2023 New York Laws › PBH - Public Health › Article 27-DD - State Advisory Panel on Hiv/hbv Infected Health Care Workers › 2761 - Function, Powers and Duties.

§  2761.  Function,  powers  and  duties.    1. The health care worker
HIV/HBV advisory  panel  shall  only  evaluate  and  advise  an  HIV/HBV
infected  health care worker who voluntarily seeks the panel's review of
the risk of HIV/HBV transmission to  others  through  his/her  workplace
practice.  Prior to the panel's evaluation of the worker, the panel must
fully advise the worker of the  panel's  authority  to  investigate,  to
recommend  practice  restrictions or modifications, to advise facilities
of such restrictions and  to  refer  cases  to  professional  licensing,
registration  and  certification  boards.  If  the health care worker is
affiliated with or employed at a facility licensed  by  the  department,
the  panel  may  evaluate and advise the worker only after such facility
has completed its review of the scope of practice of  the  worker.  This
institutional  review  may  be conducted through the facility's existing
quality assurance program as required under section twenty-eight hundred
five-j of this chapter, and need not require the creation of a  separate
facility HIV/HBV panel. Notwithstanding any other provision of law, rule
or  regulation,  the  panel may request and shall be entitled to receive
patient records and other documents or information reasonably  necessary
for  and relevant to the panel's deliberations and the implementation of
this  article  including  information  and  reports  available  to   the
department  under  section  twenty-eight hundred five-m of this chapter,
provided that the panel may only request records with patient  names  if
essential  to  the  panel's  complete  review  of  the case and provided
further that employees of the department, other than  the  panel,  shall
redact  patient  names  before  panel  review  of such records. Any such
information and reports provided  to  the  panel  that  are  subject  to
section  two  thousand eight hundred five-m of this chapter shall remain
subject to the limitations on disclosure provided by such  section.  The
panel  may seek the advice of professionals with relevant expertise. The
panel shall give the health care worker an opportunity to meet with  the
panel.  The  health  care  worker may be accompanied by a union or other
representative at such meeting. Only when evidence  indicates  that  the
health  care  worker's  practice  poses  a  significant  risk of harm to
patients, the panel shall  make  appropriate  recommendations  that  are
least  restrictive  with  respect  to  the health care worker's practice
including, but not limited to, training or monitoring, or, if necessary,
reassignment or practice restrictions.
2. The panel shall evaluate an HIV/HBV  infected  health  care  worker
pursuant to comprehensive medical criteria, including:
(a)   physical   or  mental  condition  that  interferes  with  or  is
significantly likely to interfere with the worker's ability  to  perform
assigned tasks or regular duties;
(b)   lack  of  compliance  with  established  guidelines  to  prevent
transmission of disease and/or documentation  or  evidence  of  previous
transmission of bloodborne pathogens;
(c)  the  appropriateness  of  techniques as related to performance of
procedures; and
(d) any health condition that would pose a significant risk to others.
3. When the panel recommends training, monitoring,  reassignment,  any
similar  action,  or practice restrictions, the health care worker shall
provide  written  assurance  to  the  panel  that  he/she  has  informed
facilities  licensed by the department where the worker provides patient
care of the panel's recommendations and shall  identify  the  person  or
persons  at  the facilities so informed. If the health care worker fails
to inform facilities licensed by the department  where  he/she  provides
patient  care  of the panel's recommendations, the panel shall so notify
such facilities. If the health care worker  fails  to  comply  with  the
panel's  recommendations or compliance cannot be determined by the panel

after reasonable effort, the panel shall  disclose  the  nature  of  its
recommendations   to   the   professional   licensing,  registration  or
certification boards relevant to the health care worker. The  panel  may
periodically  monitor  and  reevaluate  the  worker,  with  the worker's
consent, at a frequency and through a  mechanism  to  be  determined  by
agreement between the worker and the panel.
4.  The information received by the panel, the record of deliberations
of the panel, and  the  decisions  of  the  panel  are  not  disclosable
pursuant  to  article six of the public officers law. If the health care
worker fails  to  comply  with  the  recommendations  of  the  panel  or
compliance  cannot  be  determined by the panel after reasonable effort,
information  held  by  the  panel,   the   panel's   deliberations   and
recommendations  may  be  disclosed  to  and  utilized  by the office of
professional medical conduct, the office of professional discipline  and
appropriate  disciplinary  bodies.  The  meetings  of  the panel are not
subject to article seven of the public officers law. The members of  the
panel  are  bound  by article six-A of the public officers law (personal
privacy protection law).
5. A health care worker's petition to the panel shall not  prevent  or
preclude the worker from seeking relief in any other forum at any time.
6.  The  commissioner  may  promulgate  regulations  implementing this
article.