§ 6510 — Proceedings in cases of professional misconduct

New York § 6510

• Jurisdiction: New York
• Law EDN: Education
• Title 8: The Professions
• Art. 130*: General Provisions

Text

§ 6510. Proceedings in cases of professional misconduct. In cases of\nprofessional misconduct the proceedings shall be as follows:\n 1. Preliminary procedures.\n a. Complaint. A complaint of a licensee's professional misconduct may\nbe made by any person to the education department.\n b. Investigation. The department shall investigate each complaint\nwhich alleges conduct constituting professional misconduct. The results\nof the investigation shall be referred to the professional conduct\nofficer designated by the board of regents pursuant to section\nsixty-five hundred six of this article. If such officer decides that\nthere is not substantial evidence of professional misconduct or that\nfurther proceedings are not warranted, no further action shall be taken.\nIf such officer, after consultation with a professional member of the\napplicable state board for the profession, determines that there is\nsubstantial evidence of professional misconduct, and that further\nproceedings are warranted, such proceedings shall be conducted pursuant\nto this section. If the complaint involves a question of professional\nexpertise, then such officer may seek, and if so shall obtain, the\nconcurrence of at least two members of a panel of three members of the\napplicable board. The department shall cause a preliminary review of\nevery report made to the department pursuant to section twenty-eight\nhundred three-e as added by chapter eight hundred sixty-six of the laws\nof nineteen hundred eighty and sections forty-four hundred five-b of the\npublic health law and three hundred fifteen of the insurance law, to\ndetermine if such report reasonably appears to reflect conduct\nwarranting further investigation pursuant to this subdivision.\n b-1. Legally protected health activities. The department shall not\ncharge a licensee, acting within their scope of practice, with\nprofessional misconduct as defined in section sixty-five hundred nine of\nthis subarticle, or cause a complaint made by any person to the\ndepartment to be investigated beyond a preliminary review, solely on the\nbasis that such licensee engaged in legally protected health activity,\nas defined by section 570.17 of the criminal procedure law. Such\npreliminary review shall determine if such report reasonably appears to\nreflect conduct warranting further investigation pursuant to this\nparagraph.\n c. Charges. In all disciplinary proceedings other than those\nterminated by an administrative warning pursuant to paragraph a of\nsubdivision two of this section, the department shall prepare the\ncharges. The charges shall state the alleged professional misconduct and\nshall state concisely the material facts but not the evidence by which\nthe charges are to be proved.\n d. Records and reports as public information. In all disciplinary\nproceedings brought pursuant to this section or in any voluntary\nsettlement of a complaint between the licensee and the department, the\ndepartment shall notify the licensee in writing that the record and\nreports of such disciplinary proceeding or of such voluntary settlement\nshall be considered matters of public information unless specifically\nexcepted in this article, or in any other law or applicable rule or\nregulation.\n e. Service of charges and notice of hearing. In order to commence\ndisciplinary proceedings under this title, service of a copy of the\ncharges and notice of hearing must be completed twenty days before the\ndate of the hearing if by personal delivery, and must be completed\ntwenty-five days before the date of the hearing if by any other method.\n f. Service of charges and of notice of hearing upon a natural person.\nPersonal service of the charges and notice of any hearing pursuant to\nsubdivision two or three of this section upon a natural person shall be\nmade by any of the following methods:\n (1) by delivery within the state to the person to be served; or\n (2) by delivery within the state to a person of suitable age and\ndiscretion at the actual place of business, dwelling place or usual\nplace of abode of the person to be served and either: (i) by mailing by\ncertified mail, return receipt requested, to the person to be served at\nhis or her last known residence, or (ii) by mailing by certified mail,\nreturn receipt requested, to the person to be served at his or her last\naddress on file with the division of licensing services of the\ndepartment in an envelope bearing the legend "personal and\nconfidential," provided that, in either case: such delivery and mailing\nshall be effected within twenty days of each other; service pursuant to\nthis subparagraph shall be complete ten days after either the delivery,\nor the mailing, whichever is later; and proof of service shall, among\nother things, identify such person of suitable age and discretion and\nstate the date, time and place of such service; or\n (3) where service under subparagraphs one and two of this paragraph\ncannot be made with due diligence, a copy of the charges and the notice\nof hearing shall be served by certified mail, return receipt requested,\nto the person's last known address on file with the division of\nlicensing services of the department or by affixing the changes and the\nnotice of hearing to the door of either the actual place of business,\ndwelling place or usual place of abode of the person to be served;\nprovided that: service pursuant to this subparagraph shall be complete\nten days after such mailing, and proof of service shall set forth the\ndepartment's efforts of due diligence.\n g. Service of charges and notice of hearing outside of the state. A\nnatural person subject to the jurisdiction of the department may be\nserved with a copy of the charges and the notice of hearing outside of\nthe state in the same manner as service is made within the state, by any\nperson authorized to make service within the state of New York or by any\nperson authorized to make service by the laws of the state, territory,\npossession or country in which service is made or by any duly qualified\nattorney or equivalent in such jurisdiction.\n 2. Expedited procedures.\n a. Violations. Violations involving professional misconduct of a minor\nor technical nature may be resolved by expedited procedures as provided\nin paragraph b or c of this subdivision. For purposes of this\nsubdivision, violations of a minor or technical nature shall include,\nbut shall not be limited to, isolated instances of violations concerning\nprofessional advertising or record keeping, and other isolated\nviolations which do not directly affect or impair the public health,\nwelfare or safety. The board of regents shall make recommendations to\nthe legislature on or before June first, nineteen hundred eighty-one,\nfor the further definition of violations of a minor or technical nature.\nThe initial instance of any violation of a minor or technical nature may\nbe resolved by the issuance of an administrative warning pursuant to\nparagraph b of this subdivision. Subsequent instances of similar\nviolations of a minor or technical nature within a period of three years\nmay be resolved by the procedure set forth in paragraph c of this\nsubdivision.\n b. Administrative warning. If a professional conduct officer, after\nconsultation with a professional member of the state board, determines\nthat there is substantial evidence of professional misconduct but that\nit is an initial violation of a minor or technical nature which would\nnot justify the imposition of a more severe disciplinary penalty, the\nmatter may be terminated by the issuance of an administrative warning.\nSuch warnings shall be confidential and shall not constitute an\nadjudication of guilt or be used as evidence that the licensee is guilty\nof the alleged misconduct. However, in the event of a further allegation\nof similar misconduct by the same licensee, the matter may be reopened\nand further proceedings instituted as provided in this section.\n c. Determination of penalty on uncontested minor violations. If a\nprofessional conduct officer, after consultation with a professional\nmember of the state board, determines that there is substantial evidence\nof a violation of a minor or technical nature, and of a nature\njustifying a penalty as specified in this paragraph, the department may\nprepare and serve charges either by personal service or by certified\nmail, return receipt requested. Such charges shall include a statement\nthat unless an answer is received within twenty days denying the\ncharges, the matter shall be referred to a violations committee\nconsisting of at least three members of the state board for the\nprofession, at least one of whom shall be a public representative, for\ndetermination. The violations panel shall be appointed by the executive\nsecretary of the state board. The licensee shall be given at least\nfifteen days notice of the time and place of the meeting of the\nviolations committee and shall have the right to appear in person and by\nan attorney and to make a statement to the committee in mitigation or\nexplanation of the misconduct. The department may appear and make a\nstatement in support of its position. The violations committee may issue\na censure and reprimand, and in addition, or in the alternative, may\nimpose a fine not to exceed five hundred dollars for each specification\nof minor, or technical misconduct. If the fine is not paid within three\nmonths the matter may be reopened and shall be subject to the hearing\nand regents decision procedures of this section. The determination of\nthe panel shall be final and shall not be subject to the regents\ndecision procedures of this section. If an answer is filed denying the\ncharges, the matter shall be processed as provided in subdivision three\nof this section.\n d. Convictions of crimes or administrative violations. In cases of\nprofessional misconduct based solely upon a violation of subdivision\nfive of section sixty-five hundred nine of this article, the\nprofessional conduct officer may prepare and serve the charges and may\nrefer the matter directly to a regents review committee for its review\nand report of its findings, determination as to guilt, and\nrecommendation as to the measure of discipline to be imposed. In such\ncases the notice of hearing shall state that the licensee may file a\nwritten answer, brief and affidavits; that the licensee may appear\npersonally before the regents review committee, may be represented by\ncounsel and may present evidence or sworn testimony on behalf of the\nlicensee, and the notice may contain such other information as may be\nconsidered appropriate by the department. The department may also\npresent evidence or sworn testimony at the hearing. A stenographic\nrecord of the hearing shall be made. Such evidence or sworn testimony\noffered at the meeting of the regents review committee shall be limited\nto evidence and testimony relating to the nature and severity of the\npenalty to be imposed upon the licensee. The presiding officer at the\nmeeting of the regents review committee may, in his or her discretion,\nreasonably limit the number of witnesses whose testimony will be\nreceived and the length of time any witness will be permitted to\ntestify. In lieu of referring the matter to the board of regents, the\nregents review committee may refer any such matter for further\nproceedings pursuant to paragraph b or c of this subdivision or\nsubdivision three of this section.\n 3. Adversary proceedings. Contested disciplinary proceedings and other\ndisciplinary proceedings not resolved pursuant to subdivision two of\nthis section shall be tried before a hearing panel of the appropriate\nstate board as provided in this subdivision.\n a. Notice of hearing. The department shall set the time and place of\nthe hearing and shall prepare the notice of hearing. The notice of\nhearing shall state (1) the time and place of the hearing, (2) that the\nlicensee may file a written answer to the charges prior to the hearing,\n(3) that the licensee may appear personally at the hearing and may be\nrepresented by counsel, (4) that the licensee shall have the right to\nproduce witnesses and evidence in his behalf, to cross-examine witnesses\nand examine evidence produced against him, and to issue subpoenas in\naccordance with the provisions of the civil practice law and rules, (5)\nthat a stenographic record of the hearing will be made, and (6) such\nother information as may be considered appropriate by the department.\n b. Hearing panel. The hearing shall be conducted by a panel of three\nor more members, at least two of whom shall be members of the applicable\nstate board for the profession, and at least one of whom shall be a\npublic representative who is a member of the applicable state board or\nof the state board for another profession licensed pursuant to this\ntitle. The executive secretary for the applicable state board shall\nappoint the panel and shall designate its chairperson. After the\ncommencement of a hearing, no panel member shall be replaced. A\ndetermination by the administrative officer of a need to disqualify or\nremove any panel member will result in the disqualification or removal\nof the panel and cause a new panel to be appointed. In addition to said\npanel members, the department shall designate an administrative officer,\nadmitted to practice as an attorney in the state of New York, who shall\nhave the authority to rule on all motions, procedures and other legal\nobjections and shall draft a report for the hearing panel which shall be\nsubject to the approval of and signature by the panel chairperson on\nbehalf of the panel. The administrative officer shall not be entitled to\na vote.\n c. Conduct of hearing. The evidence in support of the charges shall be\npresented by an attorney for the department. The licensee shall have the\nrights required to be stated in the notice of hearing. The panel shall\nnot be bound by the rules of evidence, but its determination of guilt\nshall be based on a preponderance of the evidence. A hearing which has\nbeen initiated shall not be discontinued because of the death or\nincapacity to serve of one member of the hearing panel.\n d. Results of hearing. The hearing panel shall render a written report\nwhich shall include (1) findings of fact, (2) a determination of guilty\nor not guilty on each charge, and (3) in the event of a determination of\nguilty, a recommendation of the penalty to be imposed. For the panel to\nmake a determination of guilty, a minimum of two of the voting members\nof the panel must vote for such a determination. A copy of the report of\nthe hearing panel shall be transmitted to the licensee.\n 4. Regents decision procedures.\n a. Regents review committee. The transcript and report of the hearing\npanel shall be reviewed at a meeting by a regents review committee\nappointed by the board of regents. The regents review committee shall\nconsist of three members, at least one of whom shall be a regent.\n b. Regents review committee meetings. The review shall be based on the\ntranscript and the report of the hearing panel. The licensee may appear\nat the meeting, and the regents review committee may require the\nlicensee to appear. The licensee may be represented by counsel. The\ndepartment shall notify the licensee at least seven days before the\nmeeting (1) of the time and place of the meeting, (2) of his right to\nappear, (3) of his right to be represented by counsel, (4) whether or\nnot he is required to appear, and (5) of such other information as may\nbe considered appropriate. After the meeting, the regents review\ncommittee shall transmit a written report of its review to the board of\nregents. In cases referred directly to the regents review committee\npursuant to paragraph d of subdivision two of this section, the review\nshall be based upon the charges, the documentary evidence submitted by\nthe department, any answer, affidavits or brief the licensee may wish to\nsubmit, and any evidence or sworn testimony presented by the licensee or\nthe department at the hearing, pursuant to the procedures described by\nparagraph d of subdivision two of this section.\n c. Regents decision and order. The board of regents (1) shall consider\nthe transcript, the report of the hearing panel, and the report of the\nregents review committee, (2) shall decide whether the licensee is\nguilty or not guilty on each charge, (3) shall decide what penalties, if\nany, to impose as prescribed in section sixty-five hundred eleven of\nthis article, and (4) shall issue an order to carry out its decisions.\nSuch decisions shall require the affirmative vote of a majority of the\nmembers of the board of regents. If the board of regents disagrees with\nthe hearing panel's determination of not guilty, it shall remand the\nmatter to the original panel for reconsideration or to a new panel for a\nnew hearing. The panel's determination of not guilty on reconsideration\nor a new hearing shall be final. The order shall be served upon the\nlicensee personally or by certified mail to the licensee's last known\naddress and such service shall be effective as of the date of the\npersonal service or five days after mailing by certified mail. The\nlicensee shall deliver to the department the license and registration\ncertificate which has been revoked, annulled, suspended, or surrendered\nwithin five days after the effective date of the service of the order.\nIf the license or registration certificate is lost, misplaced or its\nwhereabouts is otherwise unknown, the licensee shall submit an affidavit\nto that effect, and shall deliver such license or certificate to the\ndepartment when located.\n 5. Court review procedures. The decisions of the board of regents may\nbe reviewed pursuant to the proceedings under article seventy-eight of\nthe civil practice law and rules. Such proceedings shall be returnable\nbefore the appellate division of the third judicial department, and such\ndecisions shall not be stayed or enjoined except upon application to\nsuch appellate division after notice to the department and to the\nattorney general and upon a showing that the petitioner has a\nsubstantial likelihood of success.\n 5-a. At any time, if the professional conduct officer or his or her\ndesignee designated to investigate a complaint of professional\nmisconduct of a licensed health care provider or licensed mental health\ncare provider determines that there is a reasonable belief that an act\nthat constitutes a sex offense identified in paragraph (h) of\nsubdivision three of section 130.05 of the penal law has been committed\nby the licensee against a client or patient during a treatment session,\nconsultation, interview, or examination, the professional conduct\nofficer or the office of professional discipline shall notify the\nappropriate law enforcement official or authority.\n 6. The provisions of subdivisions one through four of this section\nshall not be applicable to proceedings in cases of professional\nmisconduct involving the medical profession, except as provided in\nparagraph m of subdivision ten of section two hundred thirty of the\npublic health law.\n 7. Notwithstanding any other provision of law, persons who assist the\ndepartment as consultants or expert witnesses in the investigation or\nprosecution of alleged professional misconduct, licensure matters,\nrestoration proceedings, or criminal prosecutions for unauthorized\npractice, shall not be liable for damages in any civil action or\nproceeding as a result of such assistance, except upon proof of actual\nmalice. The attorney general shall defend such persons in any such\naction or proceeding, in accordance with section seventeen of the public\nofficers law.\n 8. The files of the department relating to the investigation of\npossible instances of professional misconduct, or the unlawful practice\nof any profession licensed by the board of regents, or the unlawful use\nof a professional title or the moral fitness of an applicant for a\nprofessional license or permit, shall be confidential and not subject to\ndisclosure at the request of any person, except upon the order of a\ncourt in a pending action or proceeding. The provisions of this\nsubdivision shall not apply to documents introduced in evidence at a\nhearing held pursuant to this chapter and shall not prevent the\ndepartment from sharing information concerning investigations with other\nduly authorized public agencies responsible for professional regulation\nor criminal prosecution.\n 9. A disciplinary proceeding under subdivision three or four of this\nsection shall be treated in the same manner as an action or proceeding\nin supreme court for the purpose of any claim by counsel of actual\nengagement.\n