2023 New York Laws › PBH - Public Health › Article 2 - The Department of Health › Title 2-A - Professional Medical Conduct › 230 - State Board for Professional Medical Conduct; Proceedings.

§ 230. State board for professional medical conduct; proceedings. 1. A
state  board  for  professional medical conduct is hereby created in the
department in matters of professional misconduct as defined in  sections
sixty-five  hundred  thirty  and  sixty-five  hundred  thirty-one of the
education  law.  Its  physician  members  shall  be  appointed  by   the
commissioner  at  least  eighty-five percent of whom shall be from among
nominations submitted by the medical society of the state of  New  York,
the  New  York  state  osteopathic  society,  the  New  York  academy of
medicine,  county  medical  societies,  statewide  specialty   societies
recognized  by  the  council  of  medical  specialty  societies, and the
hospital association of  New  York  state.  Its  lay  members  shall  be
appointed  by  the  commissioner  with the approval of the governor. The
board of regents shall also appoint twenty percent of the members of the
board. Not less than sixty-seven percent of the members appointed by the
board of regents shall be physicians. Not less than eighty-five  percent
of the physician members appointed by the board of regents shall be from
among  nominations  submitted by the medical society of the state of New
York, the New York state osteopathic society, the New  York  academy  of
medicine,   county   medical   societies,  statewide  medical  societies
recognized by the  council  of  medical  specialty  societies,  and  the
hospital  association  of  New  York  state.  Any  failure  to  meet the
percentage thresholds stated in this subdivision shall  not  be  grounds
for  invalidating  any  action  by  or  on  authority  of  the board for
professional medical conduct or a committee or  a  member  thereof.  The
board  for  professional medical conduct shall consist of not fewer than
eighteen physicians licensed in the state for at least five  years,  two
of whom shall be doctors of osteopathy, not fewer than two of whom shall
be  physicians  who  dedicate a significant portion of their practice to
the use of non-conventional medical treatments who may be  nominated  by
New York state medical associations dedicated to the advancement of such
treatments,  at  least  one  of  whom shall have expertise in palliative
care, and not fewer than seven lay members. An executive secretary shall
be appointed by the chairperson and shall be a licensed physician.  Such
executive  secretary  shall  not  be  a  member of the board, shall hold
office at the pleasure of, and shall have the powers and duties assigned
and the annual salary fixed by, the chairperson. The  chairperson  shall
also  assign  such  secretaries  or  other  persons  to the board as are
necessary.
2. Members of such board shall be appointed by the commissioner or the
board of regents for three year terms except that  the  terms  of  those
first appointed shall be arranged so that as nearly as possible an equal
number shall terminate annually. A vacancy occurring during a term shall
be  filled by an appointment by the commissioner or the board of regents
for the unexpired term.
3.  Each  member  of  the  board  shall  receive  a   certificate   of
appointment,   shall   before  beginning  his  term  of  office  file  a
constitutional oath of office with the secretary of state, shall receive
up to one hundred fifty dollars as prescribed by  the  commissioner  for
each day devoted to board work not to exceed ten thousand dollars in any
one year, and shall be reimbursed for his necessary expenses. Any member
may be removed from the board at the pleasure of the commissioner.
4. The governor shall annually designate from the members of the board
a  chairperson  who shall be a physician and vice-chairperson. The board
shall meet upon call of the chairperson, and may adopt bylaws consistent
with this section. A quorum for the transaction of business by the board
shall be a majority of members.
5. From among the members of the  board  two  or  more  committees  on
professional conduct shall be appointed by the board chairperson.
6.  Any  committee  on  professional conduct appointed pursuant to the
provisions of this section shall consist of two physicians and  one  lay
member.
7.  (a)  The  board,  by its committees on professional conduct, shall
conduct disciplinary proceedings as prescribed in this section and shall
assist in other  professional  conduct  matters  as  prescribed  by  the
chairperson.  In  this section the term "licensee" shall mean physician,
including a physician practicing  under  a  limited  permit,  a  medical
resident,  physician's assistant and specialist's assistant. A committee
on professional conduct, on notice to the licensee and  after  affording
the  licensee,  the  office  of  professional medical conduct, and their
attorneys an opportunity to be heard, shall have the authority to direct
a licensee to submit to a medical or psychiatric  examination  when  the
committee has reason to believe the licensee may be impaired by alcohol,
drugs, physical disability or mental disability. The committee, with the
advice  of  the licensee and the office of professional medical conduct,
shall designate the physician who  will  conduct  the  examination.  The
results  of the examination shall be provided by the examining physician
to the committee, the licensee, and the office of  professional  medical
conduct.  The  licensee  may  also  obtain  a  physician  to  conduct an
examination the results of which shall be provided to the committee  and
the office of professional medical conduct.
(b)  A  committee on professional conduct may sit as an administrative
tribunal for the purpose of issuing an order authorizing the  office  of
professional   medical  conduct  to  obtain  medical  records  or  other
protected health information pertaining to the  licensee's  physical  or
mental  condition  when  the  committee  has  reason to believe that the
licensee may be impaired  by  alcohol,  drugs,  physical  disability  or
mental disability and that the records or information may be relevant to
the  alleged  impairment  or  that  information regarding the licensee's
medical condition may be relevant to an  inquiry  into  a  report  of  a
communicable disease, as defined by the state sanitary code or HIV/AIDS.
No such order shall be issued except on notice to the licensee and after
affording the licensee and the office of professional medical conduct an
opportunity to be heard.
(c) A committee on professional conduct, on notice to the licensee and
after  affording  the  licensee  and  the office of professional medical
conduct an opportunity to be heard, shall have the authority to direct a
licensee to  submit  to  a  clinical  competency  examination  when  the
committee  has  reason  to  believe that the licensee has practiced with
incompetence, generally in his or her medical practice or in a  specific
area  of  his or her medical practice. The committee, with the advice of
the licensee and the  office  of  professional  medical  conduct,  shall
designate the facility or institution to conduct the clinical competency
examination. The results of the clinical competency examination shall be
provided  by  the facility or institution to the committee, the licensee
and the office of professional medical conduct. The  licensee  may  also
obtain  an  accredited  facility  or  institution  to conduct a clinical
competency examination, the results of which shall be  provided  to  the
committee and the office of professional medical conduct.
8.  Notwithstanding  any  other  provision  of  law,  no  member  of a
committee on professional conduct nor an employee of the board shall  be
liable  in  damages to any person for any action taken or recommendation
made by him within the scope  of  his  function  as  a  member  of  such
committee  or  employee  provided  that  (a) such member or employee has
taken action or made recommendations within the scope  of  his  function
and  without  malice,  and (b) in the reasonable belief after reasonable

investigation that the act or recommendation was warranted,  based  upon
the facts disclosed.
9.   Notwithstanding   any   other  provisions  of  law,  neither  the
proceedings nor the records of any such committee shall  be  subject  to
disclosure  under article thirty-one of the civil practice law and rules
except as hereinafter provided. No person in attendance at a meeting  of
any  such  committee  shall be required to testify as to what transpired
thereat.  The prohibition relating to discovery of testimony  shall  not
apply  to  the  statements  made  by  any person in attendance at such a
meeting who is a party to an action or proceeding the subject matter  of
which was reviewed at such meeting.
9-a. At any time, if the board for professional medical conduct or the
office  of  professional  medical  conduct  determines  that  there is a
reasonable belief that an act or omission that constitutes a crime under
the law of the state of New York, any other state, or the United  States
has  been  committed by the licensee, the board for professional medical
conduct or office of  professional  medical  conduct  shall  notify  the
appropriate law enforcement official or authority.
9-b. Neither the board for professional medical conduct nor the office
of  professional medical conduct shall charge a licensee with misconduct
as defined in sections sixty-five hundred thirty and sixty-five  hundred
thirty-one  of the education law, or cause a report made to the director
of such office to be investigated beyond a  preliminary  review  as  set
forth  in clause (A) of subparagraph (i) of paragraph (a) of subdivision
ten of this section, where such report is determined to be based  solely
upon  the  recommendation  or  provision  of  a  treatment modality to a
particular patient by such licensee that is not universally accepted  by
the medical profession, including but not limited to, varying modalities
used  in  the  treatment  of Lyme disease and other tick-borne diseases.
When a licensee, acting in accordance with paragraph  e  of  subdivision
four  of  section  sixty-five hundred twenty-seven of the education law,
recommends or provides a  treatment  modality  that  effectively  treats
human  disease,  pain, injury, deformity or physical condition for which
the licensee is treating a patient, the recommendation or  provision  of
that  modality  to a particular patient shall not, by itself, constitute
professional misconduct. The licensee shall otherwise abide by all other
applicable professional requirements.
9-c. (a) Neither the board for professional medical  conduct  nor  the
office  of  professional medical conduct shall charge a licensee, acting
within their scope of practice, with misconduct as defined  in  sections
sixty-five  hundred  thirty  and  sixty-five  hundred  thirty-one of the
education law, or cause a report made to the director of such office  to
be  investigated  beyond a preliminary review as set forth in clause (A)
of subparagraph (i) of paragraph (a) of subdivision ten of this section,
where such report is determined to be based solely upon the performance,
recommendation, or provision of  any  reproductive  health  services  as
defined in section sixty-five hundred thirty-one-b of the education law,
or gender-affirming care, as defined in paragraph (c) of subdivision one
of  section  sixty-five hundred thirty-one-b of the education law, for a
particular patient by such licensee where  such  patient  resides  in  a
state  wherein  the  performance,  recommendation  or  provision of such
reproductive health services or gender-affirming care is illegal.
(b) When a licensee, acting within their scope  of  practice,  and  in
accordance  with  paragraph  e of subdivision four of section sixty-five
hundred twenty-seven of  the  education  law,  performs,  recommends  or
provides any reproductive health services or gender-affirming care for a
patient  who resides in a state wherein the performance, recommendation,
or   provision   of   any   such   reproductive   health   services   or

gender-affirming  care  is illegal, such performance, recommendation, or
provision of such reproductive health services or gender-affirming  care
for   such  patient,  shall  not,  by  itself,  constitute  professional
misconduct.  The  licensee shall otherwise abide by all other applicable
professional requirements.
10. Professional misconduct proceedings shall consist of:
* (a) Investigation.   (i) (A)  The  board  for  professional  medical
conduct,  by the director of the office of professional medical conduct,
may investigate on its own any suspected  professional  misconduct,  and
shall  investigate  each complaint received regardless of the source. By
the conclusion of a preliminary review, including an  internal  clinical
review,  the  director  shall determine if a report is based solely upon
the recommendation or provision of a treatment modality  by  a  licensee
that  is  not  universally accepted by the medical profession, including
but not limited to varying modalities used  in  the  treatment  of  Lyme
disease  or  other  tick-borne  diseases.  Upon  a  determination by the
director that a report is based solely upon the provision of a treatment
modality that is not universally accepted, no further  review  shall  be
conducted and no charges shall be brought. Nothing in this section shall
preclude  the  director  from making such a determination earlier in, or
subsequent to, a preliminary review. (B) The director of the  office  of
professional  medical  conduct 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,  sections  twenty-eight  hundred  five-l  and
forty-four  hundred  five-b  of  this chapter, and section three hundred
fifteen of the insurance law, to determine  if  such  report  reasonably
appears  to  reflect  physician conduct warranting further investigation
pursuant to this subparagraph.
(i-a) The director shall, in addition to the determination required by
clause (A) of subparagraph (i) of this paragraph, determine if a  report
is  based solely upon conduct which is otherwise permissible pursuant to
section  sixty-five  hundred  thirty-one-b  of  the  education  law  and
subdivision  nine-c  of  this  section,  and upon a determination by the
director that a report is based solely upon such permissible conduct, no
further review shall be conducted  and  no  charges  shall  be  brought.
Nothing  in  this section shall preclude the director from making such a
determination earlier in, or subsequent to, a preliminary review.
(ii) If the  investigation  of  cases  referred  to  an  investigation
committee  involves  issues of clinical practice, medical experts, shall
be consulted. Experts may be made available by the state medical society
of the state of New York, by  county  medical  societies  and  specialty
societies,  and  by New York state medical associations dedicated to the
advancement of  non-conventional  medical  treatments.  Any  information
obtained  by  medical  experts  in consultations, including the names of
licensees or patients, shall be confidential and shall not be  disclosed
except as otherwise authorized or required by law.
(iii)  In  the  investigation  of  cases  referred to an investigation
committee, the licensee being investigated shall have an opportunity  to
be interviewed by the office of professional medical conduct in order to
provide  an  explanation of the issues under investigation. Providing an
opportunity for such an interview shall be a condition precedent to  the
convening  of  an  investigation committee on professional misconduct of
the board for professional medical conduct.
(A) At least twenty days before the interview, except as otherwise set
forth herein, the licensee under investigation shall  be  given  written
notice  of:  (1) a description of the conduct that is the subject of the
investigation; (2) the issues relating to the  conduct  that  have  been

identified  at the time of the notice; (3) the time frame of the conduct
under investigation; (4) the identity of each patient whose contact with
or care by the licensee is believed to be relevant to the investigation;
and (5) the fact that the licensee may be represented by counsel and may
be accompanied by a stenographer to transcribe the proceeding. All costs
of  transcription  shall  be  paid  by  the licensee and a copy shall be
provided to the department by the licensee within  thirty  days  of  the
interview.  The  notice  required by this subparagraph may be given less
than twenty days before an interview in any case  where  the  office  of
professional medical conduct anticipates that the commissioner will take
summary  action  under subdivision twelve of this section, provided that
the notice is given within a reasonable amount  of  time  prior  to  the
interview and advises of the possible summary action.
(B)  Within  thirty days following the interview or, in a case where a
stenographer was present at the interview, within fifteen days after the
office of professional medical conduct receives the  transcript  of  the
interview,  whichever  is  later,  the licensee shall be provided with a
copy of the report of the interviewer. In addition, the  licensee  shall
promptly  be given written notice of issues identified subsequent to the
interview. The licensee may submit written comments or expert opinion or
medical or scientific literature that is directly relevant to the issues
that have been identified by the office of professional medical  conduct
to the office of professional medical conduct at any time.
(C)  If  the director determines that the matter shall be submitted to
an investigation committee, an investigation committee shall be convened
within ninety days of any interview of the licensee. The director  shall
present   the   investigation   committee  with  relevant  documentation
including, but not limited to: (1) a copy of the original complaint; (2)
the report of the interviewer and the stenographic  record  if  one  was
taken; (3) the report of any medical or scientific expert; (4) copies of
reports   of   any  patient  record  reviews;  and  (5)  the  licensee's
submissions.
(D) If the director determines to close an investigation following  an
interview without presentation to an investigation committee, the office
of professional medical conduct shall notify the licensee in writing.
(iv)  If  the  director of the office of professional medical conduct,
after obtaining the  concurrence  of  a  majority  of  an  investigation
committee,   and   after  consultation  with  the  executive  secretary,
determines that a  hearing  is  warranted  the  director  shall,  within
fifteen  days  thereafter, direct counsel to prepare the charges. If the
investigation committee is unanimous in its concurrence that  a  hearing
is  warranted,  the  charges shall be made public under paragraph (d) of
this subdivision. If the investigation committee is not unanimous in its
concurrence that a hearing is warranted, the members of  such  committee
shall  vote  on whether the charges should be made public, and if all of
the committee members vote in favor of publication, the charges shall be
made public under paragraph (d) of this  subdivision.  If  the  director
determines  after consultation with an investigation committee that: (A)
evidence exists of a single incident of negligence  or  incompetence,  a
pattern  of inappropriate prescribing or medical practice, or impairment
by drugs, alcohol, physical or mental disability; (B)  a  recommendation
was made by a county medical society or the medical society of the state
of  New York that warrants further review; or (C) the facts underlying a
verdict in a medical malpractice  action  warrant  further  review,  the
director,  in addition to the authority set forth in this section, shall
be authorized to conduct a comprehensive review of  patient  records  of
the  licensee  and such office records of the licensee as are related to
said determination. The licensee shall cooperate with the  investigation

and  willful  failure  to cooperate in a substantial or material respect
may result in an enforcement proceeding pursuant to subparagraph (ii) of
paragraph (o) of this subdivision. If there is a question of alcoholism,
alcohol  abuse, drug abuse or mental illness, the director may refer the
matter to a committee, as referred to in subparagraph (ii) of  paragraph
(c) of subdivision eleven of this section.
(v)  The  files of the office of professional medical conduct relating
to the investigation of possible instances  of  professional  misconduct
shall  be  confidential  and not subject to disclosure at the request of
any person, except as provided by law in a pending  disciplinary  action
or  proceeding.  The  provisions of this paragraph shall not prevent the
office from sharing information  concerning  investigations  within  the
department  and, pursuant to subpoena, with other duly authorized public
agencies   responsible   for   professional   regulation   or   criminal
prosecution.  Nothing  in  this  subparagraph shall affect the duties of
notification set forth in subdivision nine-a of this section or  prevent
the   publication   of   charges   or   of  the  findings,  conclusions,
determinations, or order of a hearing committee pursuant  to  paragraphs
(d)  or  (g)  of  this  subdivision.  In  addition, the commissioner may
disclose the information when, in  his  or  her  professional  judgment,
disclosure  of  such information would avert or minimize a public health
threat. Any such disclosure shall  not  affect  the  confidentiality  of
other  information  in  the  files of the office of professional medical
conduct related to the investigation.
(vi) The office of professional medical  conduct,  acting  under  this
section,  may have access to the criminal history record of any licensee
governed by the provisions of this section maintained by the division of
criminal justice services pursuant to subdivision six of  section  eight
hundred thirty-seven of the executive law.
(vii)  The  director of the office of professional medical conduct, in
consultation with the patient safety center, shall cause a review  on  a
continuous   basis   of   medical   malpractice  claim  and  disposition
information reported to the commissioner  under  section  three  hundred
fifteen  of  the insurance law, for the purpose of identifying potential
misconduct. The office shall  commence  a  misconduct  investigation  if
potential  misconduct  is  identified  as a result of such review, which
shall be based on criteria such as  disposition  frequency,  disposition
type  including  judgment  and  settlement,  disposition  award  amount,
geographic  region,  specialty,  or  other  factors  as  appropriate  in
identifying potential misconduct.
* NB Effective until July 1, 2028
* (a)  Investigation. The board for professional medical conduct, by a
committee on professional  conduct,  may  investigate  on  its  own  any
suspected  professional misconduct, and shall investigate each complaint
received regardless of the source.  The  results  of  the  investigation
shall  be referred to the director of the office of professional medical
conduct. If the director of the office of professional medical  conduct,
after   consultation  with  a  professional  member  of  the  board  for
professional medical conduct, determines that a hearing is warranted  he
shall  direct  counsel  to  prepare  the  charges  within  fifteen  days
thereafter. If it is determined  by  the  director  that  the  complaint
involves  a  question  of  professional expertise then such director may
seek, and if so shall obtain, the concurrence of at least two members of
a panel of three members of the state  board  for  professional  medical
conduct.
* NB Effective July 1, 2028
(b)  Charges.  The  charges  shall  state the substance of the alleged
professional misconduct  and  shall  state  clearly  and  concisely  the

material  facts  but  not  the  evidence  by which the charges are to be
proved.
(c)  Notice  of hearing. The board shall set the time and place of the
hearing. The notice of hearing shall state (1) the date, time and  place
of  the  hearing,  (2)  that the licensee shall file a written answer to
each of the charges and allegations in the statement of charges no later
than ten days prior to the hearing, that any charge and  allegation  not
so  answered  shall be deemed admitted and that the licensee may wish to
seek the advice of counsel prior to filing such  answer,  (3)  that  the
licensee  shall  appear personally at the hearing and may be represented
by counsel who shall be an attorney admitted to  practice  in  New  York
state,  (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  have subpoenas issued in his
behalf to require the production of witnesses and evidence in manner and
form as prescribed by the civil practice law and rules or  either  party
may  issue  such  subpoenas in their own behalf, (5) that a stenographic
record of the hearing will be made, and (6) such  other  information  as
may be considered appropriate by the committee.
(d)  Service  of  charges  and of notice of hearing. (i) A copy of the
charges and the notice of the hearing shall be served  on  the  licensee
personally  by  the  board  at  least thirty days before the hearing. If
personal service cannot be made after due diligence  and  such  fact  is
certified  under  oath,  a copy of the charges and the notice of hearing
shall be served by registered or certified mail to the  licensee's  last
known address by the board at least fifteen days before the hearing.
(ii)  The  charges  shall be made public, consistent with subparagraph
(iv) of paragraph (a) of this subdivision, no earlier than five business
days after they are served, and the charges shall be  accompanied  by  a
statement  advising  the  licensee  that  such  publication  will occur;
provided, however, that charges may  be  made  public  immediately  upon
issuance of the commissioner's order in the case of summary action taken
pursuant to subdivision twelve of this section and no prior notification
of such publication need be made to the licensee.
(iii)  If  a hearing on the charges has not yet been conducted or if a
hearing has been conducted but  the  committee  has  not  yet  issued  a
determination,  the  publication  of  charges  by  the  department shall
include a statement advising that the charges are only allegations which
may be contested by the licensee in an  administrative  hearing,  except
that  no  such  statement  need  be  included  if  the licensee fails or
affirmatively declines to contest the charges. In the event any  or  all
such  charges  are dismissed, such dismissal shall be made public within
two business days.
(d-1) Disclosure of exculpatory evidence. After service of the charges
upon the licensee,  counsel  for  the  office  of  professional  medical
conduct shall, as soon as practicable and on a continuing basis, provide
the  licensee with any information or documentation in the possession of
the office of professional medical conduct  which  tends  to  prove  the
licensee's innocence.
(e)  Committee  hearing. The hearing shall be conducted by a committee
on professional conduct. The members of the hearing committee  shall  be
appointed  by  the  chairperson  of  the  board  who shall designate the
committee chairperson.  In  addition  to  said  committee  members,  the
commissioner  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, including motions to compel disclosure
of  information or material claimed to be protected because of privilege
or confidentiality, procedures and  other  legal  objections  and  shall

draft  the  conclusions  of  the hearing committee pursuant to paragraph
(g). The administrative officer shall have  the  authority  to  rule  on
objections  to questions posed by either party or the committee members.
The administrative officer shall not be entitled to vote.
(f)  Conduct  of  hearing. All hearings must be commenced within sixty
days of the service of charges except that an adjournment of the initial
hearing date may be granted by the hearing  committee  upon  request  by
either  party  upon good cause shown. No adjournment shall exceed thirty
days. The evidence in support of the charges shall be  presented  by  an
attorney.  The  licensee  shall have the rights required to be stated in
the notice of hearing (subparagraph (c)  of  this  subdivision)  and  in
section  four hundred one of the state administrative procedure act. The
committee shall  not  be  bound  by  the  rules  of  evidence,  but  its
conclusion  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 committee. In the
event of a member's death or incapacity to serve  on  the  committee,  a
member  shall  be appointed immediately by the chairperson of the board.
The member shall  affirm  in  writing  that  he  or  she  has  read  and
considered  evidence  and transcripts of the prior proceedings. The last
hearing day must be held within one hundred twenty  days  of  the  first
hearing  day.  Either  party, for good cause shown, may request that the
committee extend the last hearing day beyond one hundred twenty days. An
extension requested by the licensee and granted by the committee may not
be used as the grounds for a proceeding brought under paragraph  (j)  of
this subdivision.
(g) Results of hearing. The committee shall make (1) findings of fact,
(2) conclusions concerning the charges sustained or dismissed, and (3) a
determination regarding charges sustained or dismissed, and in the event
any  of the charges have been sustained, of the penalty to be imposed or
appropriate action to be taken and the reasons  for  the  determination.
For  the  committee  to  make  a  conclusion  sustaining  a  charge,  or
determining a penalty or the appropriate action to be taken, two members
of the committee must vote for such a conclusion or  determination.  The
committee   shall  issue  an  order  based  on  its  determination.  The
committee's findings, conclusions, determinations and order shall become
public upon issuance. However, if the time to request a  review  of  the
committee's determination has not yet expired, or if the review has been
requested  but  no  determination  as  a  result  of the review has been
issued, such publication shall include a  statement  advising  that  the
licensee  or  the  department  may  request  a review of the committee's
determination. No such statement is required if (a) the time to  request
such  review has expired without the filing of such request by either of
the parties, or (b) the licensee and the department  both  affirmatively
decline  to  request  review of the committee's determination or fail to
perfect such review. In the event any or all such charges are dismissed,
such dismissal shall be made public within two business days.
(h)  Disposition  of   results.   (i)   The   findings,   conclusions,
determination  and  the  reasons  for the determination of the committee
shall be served upon the licensee, the department,  and  any  hospitals,
primary practice settings or health care plans required to be identified
in  publicly disseminated physician data pursuant to paragraph (j), (n),
or (q) of subdivision one of section twenty-nine  hundred  ninety-five-a
of  this  chapter, within sixty days of the last day of hearing. Service
shall be either by certified mail upon the licensee  at  the  licensee's
last  known  address and such service shall be effective upon receipt or
seven days after mailing by certified mail whichever is  earlier  or  by
personal  service  and such service shall be effective upon receipt. The

licensee shall deliver to the board the license which has been  revoked,
annulled,  suspended  or  surrendered,  together  with  the registration
certificate, within five days after receipt 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 board when located.
The director of the office shall promptly transmit a copy of  the  order
to  the  division  of  professional  licensing  services  of  the  state
education department and to each hospital  at  which  the  licensee  has
privileges.
(ii)  When  a  license  has been: (A) revoked or annulled without stay
pursuant to subdivision four or five of section two hundred thirty-a  of
this  title;  (B)  surrendered by a licensee; (C) suspended without stay
for more than one hundred eighty days; or (D) restricted to prohibit the
practice of medicine or to preclude the delivery of  patient  care,  the
licensee  whose  license  has  been  so  revoked,  surrendered, annulled
without stay, suspended without stay for more than  one  hundred  eighty
days,  or restricted shall, within fifteen days of the effective date of
the order:
(1) notify his or her patients, of the cessation or limitation of  the
licensee's  medical  practice;  the  names of other physicians or health
care practitioners who have agreed  to  assume  responsibility  for  the
patient's  care;  that  the  patient  should  contact one of those named
physicians or health care practitioners, or another physician or  health
care  practitioner of the patient's choice, to determine the health care
plans, as  defined  in  sections  four  thousand  nine  hundred  of  the
insurance  law  and  forty-nine  hundred  of  this chapter, in which the
physician or health care practitioner participates and the  polices  and
procedures of such physician or other health care practitioner; that the
patient should notify the licensee of the name of the physician or other
health care practitioner to whom the patient's medical records should be
transferred;  and  that the licensee will retain, and remain responsible
for the maintenance of the patient's medical records until  the  patient
provides  notice  that  the records shall be transferred directly to the
patient, consistent  with  the  provisions  of  sections  seventeen  and
eighteen  of  this  chapter, or to another practitioner of the patient's
choice. The licensee shall also notify each health care plan with  which
the licensee contracts or is employed, and each hospital where he or she
has  privileges  in  writing  of  the  cessation  or  limitation  of the
licensee's medical practice. Within forty-five  days  of  the  effective
date of the order, the licensee shall provide the office of professional
medical  conduct with proof, in a form acceptable to the director of the
office of professional medical conduct, that all patients and  hospitals
have  been  notified  of  the  cessation or limitation of the licensee's
medical practice.
(2) make arrangements for the transfer and maintenance of the  medical
records  of  his  or  her  former  patients.  Records  shall  be  either
transferred to  the  licensee's  former  patients  consistent  with  the
provisions  of  sections  seventeen  and  eighteen of this chapter or to
another physician or health care practitioner as provided in clause  (1)
of this subparagraph who shall expressly assume responsibility for their
care  and  maintenance  and  for  providing  access  to such records, as
provided in subdivisions twenty-two and thirty-two of section sixty-five
hundred thirty of the education law, the rules of the board  of  regents
or  the  regulations  of  the  commissioner  of  education  and sections
seventeen and eighteen of this chapter. When records are not transferred
to the licensee's former patients or to another physician or health care
practitioner, the licensee whose license  has  been  revoked,  annulled,

surrendered,  suspended  or  restricted shall remain responsible for the
care and maintenance of  the  medical  records  of  his  or  her  former
patients  and  shall  be  subject  to additional proceedings pursuant to
subdivisions  twenty-two,  thirty-two  and  forty  of section sixty-five
hundred thirty of the education law in the event that the licensee fails
to maintain those medical records or fails to make them available  to  a
former patient.
(3)  notify  the  office  of professional medical conduct of the name,
address, and telephone number of any  physician  or  other  health  care
practitioner  who  has  agreed  to accept responsibility for storing and
maintaining these medical records.
(4) in the event that the licensee whose  license  has  been  revoked,
annulled, surrendered or restricted to prohibit the practice of medicine
or  to  preclude  the  delivery  of  patient  care  holds a federal Drug
Enforcement Agency (DEA) certificate, advise the DEA in writing  of  the
licensure   action,  surrender  his  or  her  DEA  controlled  substance
privileges to the DEA, and surrender any unused DEA #222 U.S.   Official
Order Forms, Schedules 1 and 2 to the DEA.
(5)   for   licensees   whose  license  has  been  revoked,  annulled,
surrendered or restricted to prohibit the practice  of  medicine  or  to
preclude  the delivery of patient care, return any unused New York state
official prescription forms to the bureau of  narcotics  enforcement  of
the  department.  The  licensee  shall cause all other prescription pads
bearing the licensee's name to be destroyed. If  no  other  licensee  is
providing  services at the licensee's practice location, all medications
shall be properly disposed.
(6)  for  licensees  whose  license  to  practice  has  been  revoked,
annulled, surrendered or restricted to prohibit the practice of medicine
or   to  preclude  the  delivery  of  patient  care,  refrain  from  new
advertising and make reasonable efforts to cease current advertising  by
which his or her eligibility to practice medicine is represented.
In  addition  to  any  other  penalty  provided for in law, failure to
comply with the  requirements  of  this  subparagraph  shall  constitute
misconduct that may be prosecuted pursuant to this section and which may
subject  the licensee to the imposition of additional penalties pursuant
to section two hundred thirty-a of this title.
(i) The determinations of a committee on professional conduct  of  the
state  board  for  professional  medical  conduct may be reviewed by the
administrative review board for professional medical conduct.
(j) Time limitations. Failure to  comply  with  a  provision  of  this
subdivision  requiring  that  a specified action shall be taken within a
specified period of time shall be grounds for a proceeding  pursuant  to
article  seventy-eight  of the civil practice law and rules for an order
staying the hearing or dismissing the charges or any part thereof or any
other appropriate relief. Such proceeding shall be returnable before the
supreme court of Albany county or New York  county.  The  respondent  in
such proceeding shall have the initial burden to explain the reasons for
the  failure  to  comply  with a provision of this subdivision requiring
that a specified action to be taken within a specified period  of  time.
The court shall not stay the hearing or dismiss the charges or grant any
other  relief unless it determines that failure to comply was not caused
by the article  seventy-eight  petitioner  and  has  caused  substantial
prejudice to the article seventy-eight petitioner.
(k) The executive secretary of the board with the specific approval of
a committee on professional conduct of the board shall have the power to
issue  subpoenas  requiring  persons  to  appear before the board and be
examined with reference to a matter within the scope of the  inquiry  or

the  investigation  being  conducted  by  the  board  and produce books,
papers, records or documents pertaining thereto.
(l) The board or its representatives may examine and obtain records of
patients  in  any investigation or proceeding by the board acting within
the scope of its authorization. Unless expressly waived by the  patient,
any  information  so  obtained  shall  be  confidential and shall not be
disclosed except to the extent necessary for the proper function of  the
board  and  the name of the patient may not be disclosed by the board or
its employees at any stage of the proceedings  unless  the  patient  has
expressly consented. Any other use or dissemination by any person by any
means,  unless  pursuant to a valid court order or otherwise provided by
law, is prohibited.
(m)  Expedited  procedures.  (i)  Violations.   Violations   involving
professional  misconduct  of a minor or technical nature may be resolved
by expedited procedures as provided in subparagraph  (ii)  or  (iii)  of
this  paragraph. For purposes of this paragraph 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.
(ii)  Administrative  warning and consultation. If the director of the
office of professional medical conduct, after obtaining the  concurrence
of  a  majority  of  a  committee  on  professional  conduct,  and after
consultation with the executive  secretary,  determines  that  there  is
substantial  evidence of professional misconduct of a minor or technical
nature or of substandard medical  practice  which  does  not  constitute
professional  misconduct,  the  director  may  issue  an  administrative
warning and/or provide for consultation with a  panel  of  one  or  more
experts,  chosen  by  the  director.  Panels  of one or more experts may
include, but shall not be limited to,  a  peer  review  committee  of  a
county medical society or a specialty board. Administrative warnings and
consultations   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.
(iii)  Violation  committee  proceeding.  If  the director determines,
after obtaining  the  concurrence  of  a  majority  of  a  committee  on
professional   conduct,   and  after  consultation  with  the  executive
secretary, that there is substantial evidence of a  violation  and  that
the  violation  is of a nature justifying a penalty as specified in this
subparagraph the department may prepare and  serve  charges,  either  by
personal  service  or  by  certified  mail,  return receipt requested. A
violation committee proceeding shall be commenced within three years  of
the  alleged  professional  misconduct.  Such  charges  shall  include a
statement  that  the  matter  shall  be  referred  to  a  committee   on
professional  conduct,  which  shall  act  as a violations committee for
determination. The  violations  committee  shall  be  appointed  by  the
chairperson  of  the  state board.   Paragraph (c) of subdivision ten of
this section shall apply to the proceeding. A stenographic record of the
hearing shall be made. The evidence in support of the charges  shall  be
presented  by  an  attorney  and  the  licensee  shall  be  afforded  an
opportunity to be heard and to present  evidence  in  his  behalf.  Such
violations  committee may issue a censure and reprimand, may require the
licensee to perform up to twenty-five  hours  of  public  service  in  a
facility  licensed pursuant to article twenty-eight of this chapter in a
manner and at a time and place directed by the board, 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.  The
violations  committee  may  alternatively  dismiss  the  charges  in the
interest of justice. The order shall be served either by certified  mail
to  the  licensee's  last  known  address  and  such  services  shall be
effective upon receipt or seven days after  mailing  by  certified  mail
whichever  is  earlier  or by personal service and such service shall be
effective upon receipt. The order may be reviewed by the  administrative
appeals board for professional medical conduct.
(n)  Engagement.  A  proceeding under 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.
(o)  Orders  for  review  of  medical  records. Where the director has
issued an order for a comprehensive medical review  of  patient  records
and  office  records  pursuant  to subparagraph four of paragraph (a) of
this subdivision and  the  licensee  has  refused  to  comply  with  the
director's  order,  the  director  may apply to a justice of the supreme
court, in writing, on notice to the  licensee,  for  a  court  order  to
compel  compliance  with the director's order. The court shall not grant
the application unless it finds that (i) there was  a  reasonable  basis
for  issuance of the director's order and (ii) there is reasonable cause
to believe that the records sought are relevant to the director's order.
The court may deny the application or grant the application in whole  or
in part.
(p)  Convictions  of  crimes or administrative violations. In cases of
professional misconduct based solely upon  a  violation  of  subdivision
nine  of  section  sixty-five  hundred  thirty of the education law, the
director may direct that charges be prepared and served  and  may  refer
the  matter  to  a  committee on professional conduct for its review and
report of findings, conclusions as to guilt, and determination. In  such
cases,  the notice of hearing shall state that the licensee shall file a
written answer to each of the charges and allegations in  the  statement
of  charges  no  later  than ten days prior to the hearing, and that any
charge or allegation not so answered shall be deemed admitted, that  the
licensee  may  wish  to  seek the advice of counsel prior to filing such
answer that the licensee may  file  a  brief  and  affidavits  with  the
committee   on  professional  conduct,  that  the  licensee  may  appear
personally  before  the  committee  on  professional  conduct,  may   be
represented  by  counsel  and may present evidence or sworn testimony in
his or her behalf, and the notice may contain such other information  as
may  be  considered appropriate by the director. The department may also
present evidence or sworn testimony and file a brief at the  hearing.  A
stenographic record of the hearing shall be made. Such evidence or sworn
testimony  offered  to  the  committee  on professional conduct shall be
strictly limited to evidence and testimony relating to  the  nature  and
severity  of  the  penalty  to  be  imposed upon the licensee. Where the
charges are based on  the  conviction  of  state  law  crimes  in  other
jurisdictions, evidence may be offered to the committee which would show
that  the  conviction  would  not  be  a  crime  in  New York state. The
committee on professional conduct may reasonably  limit  the  number  of
witnesses  whose  testimony  will be received and the length of time any
witness will be permitted to testify. The determination of the committee
shall be served upon the licensee and the department in accordance  with
the  provisions  of  paragraph  (h) of this subdivision. A determination
pursuant to this subdivision  may  be  reviewed  by  the  administrative
review board for professional medical conduct.
(q)  At  any time subsequent to the final conclusion of a professional
misconduct proceeding against a licensee, whether upon the determination
and order of a hearing committee issued pursuant  to  paragraph  (h)  of

this   subdivision   or   upon   the  determination  and  order  of  the
administrative  review  board  issued  pursuant  to  paragraph  (d)   of
subdivision  four  of  section  two  hundred thirty-c of this title, the
licensee  may  file  a petition with the director, requesting vacatur or
modification of the determination and order. The director  shall,  after
reviewing  the  matter  and  after  consulting  with department counsel,
determine in the reasonable exercise of his or  her  discretion  whether
there  is  new  and  material evidence that was not previously available
which, had it been available, would  likely  have  led  to  a  different
result,  or  whether  circumstances  have  occurred  subsequent  to  the
original determination that warrant a reconsideration of the measure  of
discipline.  Upon determining that such evidence or circumstances exist,
the director shall have  the  authority  to  join  the  licensee  in  an
application  to  the  chairperson  of  the  state board for professional
medical conduct to vacate or modify the determination and order, as  the
director  may  deem  appropriate.  Upon  the  joint  application  of the
licensee and the director, the chairperson shall have the  authority  to
grant or deny such application.
11. Reporting of professional misconduct:
(a)  The  medical society of the state of New York, the New York state
osteopathic society or any district osteopathic society,  any  statewide
medical  specialty  society  or  organization,  and every county medical
society,  every  person  licensed  pursuant  to  articles  one   hundred
thirty-one,  one  hundred  thirty-one-B,  one  hundred thirty-three, one
hundred thirty-seven and one hundred thirty-nine of the  education  law,
and  the chief executive officer, the chief of the medical staff and the
chairperson of each department of every institution which is established
pursuant to article twenty-eight of this  chapter  and  a  comprehensive
health  services  plan pursuant to article forty-four of this chapter or
article forty-three of the insurance law, shall, and  any  other  person
may,  report  to  the  board  any information which such person, medical
society, organization institution or plan has which  reasonably  appears
to  show that a licensee is guilty of professional misconduct as defined
in sections sixty-five hundred thirty and sixty-five hundred  thirty-one
of  the  education law. Such reports shall remain confidential and shall
not  be  admitted  into  evidence  in  any  administrative  or  judicial
proceeding  except  that  the  board,  its  staff, or the members of its
committees may begin investigations on the basis of such reports and may
use them to develop further information.
(b)  Any  person,  organization,   institution,   insurance   company,
osteopathic  or  medical  society who reports or provides information to
the board in good faith, and without malice shall not be subject  to  an
action for civil damages or other relief as the result of such report.
(c)  Notwithstanding  the foregoing, no physician shall be responsible
for reporting pursuant to paragraph (a) of this subdivision with respect
to any information discovered by such physician solely as a result of:
(i) Participation in a properly conducted mortality  and/or  morbidity
conference,  departmental  meeting  or  a  medical  or  tissue committee
constituted pursuant  to  the  by-laws  of  a  hospital  which  is  duly
established  pursuant  to article twenty-eight of the public health law,
unless the procedures of such conference,  department  or  committee  of
such  hospital  shall  have  been  declared  to  be unacceptable for the
purpose hereof by the commissioner, and provided that the obligations of
reporting such information when  appropriate  to  do  so  shall  be  the
responsibility  of  the  chairperson  of  such conference, department or
committee, or
* (ii) Participation and membership during a three year  demonstration
period  in  a physician committee of the Medical Society of the State of

New York or the New York State Osteopathic Society whose purpose  is  to
confront  and  refer  to  treatment  physicians  who  are  thought to be
suffering  from  alcoholism,  drug  abuse,  or  mental   illness.   Such
demonstration  period  shall  commence  on April first, nineteen hundred
eighty and terminate on May thirty-first, nineteen hundred eighty-three.
An  additional  demonstration  period  shall  commence  on  June  first,
nineteen  hundred  eighty-three  and  terminate  on  March thirty-first,
nineteen hundred eighty-six. An additional  demonstration  period  shall
commence  on  April  first, nineteen hundred eighty-six and terminate on
March  thirty-first,  nineteen  hundred   eighty-nine.   An   additional
demonstration  period  shall  commence  April  first,  nineteen  hundred
eighty-nine  and  terminate   March   thirty-first,   nineteen   hundred
ninety-two.  An  additional  demonstration  period  shall commence April
first, nineteen hundred ninety-two  and  terminate  March  thirty-first,
nineteen  hundred  ninety-five. An additional demonstration period shall
commence on April first, nineteen hundred ninety-five and  terminate  on
March   thirty-first,   nineteen  hundred  ninety-eight.  An  additional
demonstration period shall commence on  April  first,  nineteen  hundred
ninety-eight and terminate on March thirty-first, two thousand three. An
additional  demonstration  period  shall  commence  on  April first, two
thousand  three  and  terminate  on  March  thirty-first,  two  thousand
thirteen. An additional demonstration period shall commence April first,
two  thousand thirteen and terminate on March thirty-first, two thousand
eighteen. An additional demonstration period shall commence April first,
two  thousand  eighteen  and  terminate  on  July  first,  two  thousand
twenty-eight  provided,  however,  that  the  commissioner may prescribe
requirements  for  the  continuation  of  such  demonstration   program,
including  periodic  reviews  of  such  programs  and  submission of any
reports  and  data  necessary  to  permit  such  reviews.  During  these
additional periods, the provisions of this subparagraph shall also apply
to a physician committee of a county medical society.
* NB Expires July 1, 2028
(d)  In  the  event  that  a  physician or administrator of a hospital
established pursuant to  article  twenty-eight  of  this  chapter  shall
reasonably be unable to determine if any information which he or she has
is such that it does reasonably appear to show that a licensee is guilty
of  professional  misconduct and therefore creates an obligation on such
physician or such administrator to make a report pursuant  to  paragraph
(a) hereof, he or she may either:
(i)  in  accordance  with  procedures  established  by  the board, and
without revealing the name of the licensee who he or she is  considering
making  such  a report about, request in writing the advice of the board
as to whether or not a report should  be  made,  and  the  physician  or
administrator so requesting such advice shall then be required to comply
with  the  advice of the board. No such request for advice shall relieve
the requesting physician or administrator of  any  obligation  hereunder
unless all other material facts are revealed, other than the name of the
licensee in question, or
(ii)  in  the  case where the licensee about whom another physician is
considering making such report is affiliated with a  hospital  which  is
duly  established  pursuant  to  article twenty-eight of this chapter, a
physician may elect to fulfill the obligations of paragraph  (a)  hereof
by  reporting such information to the appropriate executive committee or
professional practices peer review committee which is  duly  constituted
pursuant  to by-laws of such hospital, unless the peer review procedures
of such hospital shall have been declared to  be  unacceptable  for  the
purposes  hereof  by  the  commissioner.  The  physician members of such
hospital executive  committee  or  professional  practices  peer  review

committee  shall  thereupon  have  the  responsibility of reporting such
information to the board pursuant to paragraph (a) hereof,  as  required
thereby,  but  in the event that such committee determines that a report
shall  be  made  to  the  board,  the  chairperson of such committee may
fulfill the obligation of reporting on behalf of all the members of  the
committee, or
(iii)  in  a  case  where  the  physician,  about  whom  he  or she is
considering making such report, is a member of a county medical  society
or  district osteopathic society, and is not affiliated with a hospital,
but practices his or her profession within such county  or  district,  a
physician  may  elect to fulfill the obligations of paragraph (a) hereof
by  reporting  such  information  to  the  appropriate  county   medical
society's  or  district  osteopathic  society's  professional  practices
review committee duly constituted pursuant to the by-laws of such county
medical society or  district  osteopathic  society,  unless  the  review
procedures  of  such  county  medical  society  or  district osteopathic
society shall have been declared to be  unacceptable  for  the  purposes
hereof  by  the  commissioner.  The  physician  members  of  such review
committee shall thereupon have  the  responsibility  of  reporting  such
information  to  the board pursuant to paragraph (a) hereof, as required
thereby, but in the event that such committee determines that  a  report
shall  be  made  to  the  board,  the  chairperson of such committee may
fulfill the obligation of reporting on behalf of all the members of  the
committee.
(e)  Nothing contained in this subdivision shall be so construed as to
require any physician  to  violate  a  physician/patient  privilege  and
therefore,  no  physician shall be required to report any information to
the board which such  physician  has  learned  solely  as  a  result  of
rendering treatment to another physician.
(f)  A  violation  of  this  subdivision  shall  not be subject to the
provisions of sections twelve and twelve-b of this chapter.
* (g) (i) Any physician committee of the Medical Society of the  State
of  New York, the New York State Osteopathic Society or a county medical
society referred to in  subparagraph  (ii)  of  paragraph  (c)  of  this
subdivision  shall develop procedures in consultation with, and approved
by, the commissioner, including but not limited to the following:
(A)  The  committee  shall  disclose  at  least  once  a  month   such
information  as  the  director  of  the  office  of professional medical
conduct may deem appropriate regarding  reports  received,  contacts  or
investigations made and the disposition of each report, provided however
that  the  committee  shall  not  disclose  any  personally identifiable
information  except  as  provided  in  clause  (B)  or   (C)   of   this
subparagraph.
(B)  The  committee shall immediately report to the director the name,
all information obtained and the results of any contact or investigation
regarding any physician who is believed to be an imminent danger to  the
public.
(C) The committee shall report to the director in a timely fashion all
information  obtained  regarding  any physician who refuses to cooperate
with the committee, refuses to submit to treatment, or whose  impairment
is not substantially alleviated through treatment.
(D)  The committee shall inform each physician who is participating in
a program of the procedures followed in the program, of the  rights  and
responsibilities  of  the  physician  in the program and of the possible
results of noncompliance with the program.
** (ii) No member of any such committee; nor the  Medical  Society  of
the  State  of  New  York,  the  New York State Osteopathic Society or a
county medical society referred to in subparagraph (ii) of paragraph (c)

of this  subdivision  that  establishes  a  committee;  nor  any  agent,
servant,  representative  or  employee that provides service to any such
committee or society, shall be liable for damages to any person for  any
action  taken  by  such  committee,  society,  member,  agent,  servant,
representative or employee provided that such action was  taken  without
malice and within the scope of such individual's or entity's function in
relation to such committee.
** NB Repealed July 1, 2028
** (iii) The committee, in conjunction with the director of the office
of professional medical conduct, shall develop appropriate consent forms
and  disclosure  proceedings  as  may  be  necessary  under  any federal
statute, rule or regulation in order to permit  the  disclosure  of  the
information as may be required under clauses (B) and (C) of subparagraph
(i) of this paragraph.
** NB Repealed July 1, 2028
**(iv)  Except  as  provided in this paragraph and notwithstanding any
other provision of law, neither the proceedings nor the records  of  any
such  physician  committee  shall be subject to disclosure under article
thirty-one of the civil practice law and rules nor shall any  member  of
any  such  committee nor any person in attendance at any such meeting be
required to testify as to what transpired thereat.
** NB Repealed July 1, 2028
* NB Expires July 1, 2028
(h) The office of professional  medical  conduct  shall  post  on  its
website information on patients' rights and reporting options under this
subdivision  regarding professional misconduct, which shall specifically
include information  on  reporting  instances  of  misconduct  involving
sexual  harassment  and assault. All physicians' practice settings shall
conspicuously post signage, visible to their  patients,  directing  such
patients  to  the  office  of professional medical conduct's website for
information  about  their  rights  and  how   to   report   professional
misconduct.
12.  Summary  action.  (a)  Whenever the commissioner, (i) after being
presented with  information  indicating  that  a  licensee  is  causing,
engaging in or maintaining a condition or activity which has resulted in
the  transmission or suspected transmission, or is likely to lead to the
transmission, of communicable disease as defined in the  state  sanitary
code  or  HIV/AIDS, by the state and/or a local health department and if
in the commissioner's opinion it would be prejudicial to  the  interests
of  the people to delay action until an opportunity for a hearing can be
provided in accordance with the prehearing  and  hearing  provisions  of
this  section;  or (ii) after an investigation and a recommendation by a
committee on professional conduct of the state  board  for  professional
medical  conduct, based upon a determination that a licensee is causing,
engaging in  or  maintaining  a  condition  or  activity  which  in  the
commissioner's  opinion  constitutes an imminent danger to the health of
the people, and that it therefore  appears  to  be  prejudicial  to  the
interests  of  the  people  to  delay  action until an opportunity for a
hearing can be provided in accordance with the  prehearing  and  hearing
provisions  of this section; the commissioner may order the licensee, by
written notice, to discontinue such dangerous condition or  activity  or
take certain action immediately and for a period of ninety days from the
date  of  service of the order. Within ten days from the date of service
of the said order, the state  board  for  professional  medical  conduct
shall  commence  and  regularly  schedule  such  hearing  proceedings as
required by this section, provided, however, that the hearing  shall  be
completed within ninety days of the date of service of the order. To the
extent  that  the  issue  of  imminent  danger can be proven without the

attorney representing the office of professional medical conduct putting
in its entire case, the committee of the  board  shall  first  determine
whether  by  a  preponderance  of  the evidence the licensee is causing,
engaging  in or maintaining a condition or activity which constitutes an
imminent danger to the health of the people. The  attorney  representing
the  office  of  professional  medical  conduct shall have the burden of
going forward and proving by a preponderance of the  evidence  that  the
licensee's  condition,  activity  or  practice  constitutes  an imminent
danger to  the  health  of  the  people.  The  licensee  shall  have  an
opportunity  to  be heard and to present proof. When both the office and
the licensee have completed their cases with respect to the question  of
imminent  danger,  the committee shall promptly make a recommendation to
the commissioner on the issue of imminent danger and  determine  whether
the  summary  order  should  be left in effect, modified or vacated, and
continue the hearing on all the remaining charges, if any, in accordance
with paragraph (f) of subdivision ten of this section. Within  ten  days
of  the  committee's  recommendation,  the  commissioner shall determine
whether or not to adopt the committee's recommendations, in whole or  in
part, and shall leave in effect, modify or vacate his summary order. The
state board for professional medical conduct shall make every reasonable
effort   to   avoid   any  delay  in  completing  and  determining  such
proceedings. If, at the conclusion  of  the  hearing,  (i)  the  hearing
committee  of  the board finds the licensee guilty of one or more of the
charges which are the basis for the  summary  order,  (ii)  the  hearing
committee  determines  that  the  summary  order continue, and (iii) the
ninety day term of the order has not expired, the  summary  order  shall
remain in full force and effect until a final decision has been rendered
by  the  committee or, if review is sought, by the administrative review
board. A summary order shall be public upon issuance.
(b) When a licensee has pleaded or been found guilty or  convicted  of
committing  an  act  constituting  a  felony under New York state law or
federal law, or the law of  another  jurisdiction  which,  if  committed
within  this state, would have constituted a felony under New York state
law, or when  a  licensee  has  been  charged  with  committing  an  act
constituting  a felony under New York state or federal law or the law of
another jurisdiction, where the licensee's alleged  conduct,  which,  if
committed  within  this state, would have constituted a felony under New
York state law, and in the commissioner's opinion the licensee's alleged
conduct constitutes an imminent danger to the health of the  people,  or
when  the  duly  authorized  professional disciplinary agency of another
jurisdiction has made a finding substantially equivalent  to  a  finding
that  the  practice  of  medicine  by  the licensee in that jurisdiction
constitutes an imminent danger to the health of its people,  or  when  a
licensee   has  been  disciplined  by  a  duly  authorized  professional
disciplinary agency of another jurisdiction for acts which if  committed
in this state would have constituted the basis for summary action by the
commissioner   pursuant  to  paragraph  (a)  of  this  subdivision,  the
commissioner, after a recommendation  by  a  committee  of  professional
conduct  of  the state board for professional medical conduct, may order
the  licensee,  by  written  notice,  to  discontinue  or  refrain  from
practicing  medicine  in  whole  or  in  part or to take certain actions
authorized  pursuant  to  this  title  immediately.  The  order  of  the
commissioner  shall  constitute  summary action against the licensee and
become public upon issuance. The  summary  suspension  shall  remain  in
effect  until  the  final  conclusion  of a hearing which shall commence
within ninety days of the date of service of the  commissioner's  order,
end  within  ninety  days thereafter and otherwise be held in accordance
with paragraph (a) of this subdivision, provided, however, that when the

commissioner's order is based upon a finding substantially equivalent to
a finding that the practice of  medicine  by  the  licensee  in  another
jurisdiction constitutes an imminent danger to the health of its people,
the  hearing  shall  commence  within thirty days after the disciplinary
proceedings in that jurisdiction are finally concluded. If, at any time,
the felony charge is dismissed, withdrawn or  reduced  to  a  non-felony
charge, the commissioner's summary order shall terminate.
13.  (a)  Temporary  surrender.  The  license  and  registration  of a
licensee who may be temporarily incapacitated for the active practice of
medicine and whose alleged incapacity has not  resulted  in  harm  to  a
patient  may  be  voluntarily  surrendered to the board for professional
medical conduct, which may accept  and  hold  such  license  during  the
period  of such alleged incapacity or the board for professional medical
conduct may accept the surrender of  such  license  after  agreement  to
conditions  to be met prior to the restoration of the license. The board
shall give prompt written notification of such surrender to the division
of professional licensing services of the  state  education  department,
and  to each hospital at which the licensee has privileges. The licensee
whose license is so  surrendered  shall  notify  all  patients  and  all
persons  who  request medical services that the licensee has temporarily
withdrawn from the practice of medicine. The licensure  status  of  each
such  licensee  shall  be  "inactive"  and  the  licensee  shall  not be
authorized to practice medicine. The temporary surrender  shall  not  be
deemed  to  be an admission of disability or of professional misconduct,
and shall not be used as evidence of a violation of subdivision seven or
eight of section sixty-five hundred thirty of the education  law  unless
the  licensee  practices  while  the  license  is  "inactive".  Any such
practice shall constitute a violation of subdivision twelve  of  section
sixty-five  hundred  thirty  of  the  education  law. The surrender of a
license under this subdivision shall not  bar  any  disciplinary  action
except  action  based solely upon the provisions of subdivision seven or
eight of section sixty-five hundred thirty  of  the  education  law  and
where  no harm to a patient has resulted, and shall not bar any civil or
criminal action or proceeding which might be brought without  regard  to
such  surrender.  A surrendered license shall be restored upon a showing
to the satisfaction of a committee of professional conduct of the  state
board  for  professional  medical  conduct  that  the  licensee  is  not
incapacitated for the active practice  of  medicine  provided,  however,
that  the committee may impose reasonable conditions on the licensee, if
it determined that due to the nature and extent of the licensee's former
incapacity such conditions are necessary to protect the  health  of  the
people. The chairperson of the committee shall issue a restoration order
adopting  the  decision of the committee. Prompt written notification of
such  restoration  shall  be  given  to  the  division  of  professional
licensing  services  of  the  state  education  department  and  to  all
hospitals which were notified of the surrender of the license.
(b) Permanent surrender. The license and registration  of  a  licensee
who  may  be  permanently  incapacitated  for  the  active  practice  of
medicine, and whose alleged incapacity has not resulted  in  harm  to  a
patient,  may  be  voluntarily surrendered to the board for professional
medical conduct. The board shall give  prompt  written  notification  of
such surrender to the division of professional licensing services of the
state  education  department, and to each hospital at which the licensee
has privileges. The licensee  whose  license  is  so  surrendered  shall
notify  all  patients  and all persons who request medical services that
the licensee has permanently withdrawn from the  practice  of  medicine.
The  permanent  surrender  shall  not  be  deemed  to be an admission of
disability of or professional misconduct,  and  shall  not  be  used  as

evidence  of  a  violation  of  subdivision  seven  or  eight of section
sixty-five hundred thirty of the education law. The surrender shall  not
bar  any  civil  or criminal action or proceeding which might be brought
without  regard  to  such  surrender. There shall be no restoration of a
license that has been surrendered pursuant to this subdivision.
14. Reports.  The  board  shall  prepare  an  annual  report  for  the
legislature,  the  governor  and  other  executive  offices, the medical
profession, medical professional societies, consumer agencies and  other
interested  persons. Such report shall include, but shall not be limited
to, a description and analysis  of  the  administrative  procedures  and
operations  based upon a statistical summary relating to (i) discipline,
(ii) complaint, investigation, and hearing  backlog  and  (iii)  budget.
Information  provided for these sections shall be enumerated by regional
office of the office of professional medical conduct.
* 15. The commissioner shall make grants to any physician committee as
referred to in subparagraph (ii) of paragraph (c) of subdivision  eleven
of  this  section  to  fund  the operations of such committee during the
authorized demonstration period. Grants shall be awarded pursuant to  an
expenditure   plan   developed   by   the   sponsoring  organization  in
consultation with, and approved by the commissioner. No funds  shall  be
made  available  unless the committee's procedures have been approved by
the commissioner pursuant to paragraph (g) of subdivision eleven of this
section.
* NB Repealed July 1, 2028
16. Liability. Notwithstanding any other provision of law, persons who
assist the department as consultants, expert  witnesses,  administrative
officers  or  monitors  in  the investigation, prosecution or hearing of
alleged  professional   misconduct,   licensure   matters,   restoration
proceedings,   probation,  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.
17.  Monitoring.  (a)  A  licensee  may  be ordered to have his or her
practice monitored by another appropriate licensee  after  investigation
and review pursuant to paragraph (a) of subdivision ten of this section,
if  there  is  reason to believe that the licensee is unable to practice
medicine with reasonable skill and safety to patients.
(b) The director of the office of professional medical conduct,  after
consultation  with  the  executive  secretary,  shall  direct counsel to
prepare a notice detailing the reasonable cause and a copy of the notice
shall be served on the licensee. The matter  shall  be  presented  to  a
committee  on professional conduct by an attorney for the department and
the licensee shall have the opportunity to be heard  by  such  committee
and  may  be  represented  by  counsel.  A  stenographic  record  of the
proceeding shall be made. Service of the notice shall be  in  accordance
with  the  methods of service authorized by paragraph (d) of subdivision
ten of this section.
(c) If the  committee  determines  that  reasonable  cause  exists  as
specified  in  paragraph  (a)  of  this  subdivision  and  that there is
insufficient evidence for the matter to constitute misconduct as defined
in sections sixty-five hundred thirty  and  section  sixty-five  hundred
thirty-one  of  the  education  law,  the  committee  may issue an order
directing that the licensee's practice of medicine be  monitored  for  a
period  specified in the order, which shall in no event exceed one year,
by a licensee approved by the director, which  may  include  members  of
county medical societies or district osteopathic societies designated by

the  commissioner.  The licensee responsible for monitoring the licensee
shall submit regular reports to the director. If the licensee refuses to
cooperate with  the  licensee  responsible  for  monitoring  or  if  the
monitoring licensee submits a report that the licensee is not practicing
medicine  with  reasonable  skill and safety to his or her patients, the
committee may refer the matter to the director for  further  proceedings
pursuant  to  subdivision ten of this section. An order pursuant to this
paragraph shall be  kept  confidential  and  shall  not  be  subject  to
discovery  or  subpoena,  unless the licensee refuses to comply with the
order.
(d) A licensee may not seek the appointment of a monitor  pursuant  to
this  subdivision  in  lieu  of  an order issued pursuant to subdivision
seven  of  this  section  or  a  disciplinary  proceeding  pursuant   to
subdivision ten or twelve of this section.
18.  (a)  The director shall have the authority to monitor physicians,
physician's assistants and specialist's assistants who have been  placed
on  probation  pursuant to a determination of professional misconduct by
the board. During such period of probation, the director, or his or  her
designee,  as provided in the order of the board, and after consultation
with  the  executive  secretary,  (i)  may   review   the   professional
performance  of  the  licensee  by  randomly  selecting  office records,
patient records and hospital charts, (ii) may require periodic visits by
the licensee to a member of the state  board  for  professional  medical
conduct  or  an  employee of the office of professional medical conduct,
(iii) may  require  the  licensee  to  obtain  an  appropriate  monitor,
approved  by  the director, to monitor the licensee's practice, (iv) may
require an audit of the licensee's billings for services rendered during
probation, (v) may require the licensee to submit on a random  basis  to
tests  for  the  presence  of  alcohol  or  drugs,  (vi) may require the
licensee to obtain  additional  training  prior  to  completion  of  the
probation,  (vii)  may  require  the  licensee  to  work in a supervised
setting, (viii) may require, as a condition of the licensee's  continued
practice,  that  the  licensee undergo therapy and/or treatment approved
and monitored by the director, (ix) may require that the licensee comply
with the requirements of the penalty imposed, and (x)  may  impose  upon
the  licensee  such  additional requirements as reasonably relate to the
misconduct found or are necessary to protect the health  of  the  people
pursuant  to  regulation. The director is authorized to delegate some or
all of the  foregoing  responsibilities  to  designated  county  medical
societies and district osteopathic societies.
(b)  Any health care provider licensed pursuant to this chapter or the
education law, hospital licensed pursuant  to  article  twenty-eight  of
this  chapter  or  medical  school  that participates in a monitoring or
remediation  program  pursuant  to  this  subdivision  and   subdivision
seventeen  of this section shall not be liable for the negligence of the
monitored licensee in providing medical care pursuant  to  a  monitoring
program.  However,  this  paragraph  does not diminish the participating
provider's, hospital's or school's liability  for  failure  to  exercise
reasonable  care in properly carrying out its responsibilities under the
program. The monitored licensee shall be required  to  maintain  medical
malpractice  insurance  coverage  with  limits  no less than two million
dollars per occurrence and six million dollars per policy year.
19. Upon receipt of information that indicates a licensee  may  be  in
violation  of  the terms or conditions of probation, the director of the
office of professional medical conduct shall conduct  an  investigation.
If  the director determines that a licensee may have violated probation,
the director shall give notice by letter to the licensee  of  the  facts
forming the basis of the alleged violation of probation by the licensee,

that  the  licensee  has  a right to a hearing and may be represented by
counsel. If the licensee does not dispute the facts forming the basis of
the alleged violation of probation within twenty days of the date of the
letter,  the  director  shall  submit  the  matter  to  a  committee  on
professional conduct for its review and determination. If within  twenty
days  of  the date of the letter, the licensee disputes any of the facts
forming the basis of the alleged violation of  probation,  the  licensee
shall  be  afforded a hearing before a committee on professional conduct
to  hear  and  make  findings  of  fact,  conclusions  of  law   and   a
determination.  A  stenographic record of the hearing shall be made. The
committee, after providing a licensee with an opportunity to  be  heard,
shall  determine  whether  the licensee has violated probation and shall
impose an appropriate penalty as defined in section two hundred thirty-a
of this title. In determining the  appropriate  penalty,  the  committee
shall   consider   both   the  violation  of  probation  and  the  prior
adjudication of misconduct. The chairperson of the committee shall issue
an order adopting the decision of the committee on professional conduct.
The order may  be  reviewed  by  the  administrative  review  board  for
professional medical conduct.