§ 6530. Definitions of professional misconduct. Each of the following\nis professional misconduct, and any licensee found guilty of such\nmisconduct under the procedures prescribed in section two hundred thirty\nof the public health law shall be subject to penalties as prescribed in\nsection two hundred thirty-a of the public health law except that the\ncharges may be dismissed in the interest of justice:\n 1. Obtaining the license fraudulently;\n 2. Practicing the profession fraudulently or beyond its authorized\nscope;\n 3. Practicing the profession with negligence on more than one\noccasion;\n 4. Practicing the profession with gross negligence on a particular\noccasion;\n 5. Practicing the profession with incompetence on more than one\noccasion;\n 6. Practicing the profession with gross incompetence;\n 7. Practicing the profession while impaired by alcohol, drugs,\nphysical disability, or mental disability;\n 8. Being a habitual abuser of alcohol, or being dependent on or a\nhabitual user of narcotics, barbiturates, amphetamines, hallucinogens,\nor other drugs having similar effects, except for a licensee who is\nmaintained on an approved therapeutic regimen which does not impair the\nability to practice, or having a psychiatric condition which impairs the\nlicensee's ability to practice;\n 9. (a) Being convicted of committing an act constituting a crime\nunder:\n (i) New York state law or,\n (ii) federal law or,\n (iii) the law of another jurisdiction and which, if committed within\nthis state, would have constituted a crime under New York state law;\n (b) Having been found guilty of improper professional practice or\nprofessional misconduct by a duly authorized professional disciplinary\nagency of another state where the conduct upon which the finding was\nbased would, if committed in New York state, constitute professional\nmisconduct under the laws of New York state;\n (c) Having been found guilty in an adjudicatory proceeding of\nviolating a state or federal statute or regulation, pursuant to a final\ndecision or determination, and when no appeal is pending, or after\nresolution of the proceeding by stipulation or agreement, and when the\nviolation would constitute professional misconduct pursuant to this\nsection;\n (d) Having his or her license to practice medicine revoked, suspended\nor having other disciplinary action taken, or having his or her\napplication for a license refused, revoked or suspended or having\nvoluntarily or otherwise surrendered his or her license after a\ndisciplinary action was instituted by a duly authorized professional\ndisciplinary agency of another state, where the conduct resulting in the\nrevocation, suspension or other disciplinary action involving the\nlicense or refusal, revocation or suspension of an application for a\nlicense or the surrender of the license would, if committed in New York\nstate, constitute professional misconduct under the laws of New York\nstate;\n (e) Having been found by the commissioner of health to be in violation\nof article thirty-three of the public health law;\n 10. Refusing to provide professional service to a person because of\nsuch person's race, creed, color or national origin;\n 11. Permitting, aiding or abetting an unlicensed person to perform\nactivities requiring a license;\n 12. Practicing the profession while the license is suspended or\ninactive as defined in subdivision thirteen of section two hundred\nthirty of the public health law, or willfully failing to register or\nnotify the department of education of any change of name or mailing\naddress, or, if a professional service corporation, willfully failing to\ncomply with sections fifteen hundred three and fifteen hundred fourteen\nof the business corporation law or, if a university faculty practice\ncorporation wilfully failing to comply with paragraphs (b), (c) and (d)\nof section fifteen hundred three and section fifteen hundred fourteen of\nthe business corporation law;\n 13. A willful violation by a licensee of subdivision eleven of section\ntwo hundred thirty of the public health law;\n 14. A violation of section twenty-eight hundred three-d, twenty-eight\nhundred five-k or subparagraph (ii) of paragraph (h) of subdivision ten\nof section two hundred thirty of the public health law; or\n 15. Failure to comply with an order issued pursuant to subdivision\nseven, paragraph (a) of subdivision ten, and subdivision seventeen of\nsection two hundred thirty of the public health law;\n 16. A willful or grossly negligent failure to comply with substantial\nprovisions of federal, state, or local laws, rules, or regulations\ngoverning the practice of medicine;\n 17. Exercising undue influence on the patient, including the promotion\nof the sale of services, goods, appliances, or drugs in such manner as\nto exploit the patient for the financial gain of the licensee or of a\nthird party;\n 18. Directly or indirectly offering, giving, soliciting, or receiving\nor agreeing to receive, any fee or other consideration to or from a\nthird party for the referral of a patient or in connection with the\nperformance of professional services;\n 19. Permitting any person to share in the fees for professional\nservices, other than: a partner, employee, associate in a professional\nfirm or corporation, professional subcontractor or consultant authorized\nto practice medicine, or a legally authorized trainee practicing under\nthe supervision of a licensee. This prohibition shall include any\narrangement or agreement whereby the amount received in payment for\nfurnishing space, facilities, equipment or personnel services used by a\nlicensee constitutes a percentage of, or is otherwise dependent upon,\nthe income or receipts of the licensee from such practice, except as\notherwise provided by law with respect to a facility licensed pursuant\nto article twenty-eight of the public health law or article thirteen of\nthe mental hygiene law;\n 20. Conduct in the practice of medicine which evidences moral\nunfitness to practice medicine;\n 21. Willfully making or filing a false report, or failing to file a\nreport required by law or by the department of health or the education\ndepartment, or willfully impeding or obstructing such filing, or\ninducing another person to do so;\n 22. Failing to make available to a patient, upon request, copies of\ndocuments in the possession or under the control of the licensee which\nhave been prepared for and paid for by the patient or client;\n 23. Revealing of personally identifiable facts, data, or information\nobtained in a professional capacity without the prior consent of the\npatient, except as authorized or required by law;\n 24. Practicing or offering to practice beyond the scope permitted by\nlaw, or accepting and performing professional responsibilities which the\nlicensee knows or has reason to know that he or she is not competent to\nperform, or performing without adequate supervision professional\nservices which the licensee is authorized to perform only under the\nsupervision of a licensed professional, except in an emergency situation\nwhere a person's life or health is in danger;\n 25. Delegating professional responsibilities to a person when the\nlicensee delegating such responsibilities knows or has reason to know\nthat such person is not qualified, by training, by experience, or by\nlicensure, to perform them.\n 25-a. With respect to any non-emergency treatment, procedure or\nsurgery which is expected to involve local or general anesthesia,\nfailing to disclose to the patient the identities of all physicians,\nexcept medical residents in certified training programs, podiatrists and\ndentists, reasonably anticipated to be actively involved in such\ntreatment, procedure or surgery and to obtain such patient's informed\nconsent to said practitioners' participation;\n 26. Performing professional services which have not been duly\nauthorized by the patient or his or her legal representative;\n 27. Advertising or soliciting for patronage that is not in the public\ninterest. (a) Advertising or soliciting not in the public interest shall\ninclude, but not be limited to, advertising or soliciting that: (i) is\nfalse, fraudulent, deceptive, misleading, sensational, or flamboyant;\n (ii) represents intimidation or undue pressure;\n (iii) uses testimonials;\n (iv) guarantees any service;\n (v) makes any claim relating to professional services or products or\nthe costs or price therefor which cannot be substantiated by the\nlicensee, who shall have the burden of proof;\n (vi) makes claims of professional superiority which cannot be\nsubstantiated by the licensee, who shall have the burden of proof; or\n (vii) offers bonuses or inducements in any form other than a discount\nor reduction in an established fee or price for a professional service\nor product.\n (b) The following shall be deemed appropriate means of informing the\npublic of the availability of professional services: (i) informational\nadvertising not contrary to the foregoing prohibitions; and\n (ii) the advertising in a newspaper, periodical or professional\ndirectory or on radio or television of fixed prices, or a stated range\nof prices, for specified routine professional services, provided that if\nthere is an additional charge for related services which are an integral\npart of the overall service being provided by the licensee, the\nadvertisement shall so state, and provided further that the\nadvertisement indicates the period of time for which the advertised\nprices shall be in effect.\n (c)(i) All licensees placing advertisements shall maintain, or cause\nto be maintained, an exact copy of each advertisement, transcript, tape\nor video tape thereof as appropriate for the medium used, for a period\nof one year after its last appearance. This copy shall be made avail-\nable for inspection upon demand of the department of health;\n (ii) A licensee shall not compensate or give anything of value to rep-\nresentatives of the press, radio, television or other communications\nmedia in anticipation of or in return for professional publicity in a\nnews item;\n (d) No demonstrations, dramatizations or other portrayals of\nprofessional practice shall be permitted in advertising on radio or\ntelevision;\n 28. Failing to respond within thirty days to written communications\nfrom the department of health and to make available any relevant records\nwith respect to an inquiry or complaint about the licensee's\nprofessional misconduct. The period of thirty days shall commence on the\ndate when such communication was delivered personally to the licensee.\nIf the communication is sent from the department of health by registered\nor certified mail, with return receipt requested, to the address\nappearing in the last registration, the period of thirty days shall\ncommence on the date of delivery to the licensee, as indicated by the\nreturn receipt;\n 29. Violating any term of probation or condition or limitation imposed\non the licensee pursuant to section two hundred thirty of the public\nhealth law;\n 30. Abandoning or neglecting a patient under and in need of immediate\nprofessional care, without making reasonable arrangements for the\ncontinuation of such care, or abandoning a professional employment by a\ngroup practice, hospital, clinic or other health care facility, without\nreasonable notice and under circumstances which seriously impair the\ndelivery of professional care to patients or clients;\n 31. Willfully harassing, abusing, or intimidating a patient either\nphysically or verbally;\n 32. Failing to maintain a record for each patient which accurately\nreflects the evaluation and treatment of the patient, provided, however,\nthat a physician who transfers an original mammogram to a medical\ninstitution, or to a physician or health care provider of the patient,\nor to the patient directly, as otherwise provided by law, shall have no\nobligation under this section to maintain the original or a copy\nthereof. Unless otherwise provided by law, all patient records must be\nretained for at least six years. Obstetrical records and records of\nminor patients must be retained for at least six years, and until one\nyear after the minor patient reaches the age of eighteen years;\n 33. Failing to exercise appropriate supervision over persons who are\nauthorized to practice only under the supervision of the licensee;\n 34. Guaranteeing that satisfaction or a cure will result from the\nperformance of professional services;\n 35. Ordering of excessive tests, treatment, or use of treatment\nfacilities not warranted by the condition of the patient;\n 36. Claiming or using any secret or special method of treatment which\nthe licensee refused to divulge to the department of health;\n 37. Failing to wear an identifying badge, which shall be conspicuously\ndisplayed and legible, indicating the practitioner's name and\nprofessional title authorized pursuant to this chapter, while practicing\nas an employee or operator of a hospital, clinic, group practice or\nmulti-professional facility, or at a commercial establishment offering\nhealth services to the public;\n 38. Entering into an arrangement or agreement with a pharmacy for the\ncompounding and/or dispensing of coded or specially marked\nprescriptions;\n 39. With respect to all professional practices conducted under an\nassumed name, other than facilities licensed pursuant to article\ntwenty-eight of the public health law or article thirteen of the mental\nhygiene law, failing to post conspicuously at the site of such practice\nthe name and licensure field of all of the principal professional\nlicensees engaged in the practice at that site (i.e., principal\npartners, officers or principal shareholders);\n 40. Failing to provide access by qualified persons to patient\ninformation in accordance with the standards set forth in section\neighteen of the public health law as added by chapter 497 of the laws of\n1986;\n 41. Knowingly or willfully performing a complete or partial autopsy on\na deceased person without lawful authority;\n 42. Failing to comply with a signed agreement to practice medicine in\nNew York state in an area designated by the commissioner of education as\nhaving a shortage of physicians or refusing to repay medical education\ncosts in lieu of such required service, or failing to comply with any\nprovision of a written agreement with the state or any municipality\nwithin which the licensee has agreed to provide medical service, or\nrefusing to repay funds in lieu of such service as consideration of\nawards made by the state or any municipality thereof for his or her\nprofessional education in medicine, or failing to comply with any\nagreement entered into to aid his or her medical education;\n 43. Failing to complete forms or reports required for the\nreimbursement of a patient by a third party. Reasonable fees may be\ncharged for such forms or reports, but prior payment for the\nprofessional services to which such forms or reports relate may not be\nrequired as a condition for making such forms or reports available;\n 44. In the practice of psychiatry, (a) any physical contact of a\nsexual nature between licensee and patient except the use of films\nand/or other audiovisual aids with individuals or groups in the\ndevelopment of appropriate responses to overcome sexual dysfunction and\n(b) in therapy groups, activities which promote explicit physical sexual\ncontact between group members during sessions; and\n 45. In the practice of ophthalmology, failing to provide a patient,\nupon request, with the patient's prescription including the name,\naddress, and signature of the prescriber and the date of the\nprescription.\n 46. A violation of section two hundred thirty-nine of the public\nhealth law by a professional.\n 47. Failure to use scientifically accepted barrier precautions and\ninfection control practices as established by the department of health\npursuant to section two hundred thirty-a of the public health law.\n 48. A violation of section two hundred thirty-d of the public health\nlaw or the regulations of the commissioner of health enacted thereunder.\n 49. Except for good cause shown, failing to provide within one day any\nrelevant records or other information requested by the state or local\ndepartment of health with respect to an inquiry into a report of a\ncommunicable disease as defined in the state sanitary code, or HIV/AIDS.\n 50. Performing a pelvic examination or supervising the performance of\na pelvic examination in violation of subdivision seven of section\ntwenty-five hundred four of the public health law.\n