NY Educ L § 6530 (2021)
2021 New York Laws EDN - Education Title 8 - The Professions Article 131-A - Definitions of Professional Misconduct Applicable to Physicians, Physician's Assistants and Specialist's Assistants 6530 - Definitions of Professional Misconduct.

§ 6530. Definitions  of professional misconduct. Each of the following is professional misconduct,  and  any  licensee  found  guilty  of  such misconduct under the procedures prescribed in section two hundred thirty of  the public health law shall be subject to penalties as prescribed in section two hundred thirty-a of the public health law  except  that  the charges may be dismissed in the interest of justice:   1. Obtaining the license fraudulently;   2.  Practicing  the  profession  fraudulently or beyond its authorized scope;   3.  Practicing  the  profession  with  negligence  on  more  than  one occasion;   4.  Practicing  the  profession  with gross negligence on a particular occasion;   5. Practicing the  profession  with  incompetence  on  more  than  one occasion;   6. Practicing the profession with gross incompetence;   7.  Practicing  the  profession  while  impaired  by  alcohol,  drugs, physical disability, or mental disability;   8. Being a habitual abuser of alcohol, or  being  dependent  on  or  a habitual  user  of narcotics, barbiturates, amphetamines, hallucinogens, or other drugs having similar effects, except  for  a  licensee  who  is maintained  on an approved therapeutic regimen which does not impair the ability to practice, or having a psychiatric condition which impairs the licensee's ability to practice;   9. (a) Being convicted of  committing  an  act  constituting  a  crime under:  (i) New York state law or,  (ii) federal law or,  (iii)  the  law of another jurisdiction and which, if committed within this state, would have constituted a crime under New York state law;  (b) Having been found guilty  of  improper  professional  practice  or professional  misconduct  by a duly authorized professional disciplinary agency of another state where the conduct upon  which  the  finding  was based  would,  if  committed  in New York state, constitute professional misconduct under the laws of New York state;  (c)  Having  been  found  guilty  in  an  adjudicatory  proceeding  of violating  a state or federal statute or regulation, pursuant to a final decision or determination, and when  no  appeal  is  pending,  or  after resolution  of  the proceeding by stipulation or agreement, and when the violation would constitute  professional  misconduct  pursuant  to  this section;  (d)  Having his or her license to practice medicine revoked, suspended or having  other  disciplinary  action  taken,  or  having  his  or  her application  for  a  license  refused,  revoked  or  suspended or having voluntarily  or  otherwise  surrendered  his  or  her  license  after  a disciplinary  action  was  instituted  by a duly authorized professional disciplinary agency of another state, where the conduct resulting in the revocation,  suspension  or  other  disciplinary  action  involving  the license  or  refusal,  revocation  or suspension of an application for a license or the surrender of the license would, if committed in New  York state,  constitute  professional  misconduct  under the laws of New York state;  (e) Having been found by the commissioner of health to be in violation of article thirty-three of the public health law;   10. Refusing to provide professional service to a  person  because  of such person's race, creed, color or national origin;   11.  Permitting,  aiding  or  abetting an unlicensed person to perform activities requiring a license;    12. Practicing the  profession  while  the  license  is  suspended  or inactive  as  defined  in  subdivision  thirteen  of section two hundred thirty of the public health law, or willfully  failing  to  register  or notify  the  department  of  education  of any change of name or mailing address, or, if a professional service corporation, willfully failing to comply  with sections fifteen hundred three and fifteen hundred fourteen of the business corporation law or, if  a  university  faculty  practice corporation  wilfully failing to comply with paragraphs (b), (c) and (d) of section fifteen hundred three and section fifteen hundred fourteen of the business corporation law;   13. A willful violation by a licensee of subdivision eleven of section two hundred thirty of the public health law;   14. A violation of section twenty-eight hundred three-d,  twenty-eight hundred  five-k or subparagraph (ii) of paragraph (h) of subdivision ten of section two hundred thirty of the public health law; or   15. Failure to comply with an order  issued  pursuant  to  subdivision seven,  paragraph  (a)  of subdivision ten, and subdivision seventeen of section two hundred thirty of the public health law;   16. A willful or grossly negligent failure to comply with  substantial provisions  of  federal,  state,  or  local  laws, rules, or regulations governing the practice of medicine;   17. Exercising undue influence on the patient, including the promotion of the sale of services, goods, appliances, or drugs in such  manner  as to  exploit  the  patient for the financial gain of the licensee or of a third party;   18. Directly or indirectly offering, giving, soliciting, or  receiving or  agreeing  to  receive,  any  fee or other consideration to or from a third party for the referral of a patient  or  in  connection  with  the performance of professional services;   19.  Permitting  any  person  to  share  in  the fees for professional services, other than: a partner, employee, associate in  a  professional firm or corporation, professional subcontractor or consultant authorized to  practice  medicine, or a legally authorized trainee practicing under the supervision of  a  licensee.  This  prohibition  shall  include  any arrangement  or  agreement  whereby  the  amount received in payment for furnishing space, facilities, equipment or personnel services used by  a licensee  constitutes  a  percentage of, or is otherwise dependent upon, the income or receipts of the licensee from  such  practice,  except  as otherwise  provided  by law with respect to a facility licensed pursuant to article twenty-eight of the public health law or article thirteen  of the mental hygiene law;   20.  Conduct  in  the  practice  of  medicine  which  evidences  moral unfitness to practice medicine;   21. Willfully making or filing a false report, or failing  to  file  a report  required  by law or by the department of health or the education department,  or  willfully  impeding  or  obstructing  such  filing,  or inducing another person to do so;   22.  Failing  to  make available to a patient, upon request, copies of documents in the possession or under the control of the  licensee  which have been prepared for and paid for by the patient or client;   23.  Revealing  of personally identifiable facts, data, or information obtained in a professional capacity without the  prior  consent  of  the patient, except as authorized or required by law;   24.  Practicing  or offering to practice beyond the scope permitted by law, or accepting and performing professional responsibilities which the licensee knows or has reason to know that he or she is not competent  to perform,   or   performing  without  adequate  supervision  professional services which the licensee is authorized  to  perform  only  under  the  supervision of a licensed professional, except in an emergency situation where a person's life or health is in danger;   25.  Delegating  professional  responsibilities  to  a person when the licensee delegating such responsibilities knows or has  reason  to  know that  such  person  is  not qualified, by training, by experience, or by licensure, to perform them.   25-a. With  respect  to  any  non-emergency  treatment,  procedure  or surgery  which  is  expected  to  involve  local  or general anesthesia, failing to disclose to the patient the  identities  of  all  physicians, except medical residents in certified training programs, podiatrists and dentists,  reasonably  anticipated  to  be  actively  involved  in  such treatment, procedure or surgery and to obtain  such  patient's  informed consent to said practitioners' participation;   26.   Performing  professional  services  which  have  not  been  duly authorized by the patient or his or her legal representative;   27. Advertising or soliciting for patronage that is not in the  public interest. (a) Advertising or soliciting not in the public interest shall include,  but  not be limited to, advertising or soliciting that: (i) is false, fraudulent, deceptive, misleading, sensational, or flamboyant;  (ii) represents intimidation or undue pressure;  (iii) uses testimonials;  (iv) guarantees any service;  (v) makes any claim relating to professional services or  products  or the  costs  or  price  therefor  which  cannot  be  substantiated by the licensee, who shall have the burden of proof;  (vi)  makes  claims  of  professional  superiority  which  cannot   be substantiated by the licensee, who shall have the burden of proof; or  (vii)  offers bonuses or inducements in any form other than a discount or reduction in an established fee or price for a  professional  service or product.  (b)  The  following shall be deemed appropriate means of informing the public of the availability of professional services:  (i)  informational advertising not contrary to the foregoing prohibitions; and  (ii)  the  advertising  in  a  newspaper,  periodical  or professional directory or on radio or television of fixed prices, or a  stated  range of prices, for specified routine professional services, provided that if there is an additional charge for related services which are an integral part  of  the  overall  service  being  provided  by  the  licensee, the advertisement  shall  so  state,   and   provided   further   that   the advertisement  indicates  the  period  of  time for which the advertised prices shall be in effect.  (c)(i) All licensees placing advertisements shall maintain,  or  cause to  be maintained, an exact copy of each advertisement, transcript, tape or video tape thereof as appropriate for the medium used, for  a  period of  one  year  after its last appearance. This copy shall be made avail- able for inspection upon demand of the department of health;  (ii) A licensee shall not compensate or give anything of value to rep- resentatives of the press, radio,  television  or  other  communications media  in  anticipation  of or in return for professional publicity in a news item;  (d)  No  demonstrations,  dramatizations  or   other   portrayals   of professional  practice  shall  be  permitted  in advertising on radio or television;   28. Failing to respond within thirty days  to  written  communications from the department of health and to make available any relevant records with   respect   to   an  inquiry  or  complaint  about  the  licensee's professional misconduct. The period of thirty days shall commence on the date when such communication was delivered personally to  the  licensee.  If the communication is sent from the department of health by registered or  certified  mail,  with  return  receipt  requested,  to  the address appearing in the last registration, the  period  of  thirty  days  shall commence  on  the  date of delivery to the licensee, as indicated by the return receipt;   29. Violating any term of probation or condition or limitation imposed on the licensee pursuant to section two hundred  thirty  of  the  public health law;   30.  Abandoning or neglecting a patient under and in need of immediate professional  care,  without  making  reasonable  arrangements  for  the continuation  of such care, or abandoning a professional employment by a group practice, hospital, clinic or other health care facility,  without reasonable  notice  and  under  circumstances which seriously impair the delivery of professional care to patients or clients;   31. Willfully harassing, abusing, or  intimidating  a  patient  either physically or verbally;   32.  Failing  to  maintain  a record for each patient which accurately reflects the evaluation and treatment of the patient, provided, however, that a physician who  transfers  an  original  mammogram  to  a  medical institution,  or  to a physician or health care provider of the patient, or to the patient directly, as otherwise provided by law, shall have  no obligation  under  this  section  to  maintain  the  original  or a copy thereof. Unless otherwise provided by law, all patient records  must  be retained  for  at  least  six  years. Obstetrical records and records of minor patients must be retained for at least six years,  and  until  one year after the minor patient reaches the age of eighteen years;   33.  Failing  to exercise appropriate supervision over persons who are authorized to practice only under the supervision of the licensee;   34. Guaranteeing that satisfaction or a  cure  will  result  from  the performance of professional services;   35.  Ordering  of  excessive  tests,  treatment,  or  use of treatment facilities not warranted by the condition of the patient;   36. Claiming or using any secret or special method of treatment  which the licensee refused to divulge to the department of health;   37. Failing to wear an identifying badge, which shall be conspicuously displayed   and   legible,   indicating   the  practitioner's  name  and professional title authorized pursuant to this chapter, while practicing as an employee or operator of a  hospital,  clinic,  group  practice  or multi-professional  facility,  or at a commercial establishment offering health services to the public;   38. Entering into an arrangement or agreement with a pharmacy for  the compounding   and/or   dispensing   of   coded   or   specially   marked prescriptions;   39. With respect to all  professional  practices  conducted  under  an assumed  name,  other  than  facilities  licensed  pursuant  to  article twenty-eight of the public health law or article thirteen of the  mental hygiene  law, failing to post conspicuously at the site of such practice the name and licensure  field  of  all  of  the  principal  professional licensees  engaged  in  the  practice  at  that  site  (i.e.,  principal partners, officers or principal shareholders);   40.  Failing  to  provide  access  by  qualified  persons  to  patient information  in  accordance  with  the  standards  set  forth in section eighteen of the public health law as added by chapter 497 of the laws of 1986;   41. Knowingly or willfully performing a complete or partial autopsy on a deceased person without lawful authority;   42. Failing to comply with a signed agreement to practice medicine  in New York state in an area designated by the commissioner of education as  having  a  shortage of physicians or refusing to repay medical education costs in lieu of such required service, or failing to  comply  with  any provision  of  a  written  agreement  with the state or any municipality within  which  the  licensee  has  agreed to provide medical service, or refusing to repay funds in lieu of  such  service  as  consideration  of awards  made  by  the  state  or any municipality thereof for his or her professional education in  medicine,  or  failing  to  comply  with  any agreement entered into to aid his or her medical education;   43.   Failing   to   complete   forms  or  reports  required  for  the reimbursement of a patient by a third  party.  Reasonable  fees  may  be charged   for   such  forms  or  reports,  but  prior  payment  for  the professional services to which such forms or reports relate may  not  be required as a condition for making such forms or reports available;   44.  In  the  practice  of  psychiatry,  (a) any physical contact of a sexual nature between licensee and  patient  except  the  use  of  films and/or  other  audiovisual  aids  with  individuals  or  groups  in  the development of appropriate responses to overcome sexual dysfunction  and (b) in therapy groups, activities which promote explicit physical sexual contact between group members during sessions; and   45.  In  the  practice of ophthalmology, failing to provide a patient, upon request,  with  the  patient's  prescription  including  the  name, address,   and   signature  of  the  prescriber  and  the  date  of  the prescription.   46. A violation of section  two  hundred  thirty-nine  of  the  public health law by a professional.   47.  Failure  to  use  scientifically accepted barrier precautions and infection control practices as established by the department  of  health pursuant to section two hundred thirty-a of the public health law.   48.  A  violation of section two hundred thirty-d of the public health law or the regulations of the commissioner of health enacted thereunder.   49. Except for good cause shown, failing to provide within one day any relevant records or other information requested by the  state  or  local department  of  health  with  respect  to  an inquiry into a report of a communicable disease as defined in the state sanitary code, or HIV/AIDS.   50. Performing a pelvic examination or supervising the performance  of a  pelvic  examination  in  violation  of  subdivision  seven of section twenty-five hundred four of the public health law.