§ 230 — State board for professional medical conduct; proceedings

§ 230. State board for professional medical conduct; proceedings. 1. A\nstate board for professional medical conduct is hereby created in the\ndepartment in matters of professional misconduct as defined in sections\nsixty-five hundred thirty and sixty-five hundred thirty-one of the\neducation law. Its physician members shall be appointed by the\ncommissioner at least eighty-five percent of whom shall be from among\nnominations submitted by the medical society of the state of New York,\nthe New York state osteopathic society, the New York academy of\nmedicine, county medical societies, statewide specialty societies\nrecognized by the council of medical specialty societies, and the\nhospital association of New York state. Its lay members shall be\nappointed by the commissioner with the approval of the governor. The\nboard of regents shall also appoint twenty percent of the members of the\nboard. Not less than sixty-seven percent of the members appointed by the\nboard of regents shall be physicians. Not less than eighty-five percent\nof the physician members appointed by the board of regents shall be from\namong nominations submitted by the medical society of the state of New\nYork, the New York state osteopathic society, the New York academy of\nmedicine, county medical societies, statewide medical societies\nrecognized by the council of medical specialty societies, and the\nhospital association of New York state. Any failure to meet the\npercentage thresholds stated in this subdivision shall not be grounds\nfor invalidating any action by or on authority of the board for\nprofessional medical conduct or a committee or a member thereof. The\nboard for professional medical conduct shall consist of not fewer than\neighteen physicians licensed in the state for at least five years, two\nof whom shall be doctors of osteopathy, not fewer than two of whom shall\nbe physicians who dedicate a significant portion of their practice to\nthe use of non-conventional medical treatments who may be nominated by\nNew York state medical associations dedicated to the advancement of such\ntreatments, at least one of whom shall have expertise in palliative\ncare, and not fewer than seven lay members. An executive secretary shall\nbe appointed by the chairperson and shall be a licensed physician. Such\nexecutive secretary shall not be a member of the board, shall hold\noffice at the pleasure of, and shall have the powers and duties assigned\nand the annual salary fixed by, the chairperson. The chairperson shall\nalso assign such secretaries or other persons to the board as are\nnecessary.\n 2. Members of such board shall be appointed by the commissioner or the\nboard of regents for three year terms except that the terms of those\nfirst appointed shall be arranged so that as nearly as possible an equal\nnumber shall terminate annually. A vacancy occurring during a term shall\nbe filled by an appointment by the commissioner or the board of regents\nfor the unexpired term.\n 3. Each member of the board shall receive a certificate of\nappointment, shall before beginning his term of office file a\nconstitutional oath of office with the secretary of state, shall receive\nup to one hundred fifty dollars as prescribed by the commissioner for\neach day devoted to board work not to exceed ten thousand dollars in any\none year, and shall be reimbursed for his necessary expenses. Any member\nmay be removed from the board at the pleasure of the commissioner.\n 4. The governor shall annually designate from the members of the board\na chairperson who shall be a physician and vice-chairperson. The board\nshall meet upon call of the chairperson, and may adopt bylaws consistent\nwith this section. A quorum for the transaction of business by the board\nshall be a majority of members.\n 5. From among the members of the board two or more committees on\nprofessional conduct shall be appointed by the board chairperson.\n 6. Any committee on professional conduct appointed pursuant to the\nprovisions of this section shall consist of two physicians and one lay\nmember.\n 7. (a) The board, by its committees on professional conduct, shall\nconduct disciplinary proceedings as prescribed in this section and shall\nassist in other professional conduct matters as prescribed by the\nchairperson. In this section the term "licensee" shall mean physician,\nincluding a physician practicing under a limited permit, a medical\nresident, physician's assistant and specialist's assistant. A committee\non professional conduct, on notice to the licensee and after affording\nthe licensee, the office of professional medical conduct, and their\nattorneys an opportunity to be heard, shall have the authority to direct\na licensee to submit to a medical or psychiatric examination when the\ncommittee has reason to believe the licensee may be impaired by alcohol,\ndrugs, physical disability or mental disability. The committee, with the\nadvice of the licensee and the office of professional medical conduct,\nshall designate the physician who will conduct the examination. The\nresults of the examination shall be provided by the examining physician\nto the committee, the licensee, and the office of professional medical\nconduct. The licensee may also obtain a physician to conduct an\nexamination the results of which shall be provided to the committee and\nthe office of professional medical conduct.\n (b) A committee on professional conduct may sit as an administrative\ntribunal for the purpose of issuing an order authorizing the office of\nprofessional medical conduct to obtain medical records or other\nprotected health information pertaining to the licensee's physical or\nmental condition when the committee has reason to believe that the\nlicensee may be impaired by alcohol, drugs, physical disability or\nmental disability and that the records or information may be relevant to\nthe alleged impairment or that information regarding the licensee's\nmedical condition may be relevant to an inquiry into a report of a\ncommunicable disease, as defined by the state sanitary code or HIV/AIDS.\nNo such order shall be issued except on notice to the licensee and after\naffording the licensee and the office of professional medical conduct an\nopportunity to be heard.\n (c) A committee on professional conduct, on notice to the licensee and\nafter affording the licensee and the office of professional medical\nconduct an opportunity to be heard, shall have the authority to direct a\nlicensee to submit to a clinical competency examination when the\ncommittee has reason to believe that the licensee has practiced with\nincompetence, generally in his or her medical practice or in a specific\narea of his or her medical practice. The committee, with the advice of\nthe licensee and the office of professional medical conduct, shall\ndesignate the facility or institution to conduct the clinical competency\nexamination. The results of the clinical competency examination shall be\nprovided by the facility or institution to the committee, the licensee\nand the office of professional medical conduct. The licensee may also\nobtain an accredited facility or institution to conduct a clinical\ncompetency examination, the results of which shall be provided to the\ncommittee and the office of professional medical conduct.\n 8. Notwithstanding any other provision of law, no member of a\ncommittee on professional conduct nor an employee of the board shall be\nliable in damages to any person for any action taken or recommendation\nmade by him within the scope of his function as a member of such\ncommittee or employee provided that (a) such member or employee has\ntaken action or made recommendations within the scope of his function\nand without malice, and (b) in the reasonable belief after reasonable\ninvestigation that the act or recommendation was warranted, based upon\nthe facts disclosed.\n 9. Notwithstanding any other provisions of law, neither the\nproceedings nor the records of any such committee shall be subject to\ndisclosure under article thirty-one of the civil practice law and rules\nexcept as hereinafter provided. No person in attendance at a meeting of\nany such committee shall be required to testify as to what transpired\nthereat. The prohibition relating to discovery of testimony shall not\napply to the statements made by any person in attendance at such a\nmeeting who is a party to an action or proceeding the subject matter of\nwhich was reviewed at such meeting.\n 9-a. At any time, if the board for professional medical conduct or the\noffice of professional medical conduct determines that there is a\nreasonable belief that an act or omission that constitutes a crime under\nthe law of the state of New York, any other state, or the United States\nhas been committed by the licensee, the board for professional medical\nconduct or office of professional medical conduct shall notify the\nappropriate law enforcement official or authority except when the act or\nomission constitutes legally protected health activity, as defined by\nsection 570.17 of the criminal procedure law.\n 9-b. Neither the board for professional medical conduct nor the office\nof professional medical conduct shall charge a licensee with misconduct\nas defined in sections sixty-five hundred thirty and sixty-five hundred\nthirty-one of the education law, or cause a report made to the director\nof such office to be investigated beyond a preliminary review as set\nforth in clause (A) of subparagraph (i) of paragraph (a) of subdivision\nten of this section, where such report is determined to be based solely\nupon the recommendation or provision of a treatment modality to a\nparticular patient by such licensee that is not universally accepted by\nthe medical profession, including but not limited to, varying modalities\nused in the treatment of Lyme disease and other tick-borne diseases.\nWhen a licensee, acting in accordance with paragraph e of subdivision\nfour of section sixty-five hundred twenty-seven of the education law,\nrecommends or provides a treatment modality that effectively treats\nhuman disease, pain, injury, deformity or physical condition for which\nthe licensee is treating a patient, the recommendation or provision of\nthat modality to a particular patient shall not, by itself, constitute\nprofessional misconduct. The licensee shall otherwise abide by all other\napplicable professional requirements.\n 9-c. (a) Neither the board for professional medical conduct nor the\noffice of professional medical conduct shall charge a licensee, acting\nwithin their scope of practice, with misconduct as defined in sections\nsixty-five hundred thirty and sixty-five hundred thirty-one of the\neducation law, or cause a report made to the director of such office to\nbe investigated beyond a preliminary review as set forth in clause (A)\nof subparagraph (i) of paragraph (a) of subdivision ten of this section,\nwhere such report is determined to be based solely upon any legally\nprotected health activity, as defined by section 570.17 of the criminal\nprocedure law.\n (b) When a licensee, acting within their scope of practice, and in\naccordance with paragraph e of subdivision four of section sixty-five\nhundred twenty-seven of the education law, engages in legally protected\nhealth activity, as defined by section 570.17 of the criminal procedure\nlaw, such legally protected activity shall not, by itself, constitute\nprofessional misconduct. The licensee shall otherwise abide by all other\napplicable professional requirements.\n 10. Professional misconduct proceedings shall consist of:\n * (a) Investigation. (i) (A) The board for professional medical\nconduct, by the director of the office of professional medical conduct,\nmay investigate on its own any suspected professional misconduct, and\nshall investigate each complaint received regardless of the source. By\nthe conclusion of a preliminary review, including an internal clinical\nreview, the director shall determine if a report is based solely upon\nthe recommendation or provision of a treatment modality by a licensee\nthat is not universally accepted by the medical profession, including\nbut not limited to varying modalities used in the treatment of Lyme\ndisease or other tick-borne diseases. Upon a determination by the\ndirector that a report is based solely upon the provision of a treatment\nmodality that is not universally accepted, no further review shall be\nconducted and no charges shall be brought. Nothing in this section shall\npreclude the director from making such a determination earlier in, or\nsubsequent to, a preliminary review. (B) The director of the office of\nprofessional medical conduct shall cause a preliminary review of every\nreport made to the department pursuant to section twenty-eight hundred\nthree-e as added by chapter eight hundred sixty-six of the laws of\nnineteen hundred eighty, sections twenty-eight hundred five-l and\nforty-four hundred five-b of this chapter, and section three hundred\nfifteen of the insurance law, to determine if such report reasonably\nappears to reflect physician conduct warranting further investigation\npursuant to this subparagraph.\n (i-a) The director shall, in addition to the determination required by\nclause (A) of subparagraph (i) of this paragraph, determine if a report\nis based solely upon conduct which is otherwise permissible pursuant to\nsection sixty-five hundred thirty-one-b of the education law and\nsubdivision nine-c of this section, and upon a determination by the\ndirector that a report is based solely upon such permissible conduct, no\nfurther review shall be conducted and no charges shall be brought.\nNothing in this section shall preclude the director from making such a\ndetermination earlier in, or subsequent to, a preliminary review.\n (ii) If the investigation of cases referred to an investigation\ncommittee involves issues of clinical practice, medical experts, shall\nbe consulted. Experts may be made available by the state medical society\nof the state of New York, by county medical societies and specialty\nsocieties, and by New York state medical associations dedicated to the\nadvancement of non-conventional medical treatments. Any information\nobtained by medical experts in consultations, including the names of\nlicensees or patients, shall be confidential and shall not be disclosed\nexcept as otherwise authorized or required by law.\n (iii) In the investigation of cases referred to an investigation\ncommittee, the licensee being investigated shall have an opportunity to\nbe interviewed by the office of professional medical conduct in order to\nprovide an explanation of the issues under investigation. Providing an\nopportunity for such an interview shall be a condition precedent to the\nconvening of an investigation committee on professional misconduct of\nthe board for professional medical conduct.\n (A) At least twenty days before the interview, except as otherwise set\nforth herein, the licensee under investigation shall be given written\nnotice of: (1) a description of the conduct that is the subject of the\ninvestigation; (2) the issues relating to the conduct that have been\nidentified at the time of the notice; (3) the time frame of the conduct\nunder investigation; (4) the identity of each patient whose contact with\nor care by the licensee is believed to be relevant to the investigation;\nand (5) the fact that the licensee may be represented by counsel and may\nbe accompanied by a stenographer to transcribe the proceeding. All costs\nof transcription shall be paid by the licensee and a copy shall be\nprovided to the department by the licensee within thirty days of the\ninterview. The notice required by this subparagraph may be given less\nthan twenty days before an interview in any case where the office of\nprofessional medical conduct anticipates that the commissioner will take\nsummary action under subdivision twelve of this section, provided that\nthe notice is given within a reasonable amount of time prior to the\ninterview and advises of the possible summary action.\n (B) Within thirty days following the interview or, in a case where a\nstenographer was present at the interview, within fifteen days after the\noffice of professional medical conduct receives the transcript of the\ninterview, whichever is later, the licensee shall be provided with a\ncopy of the report of the interviewer. In addition, the licensee shall\npromptly be given written notice of issues identified subsequent to the\ninterview. The licensee may submit written comments or expert opinion or\nmedical or scientific literature that is directly relevant to the issues\nthat have been identified by the office of professional medical conduct\nto the office of professional medical conduct at any time.\n (C) If the director determines that the matter shall be submitted to\nan investigation committee, an investigation committee shall be convened\nwithin ninety days of any interview of the licensee. The director shall\npresent the investigation committee with relevant documentation\nincluding, but not limited to: (1) a copy of the original complaint; (2)\nthe report of the interviewer and the stenographic record if one was\ntaken; (3) the report of any medical or scientific expert; (4) copies of\nreports of any patient record reviews; and (5) the licensee's\nsubmissions.\n (D) If the director determines to close an investigation following an\ninterview without presentation to an investigation committee, the office\nof professional medical conduct shall notify the licensee in writing.\n (iv) If the director of the office of professional medical conduct,\nafter obtaining the concurrence of a majority of an investigation\ncommittee, and after consultation with the executive secretary,\ndetermines that a hearing is warranted the director shall, within\nfifteen days thereafter, direct counsel to prepare the charges. If the\ninvestigation committee is unanimous in its concurrence that a hearing\nis warranted, the charges shall be made public under paragraph (d) of\nthis subdivision. If the investigation committee is not unanimous in its\nconcurrence that a hearing is warranted, the members of such committee\nshall vote on whether the charges should be made public, and if all of\nthe committee members vote in favor of publication, the charges shall be\nmade public under paragraph (d) of this subdivision. If the director\ndetermines after consultation with an investigation committee that: (A)\nevidence exists of a single incident of negligence or incompetence, a\npattern of inappropriate prescribing or medical practice, or impairment\nby drugs, alcohol, physical or mental disability; (B) a recommendation\nwas made by a county medical society or the medical society of the state\nof New York that warrants further review; or (C) the facts underlying a\nverdict in a medical malpractice action warrant further review, the\ndirector, in addition to the authority set forth in this section, shall\nbe authorized to conduct a comprehensive review of patient records of\nthe licensee and such office records of the licensee as are related to\nsaid determination. The licensee shall cooperate with the investigation\nand willful failure to cooperate in a substantial or material respect\nmay result in an enforcement proceeding pursuant to subparagraph (ii) of\nparagraph (o) of this subdivision. If there is a question of alcoholism,\nalcohol abuse, drug abuse or mental illness, the director may refer the\nmatter to a committee, as referred to in subparagraph (ii) of paragraph\n(c) of subdivision eleven of this section.\n (v) The files of the office of professional medical conduct relating\nto the investigation of possible instances of professional misconduct\nshall be confidential and not subject to disclosure at the request of\nany person, except as provided by law in a pending disciplinary action\nor proceeding. The provisions of this paragraph shall not prevent the\noffice from sharing information concerning investigations within the\ndepartment and, pursuant to subpoena, with other duly authorized public\nagencies responsible for professional regulation or criminal\nprosecution. Nothing in this subparagraph shall affect the duties of\nnotification set forth in subdivision nine-a of this section or prevent\nthe publication of charges or of the findings, conclusions,\ndeterminations, or order of a hearing committee pursuant to paragraphs\n(d) or (g) of this subdivision. In addition, the commissioner may\ndisclose the information when, in his or her professional judgment,\ndisclosure of such information would avert or minimize a public health\nthreat. Any such disclosure shall not affect the confidentiality of\nother information in the files of the office of professional medical\nconduct related to the investigation.\n (vi) The office of professional medical conduct, acting under this\nsection, may have access to the criminal history record of any licensee\ngoverned by the provisions of this section maintained by the division of\ncriminal justice services pursuant to subdivision six of section eight\nhundred thirty-seven of the executive law.\n (vii) The director of the office of professional medical conduct, in\nconsultation with the patient safety center, shall cause a review on a\ncontinuous basis of medical malpractice claim and disposition\ninformation reported to the commissioner under section three hundred\nfifteen of the insurance law, for the purpose of identifying potential\nmisconduct. The office shall commence a misconduct investigation if\npotential misconduct is identified as a result of such review, which\nshall be based on criteria such as disposition frequency, disposition\ntype including judgment and settlement, disposition award amount,\ngeographic region, specialty, or other factors as appropriate in\nidentifying potential misconduct.\n * NB Effective until July 1, 2028\n * (a) Investigation. The board for professional medical conduct, by a\ncommittee on professional conduct, may investigate on its own any\nsuspected professional misconduct, and shall investigate each complaint\nreceived regardless of the source. The results of the investigation\nshall be referred to the director of the office of professional medical\nconduct. If the director of the office of professional medical conduct,\nafter consultation with a professional member of the board for\nprofessional medical conduct, determines that a hearing is warranted he\nshall direct counsel to prepare the charges within fifteen days\nthereafter. If it is determined by the director that the complaint\ninvolves a question of professional expertise then such director may\nseek, and if so shall obtain, the concurrence of at least two members of\na panel of three members of the state board for professional medical\nconduct.\n * NB Effective July 1, 2028\n (b) Charges. The charges shall state the substance of the alleged\nprofessional misconduct and shall state clearly and concisely the\nmaterial facts but not the evidence by which the charges are to be\nproved.\n (c) Notice of hearing. The board shall set the time and place of the\nhearing. The notice of hearing shall state (1) the date, time and place\nof the hearing, (2) that the licensee shall file a written answer to\neach of the charges and allegations in the statement of charges no later\nthan ten days prior to the hearing, that any charge and allegation not\nso answered shall be deemed admitted and that the licensee may wish to\nseek the advice of counsel prior to filing such answer, (3) that the\nlicensee shall appear personally at the hearing and may be represented\nby counsel who shall be an attorney admitted to practice in New York\nstate, (4) that the licensee shall have the right to produce witnesses\nand evidence in his behalf, to cross-examine witnesses and examine\nevidence produced against him, and to have subpoenas issued in his\nbehalf to require the production of witnesses and evidence in manner and\nform as prescribed by the civil practice law and rules or either party\nmay issue such subpoenas in their own behalf, (5) that a stenographic\nrecord of the hearing will be made, and (6) such other information as\nmay be considered appropriate by the committee.\n (d) Service of charges and of notice of hearing. (i) A copy of the\ncharges and the notice of the hearing shall be served on the licensee\npersonally by the board at least thirty days before the hearing. If\npersonal service cannot be made after due diligence and such fact is\ncertified under oath, a copy of the charges and the notice of hearing\nshall be served by registered or certified mail to the licensee's last\nknown address by the board at least fifteen days before the hearing.\n (ii) The charges shall be made public, consistent with subparagraph\n(iv) of paragraph (a) of this subdivision, no earlier than five business\ndays after they are served, and the charges shall be accompanied by a\nstatement advising the licensee that such publication will occur;\nprovided, however, that charges may be made public immediately upon\nissuance of the commissioner's order in the case of summary action taken\npursuant to subdivision twelve of this section and no prior notification\nof such publication need be made to the licensee.\n (iii) If a hearing on the charges has not yet been conducted or if a\nhearing has been conducted but the committee has not yet issued a\ndetermination, the publication of charges by the department shall\ninclude a statement advising that the charges are only allegations which\nmay be contested by the licensee in an administrative hearing, except\nthat no such statement need be included if the licensee fails or\naffirmatively declines to contest the charges. In the event any or all\nsuch charges are dismissed, such dismissal shall be made public within\ntwo business days.\n (d-1) Disclosure of exculpatory evidence. After service of the charges\nupon the licensee, counsel for the office of professional medical\nconduct shall, as soon as practicable and on a continuing basis, provide\nthe licensee with any information or documentation in the possession of\nthe office of professional medical conduct which tends to prove the\nlicensee's innocence.\n (e) Committee hearing. The hearing shall be conducted by a committee\non professional conduct. The members of the hearing committee shall be\nappointed by the chairperson of the board who shall designate the\ncommittee chairperson. In addition to said committee members, the\ncommissioner shall designate an administrative officer, admitted to\npractice as an attorney in the state of New York, who shall have the\nauthority to rule on all motions, including motions to compel disclosure\nof information or material claimed to be protected because of privilege\nor confidentiality, procedures and other legal objections and shall\ndraft the conclusions of the hearing committee pursuant to paragraph\n(g). The administrative officer shall have the authority to rule on\nobjections to questions posed by either party or the committee members.\nThe administrative officer shall not be entitled to vote.\n (f) Conduct of hearing. All hearings must be commenced within sixty\ndays of the service of charges except that an adjournment of the initial\nhearing date may be granted by the hearing committee upon request by\neither party upon good cause shown. No adjournment shall exceed thirty\ndays. The evidence in support of the charges shall be presented by an\nattorney. The licensee shall have the rights required to be stated in\nthe notice of hearing (subparagraph (c) of this subdivision) and in\nsection four hundred one of the state administrative procedure act. The\ncommittee shall not be bound by the rules of evidence, but its\nconclusion shall be based on a preponderance of the evidence. A hearing\nwhich has been initiated shall not be discontinued because of the death\nor incapacity to serve of one member of the hearing committee. In the\nevent of a member's death or incapacity to serve on the committee, a\nmember shall be appointed immediately by the chairperson of the board.\nThe member shall affirm in writing that he or she has read and\nconsidered evidence and transcripts of the prior proceedings. The last\nhearing day must be held within one hundred twenty days of the first\nhearing day. Either party, for good cause shown, may request that the\ncommittee extend the last hearing day beyond one hundred twenty days. An\nextension requested by the licensee and granted by the committee may not\nbe used as the grounds for a proceeding brought under paragraph (j) of\nthis subdivision.\n (g) Results of hearing. The committee shall make (1) findings of fact,\n(2) conclusions concerning the charges sustained or dismissed, and (3) a\ndetermination regarding charges sustained or dismissed, and in the event\nany of the charges have been sustained, of the penalty to be imposed or\nappropriate action to be taken and the reasons for the determination.\nFor the committee to make a conclusion sustaining a charge, or\ndetermining a penalty or the appropriate action to be taken, two members\nof the committee must vote for such a conclusion or determination. The\ncommittee shall issue an order based on its determination. The\ncommittee's findings, conclusions, determinations and order shall become\npublic upon issuance. However, if the time to request a review of the\ncommittee's determination has not yet expired, or if the review has been\nrequested but no determination as a result of the review has been\nissued, such publication shall include a statement advising that the\nlicensee or the department may request a review of the committee's\ndetermination. No such statement is required if (a) the time to request\nsuch review has expired without the filing of such request by either of\nthe parties, or (b) the licensee and the department both affirmatively\ndecline to request review of the committee's determination or fail to\nperfect such review. In the event any or all such charges are dismissed,\nsuch dismissal shall be made public within two business days.\n (h) Disposition of results. (i) The findings, conclusions,\ndetermination and the reasons for the determination of the committee\nshall be served upon the licensee, the department, and any hospitals,\nprimary practice settings or health care plans required to be identified\nin publicly disseminated physician data pursuant to paragraph (j), (n),\nor (q) of subdivision one of section twenty-nine hundred ninety-five-a\nof this chapter, within sixty days of the last day of hearing. Service\nshall be either by certified mail upon the licensee at the licensee's\nlast known address and such service shall be effective upon receipt or\nseven days after mailing by certified mail whichever is earlier or by\npersonal service and such service shall be effective upon receipt. The\nlicensee shall deliver to the board the license which has been revoked,\nannulled, suspended or surrendered, together with the registration\ncertificate, within five days after receipt of the order. If the license\nor registration certificate is lost, misplaced or its whereabouts is\notherwise unknown, the licensee shall submit an affidavit to that effect\nand shall deliver such license or certificate to the board when located.\nThe director of the office shall promptly transmit a copy of the order\nto the division of professional licensing services of the state\neducation department and to each hospital at which the licensee has\nprivileges.\n (ii) When a license has been: (A) revoked or annulled without stay\npursuant to subdivision four or five of section two hundred thirty-a of\nthis title; (B) surrendered by a licensee; (C) suspended without stay\nfor more than one hundred eighty days; or (D) restricted to prohibit the\npractice of medicine or to preclude the delivery of patient care, the\nlicensee whose license has been so revoked, surrendered, annulled\nwithout stay, suspended without stay for more than one hundred eighty\ndays, or restricted shall, within fifteen days of the effective date of\nthe order:\n (1) notify his or her patients, of the cessation or limitation of the\nlicensee's medical practice; the names of other physicians or health\ncare practitioners who have agreed to assume responsibility for the\npatient's care; that the patient should contact one of those named\nphysicians or health care practitioners, or another physician or health\ncare practitioner of the patient's choice, to determine the health care\nplans, as defined in sections four thousand nine hundred of the\ninsurance law and forty-nine hundred of this chapter, in which the\nphysician or health care practitioner participates and the polices and\nprocedures of such physician or other health care practitioner; that the\npatient should notify the licensee of the name of the physician or other\nhealth care practitioner to whom the patient's medical records should be\ntransferred; and that the licensee will retain, and remain responsible\nfor the maintenance of the patient's medical records until the patient\nprovides notice that the records shall be transferred directly to the\npatient, consistent with the provisions of sections seventeen and\neighteen of this chapter, or to another practitioner of the patient's\nchoice. The licensee shall also notify each health care plan with which\nthe licensee contracts or is employed, and each hospital where he or she\nhas privileges in writing of the cessation or limitation of the\nlicensee's medical practice. Within forty-five days of the effective\ndate of the order, the licensee shall provide the office of professional\nmedical conduct with proof, in a form acceptable to the director of the\noffice of professional medical conduct, that all patients and hospitals\nhave been notified of the cessation or limitation of the licensee's\nmedical practice.\n (2) make arrangements for the transfer and maintenance of the medical\nrecords of his or her former patients. Records shall be either\ntransferred to the licensee's former patients consistent with the\nprovisions of sections seventeen and eighteen of this chapter or to\nanother physician or health care practitioner as provided in clause (1)\nof this subparagraph who shall expressly assume responsibility for their\ncare and maintenance and for providing access to such records, as\nprovided in subdivisions twenty-two and thirty-two of section sixty-five\nhundred thirty of the education law, the rules of the board of regents\nor the regulations of the commissioner of education and sections\nseventeen and eighteen of this chapter. When records are not transferred\nto the licensee's former patients or to another physician or health care\npractitioner, the licensee whose license has been revoked, annulled,\nsurrendered, suspended or restricted shall remain responsible for the\ncare and maintenance of the medical records of his or her former\npatients and shall be subject to additional proceedings pursuant to\nsubdivisions twenty-two, thirty-two and forty of section sixty-five\nhundred thirty of the education law in the event that the licensee fails\nto maintain those medical records or fails to make them available to a\nformer patient.\n (3) notify the office of professional medical conduct of the name,\naddress, and telephone number of any physician or other health care\npractitioner who has agreed to accept responsibility for storing and\nmaintaining these medical records.\n (4) in the event that the licensee whose license has been revoked,\nannulled, surrendered or restricted to prohibit the practice of medicine\nor to preclude the delivery of patient care holds a federal Drug\nEnforcement Agency (DEA) certificate, advise the DEA in writing of the\nlicensure action, surrender his or her DEA controlled substance\nprivileges to the DEA, and surrender any unused DEA #222 U.S. Official\nOrder Forms, Schedules 1 and 2 to the DEA.\n (5) for licensees whose license has been revoked, annulled,\nsurrendered or restricted to prohibit the practice of medicine or to\npreclude the delivery of patient care, return any unused New York state\nofficial prescription forms to the bureau of narcotics enforcement of\nthe department. The licensee shall cause all other prescription pads\nbearing the licensee's name to be destroyed. If no other licensee is\nproviding services at the licensee's practice location, all medications\nshall be properly disposed.\n (6) for licensees whose license to practice has been revoked,\nannulled, surrendered or restricted to prohibit the practice of medicine\nor to preclude the delivery of patient care, refrain from new\nadvertising and make reasonable efforts to cease current advertising by\nwhich his or her eligibility to practice medicine is represented.\n In addition to any other penalty provided for in law, failure to\ncomply with the requirements of this subparagraph shall constitute\nmisconduct that may be prosecuted pursuant to this section and which may\nsubject the licensee to the imposition of additional penalties pursuant\nto section two hundred thirty-a of this title.\n (i) The determinations of a committee on professional conduct of the\nstate board for professional medical conduct may be reviewed by the\nadministrative review board for professional medical conduct.\n (j) Time limitations. Failure to comply with a provision of this\nsubdivision requiring that a specified action shall be taken within a\nspecified period of time shall be grounds for a proceeding pursuant to\narticle seventy-eight of the civil practice law and rules for an order\nstaying the hearing or dismissing the charges or any part thereof or any\nother appropriate relief. Such proceeding shall be returnable before the\nsupreme court of Albany county or New York county. The respondent in\nsuch proceeding shall have the initial burden to explain the reasons for\nthe failure to comply with a provision of this subdivision requiring\nthat a specified action to be taken within a specified period of time.\nThe court shall not stay the hearing or dismiss the charges or grant any\nother relief unless it determines that failure to comply was not caused\nby the article seventy-eight petitioner and has caused substantial\nprejudice to the article seventy-eight petitioner.\n (k) The executive secretary of the board with the specific approval of\na committee on professional conduct of the board shall have the power to\nissue subpoenas requiring persons to appear before the board and be\nexamined with reference to a matter within the scope of the inquiry or\nthe investigation being conducted by the board and produce books,\npapers, records or documents pertaining thereto.\n (l) The board or its representatives may examine and obtain records of\npatients in any investigation or proceeding by the board acting within\nthe scope of its authorization. Unless expressly waived by the patient,\nany information so obtained shall be confidential and shall not be\ndisclosed except to the extent necessary for the proper function of the\nboard and the name of the patient may not be disclosed by the board or\nits employees at any stage of the proceedings unless the patient has\nexpressly consented. Any other use or dissemination by any person by any\nmeans, unless pursuant to a valid court order or otherwise provided by\nlaw, is prohibited.\n (m) Expedited procedures. (i) Violations. Violations involving\nprofessional misconduct of a minor or technical nature may be resolved\nby expedited procedures as provided in subparagraph (ii) or (iii) of\nthis paragraph. For purposes of this paragraph violations of a minor or\ntechnical nature shall include, but shall not be limited to, isolated\ninstances of violations concerning professional advertising or record\nkeeping, and other isolated violations which do not directly affect or\nimpair the public health, welfare or safety.\n (ii) Administrative warning and consultation. If the director of the\noffice of professional medical conduct, after obtaining the concurrence\nof a majority of a committee on professional conduct, and after\nconsultation with the executive secretary, determines that there is\nsubstantial evidence of professional misconduct of a minor or technical\nnature or of substandard medical practice which does not constitute\nprofessional misconduct, the director may issue an administrative\nwarning and/or provide for consultation with a panel of one or more\nexperts, chosen by the director. Panels of one or more experts may\ninclude, but shall not be limited to, a peer review committee of a\ncounty medical society or a specialty board. Administrative warnings and\nconsultations 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 (iii) Violation committee proceeding. If the director determines,\nafter obtaining the concurrence of a majority of a committee on\nprofessional conduct, and after consultation with the executive\nsecretary, that there is substantial evidence of a violation and that\nthe violation is of a nature justifying a penalty as specified in this\nsubparagraph the department may prepare and serve charges, either by\npersonal service or by certified mail, return receipt requested. A\nviolation committee proceeding shall be commenced within three years of\nthe alleged professional misconduct. Such charges shall include a\nstatement that the matter shall be referred to a committee on\nprofessional conduct, which shall act as a violations committee for\ndetermination. The violations committee shall be appointed by the\nchairperson of the state board. Paragraph (c) of subdivision ten of\nthis section shall apply to the proceeding. A stenographic record of the\nhearing shall be made. The evidence in support of the charges shall be\npresented by an attorney and the licensee shall be afforded an\nopportunity to be heard and to present evidence in his behalf. Such\nviolations committee may issue a censure and reprimand, may require the\nlicensee to perform up to twenty-five hours of public service in a\nfacility licensed pursuant to article twenty-eight of this chapter in a\nmanner and at a time and place directed by the board, and in addition,\nor in the alternative, may impose a fine not to exceed five hundred\ndollars for each specification of minor or technical misconduct. The\nviolations committee may alternatively dismiss the charges in the\ninterest of justice. The order shall be served either by certified mail\nto the licensee's last known address and such services shall be\neffective upon receipt or seven days after mailing by certified mail\nwhichever is earlier or by personal service and such service shall be\neffective upon receipt. The order may be reviewed by the administrative\nappeals board for professional medical conduct.\n (n) Engagement. A proceeding under this section shall be treated in\nthe same manner as an action or proceeding in supreme court for the\npurpose of any claim by counsel of actual engagement.\n (o) Orders for review of medical records. Where the director has\nissued an order for a comprehensive medical review of patient records\nand office records pursuant to subparagraph four of paragraph (a) of\nthis subdivision and the licensee has refused to comply with the\ndirector's order, the director may apply to a justice of the supreme\ncourt, in writing, on notice to the licensee, for a court order to\ncompel compliance with the director's order. The court shall not grant\nthe application unless it finds that (i) there was a reasonable basis\nfor issuance of the director's order and (ii) there is reasonable cause\nto believe that the records sought are relevant to the director's order.\nThe court may deny the application or grant the application in whole or\nin part.\n (p) Convictions of crimes or administrative violations. In cases of\nprofessional misconduct based solely upon a violation of subdivision\nnine of section sixty-five hundred thirty of the education law, the\ndirector may direct that charges be prepared and served and may refer\nthe matter to a committee on professional conduct for its review and\nreport of findings, conclusions as to guilt, and determination. In such\ncases, the notice of hearing shall state that the licensee shall file a\nwritten answer to each of the charges and allegations in the statement\nof charges no later than ten days prior to the hearing, and that any\ncharge or allegation not so answered shall be deemed admitted, that the\nlicensee may wish to seek the advice of counsel prior to filing such\nanswer that the licensee may file a brief and affidavits with the\ncommittee on professional conduct, that the licensee may appear\npersonally before the committee on professional conduct, may be\nrepresented by counsel and may present evidence or sworn testimony in\nhis or her behalf, and the notice may contain such other information as\nmay be considered appropriate by the director. The department may also\npresent evidence or sworn testimony and file a brief at the hearing. A\nstenographic record of the hearing shall be made. Such evidence or sworn\ntestimony offered to the committee on professional conduct shall be\nstrictly limited to evidence and testimony relating to the nature and\nseverity of the penalty to be imposed upon the licensee. Where the\ncharges are based on the conviction of state law crimes in other\njurisdictions, evidence may be offered to the committee which would show\nthat the conviction would not be a crime in New York state. The\ncommittee on professional conduct may reasonably limit the number of\nwitnesses whose testimony will be received and the length of time any\nwitness will be permitted to testify. The determination of the committee\nshall be served upon the licensee and the department in accordance with\nthe provisions of paragraph (h) of this subdivision. A determination\npursuant to this subdivision may be reviewed by the administrative\nreview board for professional medical conduct.\n (q) At any time subsequent to the final conclusion of a professional\nmisconduct proceeding against a licensee, whether upon the determination\nand order of a hearing committee issued pursuant to paragraph (h) of\nthis subdivision or upon the determination and order of the\nadministrative review board issued pursuant to paragraph (d) of\nsubdivision four of section two hundred thirty-c of this title, the\nlicensee may file a petition with the director, requesting vacatur or\nmodification of the determination and order. The director shall, after\nreviewing the matter and after consulting with department counsel,\ndetermine in the reasonable exercise of his or her discretion whether\nthere is new and material evidence that was not previously available\nwhich, had it been available, would likely have led to a different\nresult, or whether circumstances have occurred subsequent to the\noriginal determination that warrant a reconsideration of the measure of\ndiscipline. Upon determining that such evidence or circumstances exist,\nthe director shall have the authority to join the licensee in an\napplication to the chairperson of the state board for professional\nmedical conduct to vacate or modify the determination and order, as the\ndirector may deem appropriate. Upon the joint application of the\nlicensee and the director, the chairperson shall have the authority to\ngrant or deny such application.\n 11. Reporting of professional misconduct:\n (a) The medical society of the state of New York, the New York state\nosteopathic society or any district osteopathic society, any statewide\nmedical specialty society or organization, and every county medical\nsociety, every person licensed pursuant to articles one hundred\nthirty-one, one hundred thirty-one-B, one hundred thirty-three, one\nhundred thirty-seven and one hundred thirty-nine of the education law,\nand the chief executive officer, the chief of the medical staff and the\nchairperson of each department of every institution which is established\npursuant to article twenty-eight of this chapter and a comprehensive\nhealth services plan pursuant to article forty-four of this chapter or\narticle forty-three of the insurance law, shall, and any other person\nmay, report to the board any information which such person, medical\nsociety, organization institution or plan has which reasonably appears\nto show that a licensee is guilty of professional misconduct as defined\nin sections sixty-five hundred thirty and sixty-five hundred thirty-one\nof the education law. Such reports shall remain confidential and shall\nnot be admitted into evidence in any administrative or judicial\nproceeding except that the board, its staff, or the members of its\ncommittees may begin investigations on the basis of such reports and may\nuse them to develop further information.\n (b) Any person, organization, institution, insurance company,\nosteopathic or medical society who reports or provides information to\nthe board in good faith, and without malice shall not be subject to an\naction for civil damages or other relief as the result of such report.\n (c) Notwithstanding the foregoing, no physician shall be responsible\nfor reporting pursuant to paragraph (a) of this subdivision with respect\nto any information discovered by such physician solely as a result of:\n (i) Participation in a properly conducted mortality and/or morbidity\nconference, departmental meeting or a medical or tissue committee\nconstituted pursuant to the by-laws of a hospital which is duly\nestablished pursuant to article twenty-eight of the public health law,\nunless the procedures of such conference, department or committee of\nsuch hospital shall have been declared to be unacceptable for the\npurpose hereof by the commissioner, and provided that the obligations of\nreporting such information when appropriate to do so shall be the\nresponsibility of the chairperson of such conference, department or\ncommittee, or\n * (ii) Participation and membership during a three year demonstration\nperiod in a physician committee of the Medical Society of the State of\nNew York or the New York State Osteopathic Society whose purpose is to\nconfront and refer to treatment physicians who are thought to be\nsuffering from alcoholism, drug abuse, or mental illness. Such\ndemonstration period shall commence on April first, nineteen hundred\neighty and terminate on May thirty-first, nineteen hundred eighty-three.\nAn additional demonstration period shall commence on June first,\nnineteen hundred eighty-three and terminate on March thirty-first,\nnineteen hundred eighty-six. An additional demonstration period shall\ncommence on April first, nineteen hundred eighty-six and terminate on\nMarch thirty-first, nineteen hundred eighty-nine. An additional\ndemonstration period shall commence April first, nineteen hundred\neighty-nine and terminate March thirty-first, nineteen hundred\nninety-two. An additional demonstration period shall commence April\nfirst, nineteen hundred ninety-two and terminate March thirty-first,\nnineteen hundred ninety-five. An additional demonstration period shall\ncommence on April first, nineteen hundred ninety-five and terminate on\nMarch thirty-first, nineteen hundred ninety-eight. An additional\ndemonstration period shall commence on April first, nineteen hundred\nninety-eight and terminate on March thirty-first, two thousand three. An\nadditional demonstration period shall commence on April first, two\nthousand three and terminate on March thirty-first, two thousand\nthirteen. An additional demonstration period shall commence April first,\ntwo thousand thirteen and terminate on March thirty-first, two thousand\neighteen. An additional demonstration period shall commence April first,\ntwo thousand eighteen and terminate on July first, two thousand\ntwenty-eight provided, however, that the commissioner may prescribe\nrequirements for the continuation of such demonstration program,\nincluding periodic reviews of such programs and submission of any\nreports and data necessary to permit such reviews. During these\nadditional periods, the provisions of this subparagraph shall also apply\nto a physician committee of a county medical society.\n * NB Expires July 1, 2028\n (d) In the event that a physician or administrator of a hospital\nestablished pursuant to article twenty-eight of this chapter shall\nreasonably be unable to determine if any information which he or she has\nis such that it does reasonably appear to show that a licensee is guilty\nof professional misconduct and therefore creates an obligation on such\nphysician or such administrator to make a report pursuant to paragraph\n(a) hereof, he or she may either:\n (i) in accordance with procedures established by the board, and\nwithout revealing the name of the licensee who he or she is considering\nmaking such a report about, request in writing the advice of the board\nas to whether or not a report should be made, and the physician or\nadministrator so requesting such advice shall then be required to comply\nwith the advice of the board. No such request for advice shall relieve\nthe requesting physician or administrator of any obligation hereunder\nunless all other material facts are revealed, other than the name of the\nlicensee in question, or\n (ii) in the case where the licensee about whom another physician is\nconsidering making such report is affiliated with a hospital which is\nduly established pursuant to article twenty-eight of this chapter, a\nphysician may elect to fulfill the obligations of paragraph (a) hereof\nby reporting such information to the appropriate executive committee or\nprofessional practices peer review committee which is duly constituted\npursuant to by-laws of such hospital, unless the peer review procedures\nof such hospital shall have been declared to be unacceptable for the\npurposes hereof by the commissioner. The physician members of such\nhospital executive committee or professional practices peer review\ncommittee shall thereupon have the responsibility of reporting such\ninformation to the board pursuant to paragraph (a) hereof, as required\nthereby, but in the event that such committee determines that a report\nshall be made to the board, the chairperson of such committee may\nfulfill the obligation of reporting on behalf of all the members of the\ncommittee, or\n (iii) in a case where the physician, about whom he or she is\nconsidering making such report, is a member of a county medical society\nor district osteopathic society, and is not affiliated with a hospital,\nbut practices his or her profession within such county or district, a\nphysician may elect to fulfill the obligations of paragraph (a) hereof\nby reporting such information to the appropriate county medical\nsociety's or district osteopathic society's professional practices\nreview committee duly constituted pursuant to the by-laws of such county\nmedical society or district osteopathic society, unless the review\nprocedures of such county medical society or district osteopathic\nsociety shall have been declared to be unacceptable for the purposes\nhereof by the commissioner. The physician members of such review\ncommittee shall thereupon have the responsibility of reporting such\ninformation to the board pursuant to paragraph (a) hereof, as required\nthereby, but in the event that such committee determines that a report\nshall be made to the board, the chairperson of such committee may\nfulfill the obligation of reporting on behalf of all the members of the\ncommittee.\n (e) Nothing contained in this subdivision shall be so construed as to\nrequire any physician to violate a physician/patient privilege and\ntherefore, no physician shall be required to report any information to\nthe board which such physician has learned solely as a result of\nrendering treatment to another physician.\n (f) A violation of this subdivision shall not be subject to the\nprovisions of sections twelve and twelve-b of this chapter.\n * (g) (i) Any physician committee of the Medical Society of the State\nof New York, the New York State Osteopathic Society or a county medical\nsociety referred to in subparagraph (ii) of paragraph (c) of this\nsubdivision shall develop procedures in consultation with, and approved\nby, the commissioner, including but not limited to the following:\n (A) The committee shall disclose at least once a month such\ninformation as the director of the office of professional medical\nconduct may deem appropriate regarding reports received, contacts or\ninvestigations made and the disposition of each report, provided however\nthat the committee shall not disclose any personally identifiable\ninformation except as provided in clause (B) or (C) of this\nsubparagraph.\n (B) The committee shall immediately report to the director the name,\nall information obtained and the results of any contact or investigation\nregarding any physician who is believed to be an imminent danger to the\npublic.\n (C) The committee shall report to the director in a timely fashion all\ninformation obtained regarding any physician who refuses to cooperate\nwith the committee, refuses to submit to treatment, or whose impairment\nis not substantially alleviated through treatment.\n (D) The committee shall inform each physician who is participating in\na program of the procedures followed in the program, of the rights and\nresponsibilities of the physician in the program and of the possible\nresults of noncompliance with the program.\n ** (ii) No member of any such committee; nor the Medical Society of\nthe State of New York, the New York State Osteopathic Society or a\ncounty medical society referred to in subparagraph (ii) of paragraph (c)\nof this subdivision that establishes a committee; nor any agent,\nservant, representative or employee that provides service to any such\ncommittee or society, shall be liable for damages to any person for any\naction taken by such committee, society, member, agent, servant,\nrepresentative or employee provided that such action was taken without\nmalice and within the scope of such individual's or entity's function in\nrelation to such committee.\n ** NB Repealed July 1, 2028\n ** (iii) The committee, in conjunction with the director of the office\nof professional medical conduct, shall develop appropriate consent forms\nand disclosure proceedings as may be necessary under any federal\nstatute, rule or regulation in order to permit the disclosure of the\ninformation as may be required under clauses (B) and (C) of subparagraph\n(i) of this paragraph.\n ** NB Repealed July 1, 2028\n **(iv) Except as provided in this paragraph and notwithstanding any\nother provision of law, neither the proceedings nor the records of any\nsuch physician committee shall be subject to disclosure under article\nthirty-one of the civil practice law and rules nor shall any member of\nany such committee nor any person in attendance at any such meeting be\nrequired to testify as to what transpired thereat.\n ** NB Repealed July 1, 2028\n * NB Expires July 1, 2028\n (h) The office of professional medical conduct shall post on its\nwebsite information on patients' rights and reporting options under this\nsubdivision regarding professional misconduct, which shall specifically\ninclude information on reporting instances of misconduct involving\nsexual harassment and assault. All physicians' practice settings shall\nconspicuously post signage, visible to their patients, directing such\npatients to the office of professional medical conduct's website for\ninformation about their rights and how to report professional\nmisconduct.\n 12. Summary action. (a) Whenever the commissioner, (i) after being\npresented with information indicating that a licensee is causing,\nengaging in or maintaining a condition or activity which has resulted in\nthe transmission or suspected transmission, or is likely to lead to the\ntransmission, of communicable disease as defined in the state sanitary\ncode or HIV/AIDS, by the state and/or a local health department and if\nin the commissioner's opinion it would be prejudicial to the interests\nof the people to delay action until an opportunity for a hearing can be\nprovided in accordance with the prehearing and hearing provisions of\nthis section; or (ii) after an investigation and a recommendation by a\ncommittee on professional conduct of the state board for professional\nmedical conduct, based upon a determination that a licensee is causing,\nengaging in or maintaining a condition or activity which in the\ncommissioner's opinion constitutes an imminent danger to the health of\nthe people, and that it therefore appears to be prejudicial to the\ninterests of the people to delay action until an opportunity for a\nhearing can be provided in accordance with the prehearing and hearing\nprovisions of this section; the commissioner may order the licensee, by\nwritten notice, to discontinue such dangerous condition or activity or\ntake certain action immediately and for a period of ninety days from the\ndate of service of the order. Within ten days from the date of service\nof the said order, the state board for professional medical conduct\nshall commence and regularly schedule such hearing proceedings as\nrequired by this section, provided, however, that the hearing shall be\ncompleted within ninety days of the date of service of the order. To the\nextent that the issue of imminent danger can be proven without the\nattorney representing the office of professional medical conduct putting\nin its entire case, the committee of the board shall first determine\nwhether by a preponderance of the evidence the licensee is causing,\nengaging in or maintaining a condition or activity which constitutes an\nimminent danger to the health of the people. The attorney representing\nthe office of professional medical conduct shall have the burden of\ngoing forward and proving by a preponderance of the evidence that the\nlicensee's condition, activity or practice constitutes an imminent\ndanger to the health of the people. The licensee shall have an\nopportunity to be heard and to present proof. When both the office and\nthe licensee have completed their cases with respect to the question of\nimminent danger, the committee shall promptly make a recommendation to\nthe commissioner on the issue of imminent danger and determine whether\nthe summary order should be left in effect, modified or vacated, and\ncontinue the hearing on all the remaining charges, if any, in accordance\nwith paragraph (f) of subdivision ten of this section. Within ten days\nof the committee's recommendation, the commissioner shall determine\nwhether or not to adopt the committee's recommendations, in whole or in\npart, and shall leave in effect, modify or vacate his summary order. The\nstate board for professional medical conduct shall make every reasonable\neffort to avoid any delay in completing and determining such\nproceedings. If, at the conclusion of the hearing, (i) the hearing\ncommittee of the board finds the licensee guilty of one or more of the\ncharges which are the basis for the summary order, (ii) the hearing\ncommittee determines that the summary order continue, and (iii) the\nninety day term of the order has not expired, the summary order shall\nremain in full force and effect until a final decision has been rendered\nby the committee or, if review is sought, by the administrative review\nboard. A summary order shall be public upon issuance.\n (b) When a licensee has pleaded or been found guilty or convicted of\ncommitting an act constituting a felony under New York state law or\nfederal law, or the law of another jurisdiction which, if committed\nwithin this state, would have constituted a felony under New York state\nlaw, or when a licensee has been charged with committing an act\nconstituting a felony under New York state or federal law or the law of\nanother jurisdiction, where the licensee's alleged conduct, which, if\ncommitted within this state, would have constituted a felony under New\nYork state law, and in the commissioner's opinion the licensee's alleged\nconduct constitutes an imminent danger to the health of the people, or\nwhen the duly authorized professional disciplinary agency of another\njurisdiction has made a finding substantially equivalent to a finding\nthat the practice of medicine by the licensee in that jurisdiction\nconstitutes an imminent danger to the health of its people, or when a\nlicensee has been disciplined by a duly authorized professional\ndisciplinary agency of another jurisdiction for acts which if committed\nin this state would have constituted the basis for summary action by the\ncommissioner pursuant to paragraph (a) of this subdivision, the\ncommissioner, after a recommendation by a committee of professional\nconduct of the state board for professional medical conduct, may order\nthe licensee, by written notice, to discontinue or refrain from\npracticing medicine in whole or in part or to take certain actions\nauthorized pursuant to this title immediately. The order of the\ncommissioner shall constitute summary action against the licensee and\nbecome public upon issuance. The summary suspension shall remain in\neffect until the final conclusion of a hearing which shall commence\nwithin ninety days of the date of service of the commissioner's order,\nend within ninety days thereafter and otherwise be held in accordance\nwith paragraph (a) of this subdivision, provided, however, that when the\ncommissioner's order is based upon a finding substantially equivalent to\na finding that the practice of medicine by the licensee in another\njurisdiction constitutes an imminent danger to the health of its people,\nthe hearing shall commence within thirty days after the disciplinary\nproceedings in that jurisdiction are finally concluded. If, at any time,\nthe felony charge is dismissed, withdrawn or reduced to a non-felony\ncharge, the commissioner's summary order shall terminate.\n 13. (a) Temporary surrender. The license and registration of a\nlicensee who may be temporarily incapacitated for the active practice of\nmedicine and whose alleged incapacity has not resulted in harm to a\npatient may be voluntarily surrendered to the board for professional\nmedical conduct, which may accept and hold such license during the\nperiod of such alleged incapacity or the board for professional medical\nconduct may accept the surrender of such license after agreement to\nconditions to be met prior to the restoration of the license. The board\nshall give prompt written notification of such surrender to the division\nof professional licensing services of the state education department,\nand to each hospital at which the licensee has privileges. The licensee\nwhose license is so surrendered shall notify all patients and all\npersons who request medical services that the licensee has temporarily\nwithdrawn from the practice of medicine. The licensure status of each\nsuch licensee shall be "inactive" and the licensee shall not be\nauthorized to practice medicine. The temporary surrender shall not be\ndeemed to be an admission of disability or of professional misconduct,\nand shall not be used as evidence of a violation of subdivision seven or\neight of section sixty-five hundred thirty of the education law unless\nthe licensee practices while the license is "inactive". Any such\npractice shall constitute a violation of subdivision twelve of section\nsixty-five hundred thirty of the education law. The surrender of a\nlicense under this subdivision shall not bar any disciplinary action\nexcept action based solely upon the provisions of subdivision seven or\neight of section sixty-five hundred thirty of the education law and\nwhere no harm to a patient has resulted, and shall not bar any civil or\ncriminal action or proceeding which might be brought without regard to\nsuch surrender. A surrendered license shall be restored upon a showing\nto the satisfaction of a committee of professional conduct of the state\nboard for professional medical conduct that the licensee is not\nincapacitated for the active practice of medicine provided, however,\nthat the committee may impose reasonable conditions on the licensee, if\nit determined that due to the nature and extent of the licensee's former\nincapacity such conditions are necessary to protect the health of the\npeople. The chairperson of the committee shall issue a restoration order\nadopting the decision of the committee. Prompt written notification of\nsuch restoration shall be given to the division of professional\nlicensing services of the state education department and to all\nhospitals which were notified of the surrender of the license.\n (b) Permanent surrender. The license and registration of a licensee\nwho may be permanently incapacitated for the active practice of\nmedicine, and whose alleged incapacity has not resulted in harm to a\npatient, may be voluntarily surrendered to the board for professional\nmedical conduct. The board shall give prompt written notification of\nsuch surrender to the division of professional licensing services of the\nstate education department, and to each hospital at which the licensee\nhas privileges. The licensee whose license is so surrendered shall\nnotify all patients and all persons who request medical services that\nthe licensee has permanently withdrawn from the practice of medicine.\nThe permanent surrender shall not be deemed to be an admission of\ndisability of or professional misconduct, and shall not be used as\nevidence of a violation of subdivision seven or eight of section\nsixty-five hundred thirty of the education law. The surrender shall not\nbar any civil or criminal action or proceeding which might be brought\nwithout regard to such surrender. There shall be no restoration of a\nlicense that has been surrendered pursuant to this subdivision.\n 14. Reports. The board shall prepare an annual report for the\nlegislature, the governor and other executive offices, the medical\nprofession, medical professional societies, consumer agencies and other\ninterested persons. Such report shall include, but shall not be limited\nto, a description and analysis of the administrative procedures and\noperations based upon a statistical summary relating to (i) discipline,\n(ii) complaint, investigation, and hearing backlog and (iii) budget.\nInformation provided for these sections shall be enumerated by regional\noffice of the office of professional medical conduct.\n * 15. The commissioner shall make grants to any physician committee as\nreferred to in subparagraph (ii) of paragraph (c) of subdivision eleven\nof this section to fund the operations of such committee during the\nauthorized demonstration period. Grants shall be awarded pursuant to an\nexpenditure plan developed by the sponsoring organization in\nconsultation with, and approved by the commissioner. No funds shall be\nmade available unless the committee's procedures have been approved by\nthe commissioner pursuant to paragraph (g) of subdivision eleven of this\nsection.\n * NB Repealed July 1, 2028\n 16. Liability. Notwithstanding any other provision of law, persons who\nassist the department as consultants, expert witnesses, administrative\nofficers or monitors in the investigation, prosecution or hearing of\nalleged professional misconduct, licensure matters, restoration\nproceedings, probation, 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 17. Monitoring. (a) A licensee may be ordered to have his or her\npractice monitored by another appropriate licensee after investigation\nand review pursuant to paragraph (a) of subdivision ten of this section,\nif there is reason to believe that the licensee is unable to practice\nmedicine with reasonable skill and safety to patients.\n (b) The director of the office of professional medical conduct, after\nconsultation with the executive secretary, shall direct counsel to\nprepare a notice detailing the reasonable cause and a copy of the notice\nshall be served on the licensee. The matter shall be presented to a\ncommittee on professional conduct by an attorney for the department and\nthe licensee shall have the opportunity to be heard by such committee\nand may be represented by counsel. A stenographic record of the\nproceeding shall be made. Service of the notice shall be in accordance\nwith the methods of service authorized by paragraph (d) of subdivision\nten of this section.\n (c) If the committee determines that reasonable cause exists as\nspecified in paragraph (a) of this subdivision and that there is\ninsufficient evidence for the matter to constitute misconduct as defined\nin sections sixty-five hundred thirty and section sixty-five hundred\nthirty-one of the education law, the committee may issue an order\ndirecting that the licensee's practice of medicine be monitored for a\nperiod specified in the order, which shall in no event exceed one year,\nby a licensee approved by the director, which may include members of\ncounty medical societies or district osteopathic societies designated by\nthe commissioner. The licensee responsible for monitoring the licensee\nshall submit regular reports to the director. If the licensee refuses to\ncooperate with the licensee responsible for monitoring or if the\nmonitoring licensee submits a report that the licensee is not practicing\nmedicine with reasonable skill and safety to his or her patients, the\ncommittee may refer the matter to the director for further proceedings\npursuant to subdivision ten of this section. An order pursuant to this\nparagraph shall be kept confidential and shall not be subject to\ndiscovery or subpoena, unless the licensee refuses to comply with the\norder.\n (d) A licensee may not seek the appointment of a monitor pursuant to\nthis subdivision in lieu of an order issued pursuant to subdivision\nseven of this section or a disciplinary proceeding pursuant to\nsubdivision ten or twelve of this section.\n 18. (a) The director shall have the authority to monitor physicians,\nphysician's assistants and specialist's assistants who have been placed\non probation pursuant to a determination of professional misconduct by\nthe board. During such period of probation, the director, or his or her\ndesignee, as provided in the order of the board, and after consultation\nwith the executive secretary, (i) may review the professional\nperformance of the licensee by randomly selecting office records,\npatient records and hospital charts, (ii) may require periodic visits by\nthe licensee to a member of the state board for professional medical\nconduct or an employee of the office of professional medical conduct,\n(iii) may require the licensee to obtain an appropriate monitor,\napproved by the director, to monitor the licensee's practice, (iv) may\nrequire an audit of the licensee's billings for services rendered during\nprobation, (v) may require the licensee to submit on a random basis to\ntests for the presence of alcohol or drugs, (vi) may require the\nlicensee to obtain additional training prior to completion of the\nprobation, (vii) may require the licensee to work in a supervised\nsetting, (viii) may require, as a condition of the licensee's continued\npractice, that the licensee undergo therapy and/or treatment approved\nand monitored by the director, (ix) may require that the licensee comply\nwith the requirements of the penalty imposed, and (x) may impose upon\nthe licensee such additional requirements as reasonably relate to the\nmisconduct found or are necessary to protect the health of the people\npursuant to regulation. The director is authorized to delegate some or\nall of the foregoing responsibilities to designated county medical\nsocieties and district osteopathic societies.\n (b) Any health care provider licensed pursuant to this chapter or the\neducation law, hospital licensed pursuant to article twenty-eight of\nthis chapter or medical school that participates in a monitoring or\nremediation program pursuant to this subdivision and subdivision\nseventeen of this section shall not be liable for the negligence of the\nmonitored licensee in providing medical care pursuant to a monitoring\nprogram. However, this paragraph does not diminish the participating\nprovider's, hospital's or school's liability for failure to exercise\nreasonable care in properly carrying out its responsibilities under the\nprogram. The monitored licensee shall be required to maintain medical\nmalpractice insurance coverage with limits no less than two million\ndollars per occurrence and six million dollars per policy year.\n 19. Upon receipt of information that indicates a licensee may be in\nviolation of the terms or conditions of probation, the director of the\noffice of professional medical conduct shall conduct an investigation.\nIf the director determines that a licensee may have violated probation,\nthe director shall give notice by letter to the licensee of the facts\nforming the basis of the alleged violation of probation by the licensee,\nthat the licensee has a right to a hearing and may be represented by\ncounsel. If the licensee does not dispute the facts forming the basis of\nthe alleged violation of probation within twenty days of the date of the\nletter, the director shall submit the matter to a committee on\nprofessional conduct for its review and determination. If within twenty\ndays of the date of the letter, the licensee disputes any of the facts\nforming the basis of the alleged violation of probation, the licensee\nshall be afforded a hearing before a committee on professional conduct\nto hear and make findings of fact, conclusions of law and a\ndetermination. A stenographic record of the hearing shall be made. The\ncommittee, after providing a licensee with an opportunity to be heard,\nshall determine whether the licensee has violated probation and shall\nimpose an appropriate penalty as defined in section two hundred thirty-a\nof this title. In determining the appropriate penalty, the committee\nshall consider both the violation of probation and the prior\nadjudication of misconduct. The chairperson of the committee shall issue\nan order adopting the decision of the committee on professional conduct.\nThe order may be reviewed by the administrative review board for\nprofessional medical conduct.\n