY-NINE HUNDRED OF THIS CHAPTER, IN WHICH THE PHYSICIAN
   55  OR HEALTH CARE PRACTITIONER PARTICIPATES AND THE POLICES AND  PROCEDURES
   56  OF  SUCH  PHYSICIAN  OR OTHER HEALTH CARE PRACTITIONER; THAT THE PATIENT

       S. 8298--A                          7

    1  SHOULD NOTIFY THE LICENSEE OF THE NAME OF THE PHYSICIAN OR OTHER  HEALTH
    2  CARE PRACTITIONER TO WHOM THE PATIENT`S MEDICAL RECORDS SHOULD BE TRANS-
    3  FERRED;  AND  THAT  THE LICENSEE WILL RETAIN, AND REMAIN RESPONSIBLE FOR
    4  THE  MAINTENANCE  OF  THE  PATIENT`S  MEDICAL  RECORDS UNTIL THE PATIENT
    5  PROVIDES NOTICE THAT THE RECORDS SHALL BE TRANSFERRED  DIRECTLY  TO  THE
    6  PATIENT,  CONSISTENT WITH THE PROVISIONS OF SECTIONS SEVENTEEN AND EIGH-
    7  TEEN OF THIS CHAPTER,  OR  TO  ANOTHER  PRACTITIONER  OF  THE  PATIENT`S
    8  CHOICE.  THE LICENSEE SHALL ALSO NOTIFY EACH HEALTH CARE PLAN WITH WHICH
    9  THE LICENSEE CONTRACTS OR IS EMPLOYED, AND EACH HOSPITAL WHERE HE OR SHE
   10  HAS  PRIVILEGES  IN  WRITING  OF  THE  CESSATION  OR  LIMITATION  OF THE
   11  LICENSEE`S MEDICAL PRACTICE.  WITHIN FORTY-FIVE DAYS  OF  THE  EFFECTIVE
   12  DATE OF THE ORDER, THE LICENSEE SHALL PROVIDE THE OFFICE OF PROFESSIONAL
   13  MEDICAL  CONDUCT WITH PROOF, IN A FORM ACCEPTABLE TO THE DIRECTOR OF THE
   14  OFFICE OF PROFESSIONAL MEDICAL CONDUCT, THAT ALL PATIENTS AND  HOSPITALS
   15  HAVE  BEEN  NOTIFIED  OF  THE  CESSATION OR LIMITATION OF THE LICENSEE`S
   16  MEDICAL PRACTICE.
   17    (2) MAKE ARRANGEMENTS FOR THE TRANSFER AND MAINTENANCE OF THE  MEDICAL
   18  RECORDS  OF  HIS  OR HER FORMER PATIENTS. RECORDS SHALL BE EITHER TRANS-
   19  FERRED TO THE LICENSEE`S FORMER PATIENTS CONSISTENT WITH THE  PROVISIONS
   20  OF  SECTIONS SEVENTEEN AND EIGHTEEN OF THIS CHAPTER OR TO ANOTHER PHYSI-
   21  CIAN OR HEALTH CARE PRACTITIONER AS  PROVIDED  IN  CLAUSE  (1)  OF  THIS
   22  SUBPARAGRAPH  WHO  SHALL  EXPRESSLY ASSUME RESPONSIBILITY FOR THEIR CARE
   23  AND MAINTENANCE AND FOR PROVIDING ACCESS TO SUCH RECORDS, AS PROVIDED IN
   24  SUBDIVISIONS TWENTY-TWO AND THIRTY-TWO  OF  SECTION  SIXTY-FIVE  HUNDRED
   25  THIRTY  OF  THE  EDUCATION LAW, THE RULES OF THE BOARD OF REGENTS OR THE
   26  REGULATIONS OF THE COMMISSIONER OF EDUCATION AND SECTIONS SEVENTEEN  AND
   27  EIGHTEEN  OF  THIS  CHAPTER.  WHEN  RECORDS  ARE  NOT TRANSFERRED TO THE
   28  LICENSEE`S FORMER PATIENTS OR TO ANOTHER PHYSICIAN OR HEALTH CARE  PRAC-
   29  TITIONER, THE LICENSEE WHOSE LICENSE HAS BEEN REVOKED, ANNULLED, SURREN-
   30  DERED, SUSPENDED OR RESTRICTED SHALL REMAIN RESPONSIBLE FOR THE CARE AND
   31  MAINTENANCE  OF  THE  MEDICAL  RECORDS OF HIS OR HER FORMER PATIENTS AND
   32  SHALL BE SUBJECT TO  ADDITIONAL  PROCEEDINGS  PURSUANT  TO  SUBDIVISIONS
   33  TWENTY-TWO, THIRTY-TWO AND FORTY OF SECTION SIXTY-FIVE HUNDRED THIRTY OF
   34  THE EDUCATION LAW IN THE EVENT THAT THE LICENSEE FAILS TO MAINTAIN THOSE
   35  MEDICAL RECORDS OR FAILS TO MAKE THEM AVAILABLE TO A FORMER PATIENT.
   36    (3)  NOTIFY  THE  OFFICE  OF PROFESSIONAL MEDICAL CONDUCT OF THE NAME,
   37  ADDRESS, AND TELEPHONE NUMBER OF ANY  PHYSICIAN  OR  OTHER  HEALTH  CARE
   38  PRACTITIONER  WHO  HAS  AGREED  TO ACCEPT RESPONSIBILITY FOR STORING AND
   39  MAINTAINING THESE MEDICAL RECORDS.
   40    (4) IN THE EVENT THAT THE LICENSEE WHOSE  LICENSE  HAS  BEEN  REVOKED,
   41  ANNULLED, SURRENDERED OR RESTRICTED TO PROHIBIT THE PRACTICE OF MEDICINE
   42  OR  TO  PRECLUDE  THE  DELIVERY  OF  PATIENT  CARE  HOLDS A FEDERAL DRUG
   43  ENFORCEMENT AGENCY (DEA) CERTIFICATE, ADVISE THE DEA IN WRITING  OF  THE
   44  LICENSURE  ACTION,  SURRENDER HIS OR HER DEA CONTROLLED SUBSTANCE PRIVI-
   45  LEGES TO THE DEA, AND SURRENDER ANY UNUSED DEA #222 U.S.  OFFICIAL ORDER
   46  FORMS, SCHEDULES 1 AND 2 TO THE DEA.
   47    (5) FOR LICENSEES WHOSE LICENSE HAS BEEN  REVOKED,  ANNULLED,  SURREN-
   48  DERED  OR RESTRICTED TO PROHIBIT THE PRACTICE OF MEDICINE OR TO PRECLUDE
   49  THE DELIVERY OF PATIENT CARE, RETURN ANY UNUSED NEW YORK STATE  OFFICIAL
   50  PRESCRIPTION FORMS TO THE BUREAU OF NARCOTICS ENFORCEMENT OF THE DEPART-
   51  MENT.  THE  LICENSEE SHALL CAUSE ALL OTHER PRESCRIPTION PADS BEARING THE
   52  LICENSEE`S NAME TO BE DESTROYED.  IF  NO  OTHER  LICENSEE  IS  PROVIDING
   53  SERVICES  AT  THE LICENSEE`S PRACTICE LOCATION, ALL MEDICATIONS SHALL BE
   54  PROPERLY DISPOSED.
   55    (6)  FOR  LICENSEES  WHOSE  LICENSE  TO  PRACTICE  HAS  BEEN  REVOKED,
   56  ANNULLED, SURRENDERED OR RESTRICTED TO PROHIBIT THE PRACTICE OF MEDICINE

       S. 8298--A                          8

    1  OR  TO PRECLUDE THE DELIVERY OF PATIENT CARE, REFRAIN FROM NEW ADVERTIS-
    2  ING AND MAKE REASONABLE EFFORTS TO CEASE CURRENT  ADVERTISING  BY  WHICH
    3  HIS OR HER ELIGIBILITY TO PRACTICE MEDICINE IS REPRESENTED.
    4    IN  ADDITION  TO  ANY  OTHER  PENALTY  PROVIDED FOR IN LAW, FAILURE TO
    5  COMPLY WITH THE  REQUIREMENTS  OF  THIS  SUBPARAGRAPH  SHALL  CONSTITUTE
    6  MISCONDUCT THAT MAY BE PROSECUTED PURSUANT TO THIS SECTION AND WHICH MAY
    7  SUBJECT  THE LICENSEE TO THE IMPOSITION OF ADDITIONAL PENALTIES PURSUANT
    8  TO SECTION TWO HUNDRED THIRTY-A OF THIS TITLE.
    9    S 10. Subdivision 10 of section  230  of  the  public  health  law  is
   10  amended by adding a new paragraph (q) to read as follows:
   11    (Q)  AT  ANY TIME SUBSEQUENT TO THE FINAL CONCLUSION OF A PROFESSIONAL
   12  MISCONDUCT PROCEEDING AGAINST A LICENSEE, WHETHER UPON THE DETERMINATION
   13  AND ORDER OF A HEARING COMMITTEE ISSUED PURSUANT  TO  PARAGRAPH  (H)  OF
   14  THIS  SUBDIVISION OR UPON THE DETERMINATION AND ORDER OF THE ADMINISTRA-
   15  TIVE REVIEW BOARD ISSUED PURSUANT TO PARAGRAPH (D) OF  SUBDIVISION  FOUR
   16  OF  SECTION  TWO HUNDRED THIRTY-C OF THIS TITLE, THE LICENSEE MAY FILE A
   17  PETITION WITH THE DIRECTOR, REQUESTING VACATUR OR  MODIFICATION  OF  THE
   18  DETERMINATION  AND ORDER. THE DIRECTOR SHALL, AFTER REVIEWING THE MATTER
   19  AND AFTER CONSULTING WITH DEPARTMENT COUNSEL, DETERMINE IN  THE  REASON-
   20  ABLE EXERCISE OF HIS OR HER DISCRETION WHETHER THERE IS NEW AND MATERIAL
   21  EVIDENCE THAT WAS NOT PREVIOUSLY AVAILABLE WHICH, HAD IT BEEN AVAILABLE,
   22  WOULD  LIKELY  HAVE  LED TO A DIFFERENT RESULT, OR WHETHER CIRCUMSTANCES
   23  HAVE OCCURRED SUBSEQUENT TO THE ORIGINAL DETERMINATION  THAT  WARRANT  A
   24  RECONSIDERATION OF THE MEASURE OF DISCIPLINE. UPON DETERMINING THAT SUCH
   25  EVIDENCE  OR  CIRCUMSTANCES EXIST, THE DIRECTOR SHALL HAVE THE AUTHORITY
   26  TO JOIN THE LICENSEE IN AN APPLICATION TO THE CHAIRPERSON OF  THE  STATE
   27  BOARD  FOR PROFESSIONAL MEDICAL CONDUCT TO VACATE OR MODIFY THE DETERMI-
   28  NATION AND ORDER, AS THE DIRECTOR MAY DEEM APPROPRIATE. UPON  THE  JOINT
   29  APPLICATION OF THE LICENSEE AND THE DIRECTOR, THE CHAIRPERSON SHALL HAVE
   30  THE AUTHORITY TO GRANT OR DENY SUCH APPLICATION.
   31    S  11.  Paragraph  (a)  of subdivision 12 of section 230 of the public
   32  health law, as amended by chapter 627 of the laws of 1996, is amended to
   33  read as follows:
   34    (a) Whenever the commissioner, (I) AFTER BEING PRESENTED WITH INFORMA-
   35  TION INDICATING THAT A LICENSEE IS CAUSING, ENGAGING IN OR MAINTAINING A
   36  CONDITION  OR  ACTIVITY  WHICH  HAS  RESULTED  IN  THE  TRANSMISSION  OR
   37  SUSPECTED  TRANSMISSION,  OR  IS  LIKELY TO LEAD TO THE TRANSMISSION, OF
   38  COMMUNICABLE DISEASE AS DEFINED IN THE STATE SANITARY CODE OR  HIV/AIDS,
   39  BY  THE STATE AND/OR A LOCAL HEALTH DEPARTMENT AND IF IN THE COMMISSION-
   40  ER`S OPINION IT WOULD BE PREJUDICIAL TO THE INTERESTS OF THE  PEOPLE  TO
   41  DELAY  ACTION  UNTIL  AN  OPPORTUNITY  FOR  A HEARING CAN BE PROVIDED IN
   42  ACCORDANCE WITH THE PREHEARING AND HEARING PROVISIONS OF  THIS  SECTION;
   43  OR  (II)  after  an investigation and a recommendation by a committee on
   44  professional  conduct  of  the  state  board  for  professional  medical
   45  conduct, based upon a determination that a licensee is causing, engaging
   46  in  or  maintaining  a condition or activity which in the commissioner`s
   47  opinion constitutes an imminent danger to the health of the people,  and
   48  that  it  therefore  appears  to  be prejudicial to the interests of the
   49  people to delay action  until  an  opportunity  for  a  hearing  can  be
   50  provided  in  accordance  with  the prehearing and hearing provisions of
   51  this section{,}; the commissioner may order  the  licensee,  by  written
   52  notice,  to  discontinue  such  dangerous  condition or activity or take
   53  certain action immediately and for a period of ninety days from the date
   54  of service of the order. Within ten days from the date of service of the
   55  said order, the state  board  for  professional  medical  conduct  shall
   56  commence  and regularly schedule such hearing proceedings as required by

       S. 8298--A                          9

    1  this section, provided, however, that the  hearing  shall  be  completed
    2  within  ninety  days  of the date of service of the order. To the extent
    3  that the issue of imminent danger can be  proven  without  the  attorney
    4  representing  the  office of professional medical conduct putting in its
    5  entire case, the committee of the board shall first determine whether by
    6  a preponderance of the evidence the licensee is causing, engaging in  or
    7  maintaining a condition or activity which constitutes an imminent danger
    8  to  the  health  of  the people. The attorney representing the office of
    9  professional medical conduct shall have the burden of going forward  and
   10  proving  by  a  preponderance of the evidence that the licensee`s condi-
   11  tion, activity or practice constitutes an imminent danger to the  health
   12  of the people. The licensee shall have an opportunity to be heard and to
   13  present  proof.  When  both  the  office and the licensee have completed
   14  their cases with respect to the question of imminent danger, the commit-
   15  tee shall promptly make a recommendation  to  the  commissioner  on  the
   16  issue  of imminent danger and determine whether the summary order should
   17  be left in effect, modified or vacated, and continue the hearing on  all
   18  the  remaining  charges,  if  any,  in  accordance with paragraph (f) of
   19  subdivision ten of this section. Within  ten  days  of  the  committee`s
   20  recommendation, the commissioner shall determine whether or not to adopt
   21  the committee`s recommendations, in whole or in part, and shall leave in
   22  effect,  modify or vacate his summary order. The state board for profes-
   23  sional medical conduct shall make every reasonable effort to  avoid  any
   24  delay in completing and determining such proceedings. If, at the conclu-
   25  sion  of  the  hearing, (i) the hearing committee of the board finds the
   26  licensee guilty of one or more of the charges which are  the  basis  for
   27  the summary order, (ii) the hearing committee determines that the summa-
   28  ry  order  continue,  and (iii) the ninety day term of the order has not
   29  expired, the summary order shall remain in full force and effect until a
   30  final decision has been rendered by  the  committee  or,  if  review  is
   31  sought,  by  the  administrative  review board. A summary order shall be
   32  public upon issuance.
   33    S 12. Subdivision 16 of section 230  of  the  public  health  law,  as
   34  amended  by  chapter  266  of  the  laws  of 1986, is amended to read as
   35  follows:
   36    16. Liability. Notwithstanding any other provision of law, persons who
   37  assist the department as consultants, expert  witnesses,  ADMINISTRATIVE
   38  OFFICERS  or  monitors in the investigation {or}, prosecution OR HEARING
   39  of  alleged  professional  misconduct,  licensure  matters,  restoration
   40  proceedings,  probation, or criminal prosecutions for unauthorized prac-
   41  tice, shall not be liable for damages in any civil action or  proceeding
   42  as  a result of such assistance, except upon proof of actual malice. The
   43  attorney general shall  defend  such  persons  in  any  such  action  or
   44  proceeding,  in accordance with section seventeen of the public officers
   45  law.
   46    S 13. Subdivision 2 of section 230-a of  the  public  health  law,  as
   47  added by chapter 606 of the laws of 1991, is amended to read as follows:
   48    2.  Suspension of license, (a) wholly, for a fixed period of time; (b)
   49  wholly, except to the  limited  extent  required  for  the  licensee  to
   50  successfully  complete  a  course  of  retraining; (c) wholly, until the
   51  licensee  successfully  completes  a  course  of  therapy  or  treatment
   52  prescribed  by the board; (d) WHOLLY, UNTIL THE LICENSEE COMPLETES REHA-
   53  BILITATION TO THE SATISFACTION OF  THE  BOARD;  (E)  WHOLLY,  UNTIL  THE
   54  LICENSEE  COMPLIES  WITH  THE  TERMS OR CONDITIONS OF A BOARD ORDER; (F)
   55  partially,  until  the  licensee  successfully  completes  a  course  of
   56  retraining  in  the  area  to  which  the  suspension applies; {(e)} (G)

       S. 8298--A                         10

    1  partially, for a specified period OR UNTIL THE  LICENSEE  COMPLIES  WITH
    2  THE TERMS OR CONDITIONS OF A BOARD ORDER;
    3    S  14.  Paragraph (f) of subdivision 1 of section 2805-k of the public
    4  health law, as added by chapter 786 of the laws of 1992, is  amended  to
    5  read as follows:
    6    (f)  Documentation  that  the  physician,  dentist  or  podiatrist has
    7  completed the course work or training as mandated by section two hundred
    8  {thirty-eight} THIRTY-NINE of this chapter or section six thousand  five
    9  hundred  five-b  of  the education law. A hospital or facility shall not
   10  grant or renew professional privileges or association  to  a  physician,
   11  dentist,  or podiatrist who has not completed such course work or train-
   12  ing.
   13    S 15. Subdivision 4 of section 230-d of  the  public  health  law,  as
   14  added by chapter 365 of the laws of 2007, is amended to read as follows:
   15    4.  Licensees  shall report adverse events to the department`s patient
   16  safety center within one business day of the occurrence of such  adverse
   17  event{,  and the}. LICENSEES SHALL ALSO REPORT ANY SUSPECTED HEALTH CARE
   18  DISEASE TRANSMISSION ORIGINATING IN THEIR PRACTICES TO THE PATIENT SAFE-
   19  TY CENTER WITHIN ONE BUSINESS DAY OF BECOMING AWARE  OF  SUCH  SUSPECTED
   20  TRANSMISSION.  FOR  PURPOSES OF THIS SECTION, HEALTH CARE DISEASE TRANS-
   21  MISSION SHALL MEAN THE TRANSMISSION OF A REPORTABLE COMMUNICABLE DISEASE
   22  THAT IS BLOOD BORNE FROM A HEALTH CARE  PROFESSIONAL  TO  A  PATIENT  OR
   23  BETWEEN  PATIENTS AS A RESULT OF IMPROPER INFECTION CONTROL PRACTICES BY
   24  THE HEALTH CARE PROFESSIONAL. THE reported data shall be subject to  all
   25  confidentiality provisions provided by section twenty-nine hundred nine-
   26  ty-eight-e of this chapter.
   27    S  16.  The title heading of title 2-E of article 2 and section 239 of
   28  the public health law, as added by chapter 786 of the laws of 1992,  the
   29  title heading as relettered and section 239 as renumbered by chapter 443
   30  of the laws of 1993, are amended to read as follows:
   31                   {HIV/HBV} HIV/HBV/HCV PREVENTION TRAINING
   32    S  239.  Course  work or training in infection control practices.  (A)
   33  Every physician, physician assistant and specialist assistant practicing
   34  in the state shall, on or before July first,  nineteen  hundred  ninety-
   35  four  and  every  four  years  thereafter, {(a)} complete course work or
   36  training, appropriate to the professional`s practice,  approved  by  the
   37  department  regarding infection control and barrier precautions, includ-
   38  ing engineering and work practice controls, in accordance with regulato-
   39  ry standards promulgated by the  department  in  consultation  with  the
   40  department of education, to prevent the transmission of HIV {or}, HBV OR
   41  HCV  in  the  course  of professional practice {and}. SUCH COURSEWORK OR
   42  TRAINING MUST ALSO BE COMPLETED BY EVERY MEDICAL STUDENT, MEDICAL  RESI-
   43  DENT  AND PHYSICIAN ASSISTANT STUDENT IN THE STATE AS PART OF THE ORIEN-
   44  TATION PROGRAMS CONDUCTED BY MEDICAL SCHOOLS, MEDICAL RESIDENCY PROGRAMS
   45  AND PHYSICIAN ASSISTANT PROGRAMS.
   46    (b) {so document} EVERY  PHYSICIAN,  PHYSICIAN  ASSISTANT,  SPECIALIST
   47  ASSISTANT,  MEDICAL  STUDENT,  MEDICAL  RESIDENT AND PHYSICIAN ASSISTANT
   48  STUDENT MUST PROVIDE to the  department{,}  DOCUMENTATION  DEMONSTRATING
   49  THE  COMPLETION OF AND COMPETENCE IN THE COURSEWORK OR TRAINING REQUIRED
   50  UNDER SUBDIVISION (A) OF THIS SECTION, provided however, that physicians
   51  subject to the provisions of paragraph (f) of subdivision one of section
   52  twenty-eight hundred five-k of this chapter shall  not  be  required  to
   53  {report} PROVIDE SUCH DOCUMENTATION to the department.
   54    (C)  The department shall provide an exemption from {this requirement}
   55  THE REQUIREMENTS IMPOSED BY SUBDIVISION (A) OF THIS  SECTION  to  anyone
   56  who  requests  such an exemption and who (i) clearly demonstrates to the

       S. 8298--A                         11

    1  department`s satisfaction that there would be no need for him or her  to
    2  complete  such  course  work or training because of the nature of his or
    3  her practice or (ii) that he or she has completed course work or  train-
    4  ing  deemed  by  the  department  to  be equivalent to the standards for
    5  course work or training approved by  the  department  pursuant  to  this
    6  section.    AN  INDIVIDUAL GRANTED AN EXEMPTION MUST REAPPLY TO CONTINUE
    7  SUCH EXEMPTION EVERY FOUR YEARS.
    8    (D) The department shall consult with organizations representative  of
    9  professions,  institutions and those with expertise in infection control
   10  and HIV {and}, HBV, AND HCV with respect  to  the  regulatory  standards
   11  promulgated  pursuant to this section. ON OR BEFORE SEPTEMBER FIRST, TWO
   12  THOUSAND EIGHT, AND PERIODICALLY THEREAFTER AS DETERMINED  NECESSARY  BY
   13  THE  COMMISSIONER,  THE DEPARTMENT, INCLUDING ITS PATIENT SAFETY CENTER,
   14  IN CONSULTATION WITH THE COUNCIL ON GRADUATE  MEDICAL  EDUCATION,  SHALL
   15  REVIEW AND REVISE THE CONTENT OF THE COURSEWORK OR TRAINING IN INFECTION
   16  CONTROL PRACTICES AS NECESSARY TO ENSURE THAT SUCH CONTENT: (I) REFLECTS
   17  THE  CURRENT  INFECTION  CONTROL  PRACTICES  AND  STANDARDS ACCEPTED AND
   18  PROMOTED BY THE MEDICAL AND SCIENTIFIC COMMUNITIES; (II) FOCUSES PARTIC-
   19  ULAR ATTENTION ON INSTRUCTION IN STANDARDS OF PRACTICE FOR WHICH COMPLI-
   20  ANCE IS SUBOPTIMAL BASED  ON  THE  DEPARTMENT`S  EXPERIENCE;  AND  (III)
   21  EMPHASIZES  THE APPLICATION OF INFECTION CONTROL STANDARDS AND PRACTICES
   22  IN OUTPATIENT AND AMBULATORY SETTINGS.
   23    S 17. The public health law is amended by adding a new  section  239-a
   24  to read as follows:
   25    S  239-A. INFECTION CONTROL GUIDELINES. THE COMMISSIONER SHALL DEVELOP
   26  EVIDENCE-BASED GUIDELINES THAT IDENTIFY KEY INFECTION CONTROL  PRACTICES
   27  IN INPATIENT AND OUTPATIENT MEDICAL CARE SETTINGS. SUCH GUIDELINES SHALL
   28  SPECIFICALLY COVER SAFE INJECTION PRACTICES. ON OR BEFORE JANUARY FIRST,
   29  TWO  THOUSAND  NINE,  AND  EVERY  YEAR  THEREAFTER,  THE DEPARTMENT WILL
   30  DISTRIBUTE THESE GUIDELINES TO  PHYSICIANS,  SPECIALIST  ASSISTANTS  AND
   31  PHYSICIAN ASSISTANTS. SUCH GUIDELINES SHALL ALSO BE MADE PUBLICLY AVAIL-
   32  ABLE.
   33    S  18.  The public health law is amended by adding a new section 239-b
   34  to read as follows:
   35    S 239-B. STUDY ON MULTIDOSE VIALS AND  DISPOSABLE  MEDICAL  EQUIPMENT.
   36  THE  DEPARTMENT  SHALL CONDUCT A STUDY ON MEDICATIONS PACKAGED IN MULTI-
   37  DOSE VIALS AND DISPOSABLE MEDICAL EQUIPMENT, INCLUDING BUT  NOT  LIMITED
   38  TO SYRINGES, NEEDLES, STOPCOCKS AND TUBING. SUCH STUDY SHALL EXAMINE:
   39    1.  EXISTING  UTILIZATION  PATTERNS  OF MULTIDOSE VIALS AND DISPOSABLE
   40  MEDICAL EQUIPMENT;
   41    2. THE POTENTIAL TO IMPROVE INFECTION CONTROL PRACTICES BY RESTRICTING
   42  THE USE OF MULTIDOSE VIALS AND MANDATING THE USE OF  DISPOSABLE  MEDICAL
   43  EQUIPMENT ENGINEERED FOR SINGLE USE; AND
   44    3. THE VIABILITY OF RESTRICTING THE USE OF MULTIDOSE VIALS AND MANDAT-
   45  ING  THE  USE OF DISPOSABLE MEDICAL EQUIPMENT ENGINEERED FOR SINGLE USE.
   46  ON OR BEFORE JANUARY FIRST, TWO THOUSAND NINE,  THE  COMMISSIONER  SHALL
   47  PROVIDE  THE GOVERNOR, THE SPEAKER OF THE ASSEMBLY, THE TEMPORARY PRESI-
   48  DENT OF THE SENATE, AND THE CHAIRPERSONS  OF  THE  ASSEMBLY  AND  SENATE
   49  HEALTH  COMMITTEES  WITH  A  REPORT SETTING FORTH THE CONCLUSIONS OF THE
   50  STUDY AND THE COMMISSIONER`S RECOMMENDATIONS REGARDING  MULTIDOSE  VIALS
   51  AND DISPOSABLE MEDICAL EQUIPMENT.
   52    S  19.    Subdivision 4 of section 2995-a of the public health law, as
   53  added by chapter 542 of the laws of 2000, is amended to read as follows:
   54    4. Each physician shall periodically report to the department on forms
   55  and in the time and manner required by the commissioner any other infor-
   56  mation as is required by the department for the development of  profiles

       S. 8298--A                         12

    1  under  this  section  which  is not otherwise reasonably obtainable.  IN
    2  ADDITION TO SUCH PERIODIC REPORTS AND PROVIDING  THE  SAME  INFORMATION,
    3  EACH  PHYSICIAN  SHALL  UPDATE HIS OR HER PROFILE INFORMATION WITHIN THE
    4  SIX MONTHS PRIOR TO THE EXPIRATION DATE OF SUCH PHYSICIAN`S REGISTRATION
    5  PERIOD, AS A CONDITION OF REGISTRATION RENEWAL UNDER ARTICLE ONE HUNDRED
    6  THIRTY-ONE OF THE EDUCATION LAW.
    7    S 20.  The public health law is amended by adding a new section 2997-b
    8  to read as follows:
    9    S  2997-B.  PAMPHLET  OF  DEPARTMENT  PROGRAMS. THE COMMISSIONER SHALL
   10  DEVELOP AND TRANSMIT TO PHYSICIANS IN THE STATE A PAMPHLET DESCRIBING  A
   11  VARIETY OF DEPARTMENT PROGRAMS AND INITIATIVES, INCLUDING BUT NOT LIMIT-
   12  ED  TO  SMOKING  CESSATION  PROGRAMS,  PUBLIC HEALTH INSURANCE PROGRAMS,
   13  HEALTH AND QUALITY IMPROVEMENT INFORMATION, THE  PATIENT  SAFETY  CENTER
   14  AND  PHYSICIAN  PROFILES.  EACH  PHYSICIAN PRACTICING IN THE STATE SHALL
   15  MAKE THE PAMPHLET AVAILABLE IN HIS OR HER  PRACTICE  RECEPTION  AREA  SO
   16  THAT IT IS ACCESSIBLE TO PATIENTS.
   17    S  21. Section 6505-b of the education law, as added by chapter 786 of
   18  the laws of 1992, is amended to read as follows:
   19    S 6505-b. Course work or  training  in  infection  control  practices.
   20  Every  dentist,  registered nurse, licensed practical nurse, podiatrist,
   21  optometrist and dental hygienist practicing in the state  shall,  on  or
   22  before  July  first,  nineteen  hundred ninety-four and every four years
   23  thereafter, complete course work or training appropriate to the  profes-
   24  sional`s practice approved by the department regarding infection control
   25  and   barrier  precautions,  including  engineering  and  work  practice
   26  controls, in accordance with regulatory  standards  promulgated  by  the
   27  department,  in  consultation with the department of health, which shall
   28  be consistent, as far as appropriate, with such standards adopted by the
   29  department of health pursuant  to  section  two  hundred  {thirty-eight}
   30  THIRTY-NINE  of  the  public  health  law to prevent the transmission of
   31  {HIV/HBV} HIV, HBV OR HCV in the course of professional  practice.  Each
   32  such professional shall document to the department at the time of regis-
   33  tration  commencing  with the first registration after July first, nine-
   34  teen hundred ninety-four that the professional has completed course work
   35  or training in accordance with this section, provided,  however  that  a
   36  professional  subject  to the provisions of paragraph (f) of subdivision
   37  one of section twenty-eight hundred five-k  of  the  public  health  law
   38  shall  not  be  required to so document. The department shall provide an
   39  exemption from this requirement to anyone who requests such an exemption
   40  and who (i) clearly demonstrates to the department`s  satisfaction  that
   41  there  would  be  no need for him or her to complete such course work or
   42  training because of the nature of his or her practice or (ii) that he or
   43  she has completed course work or training deemed by the department to be
   44  equivalent to the course work or training  approved  by  the  department
   45  pursuant  to  this  section. The department shall consult with organiza-
   46  tions representative of professions, institutions and those with  exper-
   47  tise in infection control and HIV {and}, HBV AND HCV with respect to the
   48  regulatory standards promulgated pursuant to this section.
   49    S  22.  Section  6524  of the education law is amended by adding a new
   50  subdivision 11 to read as follows:
   51    (11) NO PHYSICIAN MAY BE RE-REGISTERED UNLESS HE OR SHE,  AS  PART  OF
   52  THE  RE-REGISTRATION  APPLICATION,  INCLUDES  AN  ATTESTATION MADE UNDER
   53  PENALTY OF PERJURY, IN A FORM PRESCRIBED BY THE COMMISSIONER, THAT HE OR
   54  SHE HAS, WITHIN THE SIX MONTHS PRIOR TO SUBMISSION OF  THE  RE-REGISTRA-
   55  TION  APPLICATION,  UPDATED  HIS  OR HER PHYSICIAN PROFILE IN ACCORDANCE

       S. 8298--A                         13

    1  WITH SUBDIVISION FOUR OF SECTION TWENTY-NINE  HUNDRED  NINETY-FIVE-A  OF
    2  THE PUBLIC HEALTH LAW.
    3    S 23. Subdivision 14 of section 6530 of the education law, as added by
    4  chapter 606 of the laws of 1991, is amended to read as follows:
    5    14.  A violation of section twenty-eight hundred three-d {or}, twenty-
    6  eight hundred five-k OR SUBPARAGRAPH (II) OF PARAGRAPH (H)  OF  SUBDIVI-
    7  SION TEN OF SECTION TWO HUNDRED THIRTY of the public health law; or
    8    S 24. Subdivision 46 of section 6530 of the education law, as added by
    9  chapter 786 of the laws of 1992, is amended to read as follows:
   10    46.  A  violation of section two hundred {thirty-eight} THIRTY-NINE of
   11  the public health law by  a  professional  {other  than  a  professional
   12  subject to the provisions of paragraph (f) of subdivision one of section
   13  twenty-eight hundred five-k of the public health law}.
   14    S  25.  Section  6530  of the education law is amended by adding a new
   15  subdivision 49 to read as follows:
   16    49. EXCEPT FOR GOOD CAUSE SHOWN, FAILING TO PROVIDE WITHIN ONE DAY ANY
   17  RELEVANT RECORDS OR OTHER INFORMATION REQUESTED BY THE  STATE  OR  LOCAL
   18  DEPARTMENT  OF  HEALTH  WITH  RESPECT  TO  AN INQUIRY INTO A REPORT OF A
   19  COMMUNICABLE DISEASE AS DEFINED IN THE STATE SANITARY CODE, OR HIV/AIDS.
   20    S 26. The criminal procedure law is amended by adding  a  new  section
   21  380.85 to read as follows:
   22  S 380.85 REPORTING  SENTENCES TO OFFICE OF PROFESSIONAL MEDICAL CONDUCT;
   23             LICENSED  PHYSICIAN,  PHYSICIAN  ASSISTANT,   OR   SPECIALIST
   24             ASSISTANT.
   25    WHENEVER A PERSON WHO IS A LICENSED PHYSICIAN, PHYSICIAN ASSISTANT, OR
   26  SPECIALIST  ASSISTANT  OR  A PHYSICIAN WHO IS PRACTICING UNDER A LIMITED
   27  PERMIT OR AS A MEDICAL RESIDENT IS SENTENCED FOR A CRIME, THE COURT THAT
   28  HAS SENTENCED SUCH PERSON SHALL DELIVER A COPY  OF  THE  CERTIFICATE  OF
   29  CONVICTION  AND  PROVIDE  NOTIFICATION OF THE CONVICTION AND SENTENCE TO
   30  THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT.
   31    S 27. This act shall take effect on the ninetieth day after  it  shall
   32  have  become  a law; provided, however, that section fifteen of this act
   33  shall take effect September 1, 2008; and provided further that  sections
   34  twenty and twenty-two of this act shall take effect January 1, 2009; and
   35  provided  further that the amendments to paragraph (a) of subdivision 10
   36  of section 230 of the public health law made by sections three and  four
   37  of  this act shall not affect the expiration of such paragraph and shall
   38  be deemed to expire therewith.

A03897 Summary:

BILL NO    A03897

SAME AS    Same as Uni. S 2038

SPONSOR    Brodsky

COSPNSR    Colton, Alessi

MLTSPNSR   Gordon T, Perry

Amd S3, Work Comp L

Includes Lyme Disease (Lyme Borrcliosis) as an occupational disease which is
compensable under the workers` compensation law.

A03897 Actions:

BILL NO    A03897

01/30/2007 referred to labor
06/12/2007 reported referred to ways and means
01/09/2008 referred to labor
05/06/2008 reported referred to ways and means
06/23/2008 reported referred to rules
06/23/2008 reported
06/23/2008 rules report cal.689
06/23/2008 substituted by s2038
           S02038  AMEND=  LAVALLE
           01/30/2007 REFERRED TO LABOR
           02/05/2007 1ST REPORT CAL.101
           02/06/2007 2ND REPORT CAL.
           02/07/2007 ADVANCED TO THIRD READING
           04/23/2007 PASSED SENATE
           04/23/2007 DELIVERED TO ASSEMBLY
           04/23/2007 referred to labor
           01/09/2008 died in assembly
           01/09/2008 returned to senate
           01/09/2008 REFERRED TO LABOR
           01/22/2008 1ST REPORT CAL.53
           01/23/2008 2ND REPORT CAL.
           01/28/2008 ADVANCED TO THIRD READING
           01/29/2008 PASSED SENATE
           01/29/2008 DELIVERED TO ASSEMBLY
           01/29/2008 referred to labor
           06/23/2008 substituted for a3897
           06/23/2008 ordered to third reading rules cal.689
           06/23/2008 passed assembly
           06/23/2008 returned to senate
           07/25/2008 DELIVERED TO GOVERNOR
           08/05/2008 VETOED MEMO.66

A03897 Votes:

A03897 Memo:

 BILL NUMBER:  A3897

 TITLE OF BILL :  An act to amend the workers` compensation law, in
relation to including Lyme disease as an occupational disease

 PURPOSE OR GENERAL IDEA :  To add Lyme Disease to those occupational
diseases which are compensable under the Workers` Compensation Law.

 JUSTIFICATION :  We have worked closely with several groups to come
up with language that protects people who are harmed on the job from
lyme disease while making such that this bill applies only to those
harmed on the job.

The spread of Lyme Disease on Long Island and other parts of New York
State among workers who are involved in outdoor activities has been
growing steadily in the past few years. The disease is spread by a
tick which is encountered in the brush. The cost of treatment for this
debilitating disease is expensive.

 PRIOR LEGISLATIVE HISTORY :

S.1246 (1995-96) S.2715 (1997-98); S.1026 (1999-2000); S.0522
(2001-2002); S.3321 (2003-2004), A.1458 (2005-06; Veto 359 of 2006)..

 FISCAL IMPLICATION FOR STATE AND LOCAL GOVERNMENTS :  Compensation
for those afflicted under Workers` Compensation.

 EFFECTIVE DATE :  This act shall take effect immediately.