NY Educ L § 6510 (2021)
2021 New York Laws EDN - Education Title 8 - The Professions Article 130* - General Provisions Sub Art. 3 - Professional Misconduct. 6510 - Proceedings in Cases of Professional Misconduct.

§ 6510. Proceedings  in  cases of professional misconduct. In cases of professional misconduct the proceedings shall be as follows:   1. Preliminary procedures.   a. Complaint. A complaint of a licensee's professional misconduct  may be made by any person to the education department.   b.  Investigation.  The  department  shall  investigate each complaint which alleges conduct constituting professional misconduct. The  results of  the  investigation  shall  be  referred  to the professional conduct officer  designated  by  the  board  of  regents  pursuant  to   section sixty-five  hundred  six  of  this article. If such officer decides that there is not substantial evidence of  professional  misconduct  or  that further proceedings are not warranted, no further action shall be taken. If  such  officer,  after consultation with a professional member of the applicable state board for the  profession,  determines  that  there  is substantial  evidence  of  professional  misconduct,  and  that  further proceedings are warranted, such proceedings shall be conducted  pursuant to  this section.   If the complaint involves a question of professional expertise, then such officer may seek,  and  if  so  shall  obtain,  the concurrence  of  at least two members of a panel of three members of the applicable board.  The department shall cause a  preliminary  review  of every  report  made  to  the department pursuant to section twenty-eight hundred three-e as added by chapter eight hundred sixty-six of the  laws of nineteen hundred eighty and sections forty-four hundred five-b of the public  health  law  and  three hundred fifteen of the insurance law, to determine  if  such  report  reasonably  appears  to   reflect   conduct warranting further investigation pursuant to this subdivision.   c.   Charges.   In  all  disciplinary  proceedings  other  than  those terminated by an administrative  warning  pursuant  to  paragraph  a  of subdivision  two  of  this  section,  the  department  shall prepare the charges. The charges shall state the alleged professional misconduct and shall state concisely the material facts but not the evidence  by  which the charges are to be proved.   d.  Records  and  reports  as  public information. In all disciplinary proceedings brought  pursuant  to  this  section  or  in  any  voluntary settlement  of  a complaint between the licensee and the department, the department shall notify the licensee in  writing  that  the  record  and reports  of such disciplinary proceeding or of such voluntary settlement shall be considered matters of public  information  unless  specifically excepted  in  this  article,  or  in any other law or applicable rule or regulation.   e. Service of charges and notice of  hearing.  In  order  to  commence disciplinary  proceedings  under  this  title,  service of a copy of the charges and notice of hearing must be completed twenty days  before  the date  of  the  hearing  if  by  personal delivery, and must be completed twenty-five days before the date of the hearing if by any other method.   f. Service of charges and of notice of hearing upon a natural  person. Personal  service  of  the charges and notice of any hearing pursuant to subdivision two or three of this section upon a natural person shall  be made by any of the following methods:  (1) by delivery within the state to the person to be served; or  (2)  by  delivery  within  the  state  to a person of suitable age and discretion at the actual place of  business,  dwelling  place  or  usual place  of abode of the person to be served and either: (i) by mailing by certified mail, return receipt requested, to the person to be served  at his  or  her last known residence, or (ii) by mailing by certified mail, return receipt requested, to the person to be served at his or her  last address  on  file  with  the  division  of  licensing  services  of  the department  in  an   envelope   bearing   the   legend   "personal   and  confidential,"  provided that, in either case: such delivery and mailing shall be effected within twenty days of each other; service pursuant  to this  subparagraph shall be complete ten days after either the delivery, or  the  mailing,  whichever is later; and proof of service shall, among other things, identify such person of suitable age  and  discretion  and state the date, time and place of such service; or  (3)  where  service  under subparagraphs one and two of this paragraph cannot be made with due diligence, a copy of the charges and the  notice of  hearing shall be served by certified mail, return receipt requested, to the person's  last  known  address  on  file  with  the  division  of licensing  services of the department or by affixing the changes and the notice of hearing to the door of either the actual  place  of  business, dwelling  place  or  usual  place  of  abode of the person to be served; provided that: service pursuant to this subparagraph shall  be  complete ten  days  after  such mailing, and proof of service shall set forth the department's efforts of due diligence.   g. Service of charges and notice of hearing outside of  the  state.  A natural  person  subject  to  the  jurisdiction of the department may be served with a copy of the charges and the notice of hearing  outside  of the state in the same manner as service is made within the state, by any person authorized to make service within the state of New York or by any person  authorized  to make service by the laws of the state, territory, possession or country in which service is made or by any duly  qualified attorney or equivalent in such jurisdiction.   2. Expedited procedures.   a. Violations. Violations involving professional misconduct of a minor or  technical nature may be resolved by expedited procedures as provided in  paragraph  b  or  c  of  this  subdivision.  For  purposes  of  this subdivision,  violations  of  a minor or technical nature shall include, but shall not be limited to, isolated instances of violations concerning professional  advertising  or  record  keeping,   and   other   isolated violations  which  do  not  directly affect or impair the public health, welfare or safety. The board of regents shall  make  recommendations  to the  legislature  on  or before June first, nineteen hundred eighty-one, for the further definition of violations of a minor or technical nature. The initial instance of any violation of a minor or technical nature may be resolved by the issuance of an  administrative  warning  pursuant  to paragraph  b  of  this  subdivision.  Subsequent  instances  of  similar violations of a minor or technical nature within a period of three years may be resolved by the procedure  set  forth  in  paragraph  c  of  this subdivision.   b.  Administrative  warning.  If a professional conduct officer, after consultation with a professional member of the state  board,  determines that  there  is substantial evidence of professional misconduct but that it is an initial violation of a minor or technical  nature  which  would not  justify  the  imposition of a more severe disciplinary penalty, the matter may be terminated by the issuance of an  administrative  warning. Such  warnings  shall  be  confidential  and  shall  not  constitute  an adjudication of guilt or be used as evidence that the licensee is guilty of the alleged misconduct. However, in the event of a further allegation of similar misconduct by the same licensee, the matter may  be  reopened and further proceedings instituted as provided in this section.   c.  Determination  of  penalty  on  uncontested minor violations. If a professional conduct officer, after  consultation  with  a  professional member of the state board, determines that there is substantial evidence of  a  violation  of  a  minor  or  technical  nature,  and  of a nature justifying a penalty as specified in this paragraph, the department  may prepare  and  serve  charges  either by personal service or by certified  mail, return receipt requested. Such charges shall include  a  statement that  unless  an  answer  is  received  within  twenty  days denying the charges,  the  matter  shall  be  referred  to  a  violations  committee consisting  of  at  least  three  members  of  the  state  board for the profession, at least one of whom shall be a public  representative,  for determination.  The violations panel shall be appointed by the executive secretary of the state board. The  licensee  shall  be  given  at  least fifteen  days  notice  of  the  time  and  place  of  the meeting of the violations committee and shall have the right to appear in person and by an attorney and to make a statement to the committee  in  mitigation  or explanation  of  the  misconduct.  The  department may appear and make a statement in support of its position. The violations committee may issue a censure and reprimand, and in addition, or  in  the  alternative,  may impose  a fine not to exceed five hundred dollars for each specification of minor, or technical misconduct. If the fine is not paid within  three months  the  matter  may be reopened and shall be subject to the hearing and regents decision procedures of this section.  The  determination  of the  panel  shall  be  final  and  shall  not  be subject to the regents decision procedures of this section. If an answer is filed  denying  the charges,  the matter shall be processed as provided in subdivision three of this section.   d. Convictions of crimes or administrative  violations.  In  cases  of professional  misconduct  based  solely  upon a violation of subdivision five  of  section  sixty-five  hundred  nine  of   this   article,   the professional  conduct  officer may prepare and serve the charges and may refer the matter directly to a regents review committee for  its  review and   report   of   its   findings,   determination  as  to  guilt,  and recommendation as to the measure of discipline to be  imposed.  In  such cases  the  notice  of  hearing shall state that the licensee may file a written answer, brief and  affidavits;  that  the  licensee  may  appear personally  before  the  regents review committee, may be represented by counsel and may present evidence or sworn testimony  on  behalf  of  the licensee,  and  the  notice may contain such other information as may be considered appropriate  by  the  department.  The  department  may  also present  evidence  or  sworn  testimony  at  the hearing. A stenographic record of the hearing shall be made. Such evidence  or  sworn  testimony offered  at the meeting of the regents review committee shall be limited to evidence and testimony relating to the nature  and  severity  of  the penalty  to  be  imposed upon the licensee. The presiding officer at the meeting of the regents review committee may, in his or  her  discretion, reasonably  limit  the  number  of  witnesses  whose  testimony  will be received and the length  of  time  any  witness  will  be  permitted  to testify.  In  lieu  of referring the matter to the board of regents, the regents  review  committee  may  refer  any  such  matter  for   further proceedings  pursuant  to  paragraph  b  or  c  of  this  subdivision or subdivision three of this section.   3. Adversary proceedings. Contested disciplinary proceedings and other disciplinary proceedings not resolved pursuant  to  subdivision  two  of this  section  shall  be tried before a hearing panel of the appropriate state board as provided in this subdivision.   a. Notice of hearing. The department shall set the time and  place  of the  hearing  and  shall  prepare  the  notice of hearing. The notice of hearing shall state (1) the time and place of the hearing, (2) that  the licensee  may file a written answer to the charges prior to the hearing, (3) that the licensee may appear personally at the hearing  and  may  be represented  by  counsel,  (4) that the licensee shall have the right to produce witnesses and evidence in his behalf, to cross-examine witnesses and examine evidence produced against him, and  to  issue  subpoenas  in  accordance  with the provisions of the civil practice law and rules, (5) that a stenographic record of the hearing will be  made,  and  (6)  such other information as may be considered appropriate by the department.   b.  Hearing  panel. The hearing shall be conducted by a panel of three or more members, at least two of whom shall be members of the applicable state board for the profession, and at least one  of  whom  shall  be  a public  representative  who is a member of the applicable state board or of the state board for another  profession  licensed  pursuant  to  this title.  The  executive  secretary  for  the applicable state board shall appoint the  panel  and  shall  designate  its  chairperson.  After  the commencement  of  a  hearing,  no  panel  member  shall  be  replaced. A determination by the administrative officer of a need to  disqualify  or remove  any  panel member will result in the disqualification or removal of the panel and cause a new panel to be appointed. In addition to  said panel members, the department shall designate an administrative officer, admitted  to practice as an attorney in the state of New York, who shall have the authority to rule on all motions, procedures  and  other  legal objections and shall draft a report for the hearing panel which shall be subject  to  the  approval  of and signature by the panel chairperson on behalf of the panel. The administrative officer shall not be entitled to a vote.   c. Conduct of hearing. The evidence in support of the charges shall be presented by an attorney for the department. The licensee shall have the rights required to be stated in the notice of hearing. The  panel  shall not  be  bound  by the rules of evidence, but its determination of guilt shall be based on a preponderance of the evidence. A hearing  which  has been  initiated  shall  not  be  discontinued  because  of  the death or incapacity to serve of one member of the hearing panel.   d. Results of hearing. The hearing panel shall render a written report which shall include (1) findings of fact, (2) a determination of  guilty or not guilty on each charge, and (3) in the event of a determination of guilty,  a recommendation of the penalty to be imposed. For the panel to make a determination of guilty, a minimum of two of the  voting  members of the panel must vote for such a determination. A copy of the report of the hearing panel shall be transmitted to the licensee.   4. Regents decision procedures.   a.  Regents review committee. The transcript and report of the hearing panel shall be reviewed at a  meeting  by  a  regents  review  committee appointed  by  the  board of regents. The regents review committee shall consist of three members, at least one of whom shall be a regent.   b. Regents review committee meetings. The review shall be based on the transcript and the report of the hearing panel. The licensee may  appear at  the  meeting,  and  the  regents  review  committee  may require the licensee to appear. The licensee may  be  represented  by  counsel.  The department  shall  notify  the  licensee  at least seven days before the meeting (1) of the time and place of the meeting, (2) of  his  right  to appear,  (3)  of  his right to be represented by counsel, (4) whether or not he is required to appear, and (5) of such other information  as  may be  considered  appropriate.  After  the  meeting,  the  regents  review committee shall transmit a written report of its review to the board  of regents.  In  cases  referred  directly  to the regents review committee pursuant to paragraph d of subdivision two of this section,  the  review shall  be  based upon the charges, the documentary evidence submitted by the department, any answer, affidavits or brief the licensee may wish to submit, and any evidence or sworn testimony presented by the licensee or the department at the hearing, pursuant to the procedures  described  by paragraph d of subdivision two of this section.    c. Regents decision and order. The board of regents (1) shall consider the  transcript,  the report of the hearing panel, and the report of the regents review committee, (2)  shall  decide  whether  the  licensee  is guilty or not guilty on each charge, (3) shall decide what penalties, if any,  to  impose  as  prescribed in section sixty-five hundred eleven of this article, and (4) shall issue an order to carry out  its  decisions. Such  decisions  shall require the affirmative vote of a majority of the members of the board of regents. If the board of regents disagrees  with the  hearing  panel's  determination  of not guilty, it shall remand the matter to the original panel for reconsideration or to a new panel for a new hearing. The panel's determination of not guilty on  reconsideration or  a  new  hearing  shall  be final. The order shall be served upon the licensee personally or by certified mail to the  licensee's  last  known address  and  such  service  shall  be  effective  as of the date of the personal service or five days  after  mailing  by  certified  mail.  The licensee  shall  deliver  to the department the license and registration certificate which has been revoked, annulled, suspended, or  surrendered within  five  days after the effective date of the service of the order. If the license or registration certificate is  lost,  misplaced  or  its whereabouts is otherwise unknown, the licensee shall submit an affidavit to  that  effect,  and  shall deliver such license or certificate to the department when located.   5. Court review procedures. The decisions of the board of regents  may be  reviewed  pursuant to the proceedings under article seventy-eight of the civil practice law and rules. Such proceedings shall  be  returnable before the appellate division of the third judicial department, and such decisions  shall  not  be  stayed or enjoined except upon application to such appellate division after  notice  to  the  department  and  to  the attorney   general  and  upon  a  showing  that  the  petitioner  has  a substantial likelihood of success.   5-a. At any time, if the professional conduct officer or  his  or  her designee   designated   to   investigate  a  complaint  of  professional misconduct of a licensed health care provider or licensed mental  health care  provider  determines that there is a reasonable belief that an act that  constitutes  a  sex  offense  identified  in  paragraph   (h)   of subdivision  three of section 130.05 of the penal law has been committed by the licensee against a client or patient during a treatment  session, consultation,   interview,  or  examination,  the  professional  conduct officer or the  office  of  professional  discipline  shall  notify  the appropriate law enforcement official or authority.   6.  The  provisions  of  subdivisions one through four of this section shall  not  be  applicable  to  proceedings  in  cases  of  professional misconduct  involving  the  medical  profession,  except  as provided in paragraph m of subdivision ten of section  two  hundred  thirty  of  the public health law.   7.  Notwithstanding any other provision of law, persons who assist the department as consultants or expert witnesses in  the  investigation  or prosecution  of  alleged  professional  misconduct,  licensure  matters, restoration  proceedings,  or  criminal  prosecutions  for  unauthorized practice,  shall  not  be  liable  for  damages  in  any civil action or proceeding as a result of such assistance, except upon proof  of  actual malice.  The  attorney  general  shall  defend  such persons in any such action or proceeding, in accordance with section seventeen of the public officers law.   8. The files of  the  department  relating  to  the  investigation  of possible  instances of professional misconduct, or the unlawful practice of any profession licensed by the board of regents, or the unlawful  use of  a  professional  title  or  the  moral fitness of an applicant for a  professional license or permit, shall be confidential and not subject to disclosure at the request of any person, except  upon  the  order  of  a court  in  a  pending  action  or  proceeding.  The  provisions  of this subdivision  shall  not  apply  to documents introduced in evidence at a hearing held  pursuant  to  this  chapter  and  shall  not  prevent  the department from sharing information concerning investigations with other duly  authorized public agencies responsible for professional regulation or criminal prosecution.   9. A disciplinary proceeding under subdivision three or four  of  this section  shall  be treated in the same manner as an action or proceeding in supreme court for the purpose of  any  claim  by  counsel  of  actual engagement.