Amd SS230 & 2995-a, Pub Health L; amd SS6530 & 6511, Ed L; amd Part A S32, Chap 58 of 2008
Relates to competency exams, service of charges, petitions to modify or vacate orders, profiling requirements and modifying physician and advertising and testimony standards.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7102B
SPONSOR: Gottfried TITLE OF BILL: An act to amend the public health law and the educa-
tion law, in relation to enforcing compliance with clinical competency
exams, simplifying service of charges, limiting petitions to modify or
vacate orders, profiling requirements of self-insured physicians, modi-
fying physician and advertising and testimonial standards; to amend the
public health law, in relation to expanding the applicability of penal-
ties for willful violations of the commissioner of health's orders; and
to amend chapter 58 of the laws of 2008, amending the elder law and
other laws relating to reimbursement to particular provider pharmacies
and prescription drug coverage, in relation to the effectiveness of
certain provisions thereof
PURPOSE OR GENERAL IDEA OF BILL: This bill would enhance patient safe-
ty and bring efficiencies to the disciplinary process for physicians,
physician assistants and specialist assistants by: (1) strengthening
enforcement of clinical competency remediation recommendations; (2)
permitting notice of disciplinary proceedings conducted by the Office of
Professional Conduct (OPMC) of the Department of Health (DOH) to be
served by mail; (3) requiring written specification in cases when the
Board of Regents (Regents) determines to allow reinstatement of a physi-
cian if contrary to OPMC's recommendation; and (4) clarifying standards
for advertising by medical professionals.
SUMMARY OF SPECIFIC PROVISIONS: Section 1 of the bill would add new
Public Health Law (PHL) § 230(7)(d) to allow a Committee on Professional
Conduct (Committee) to order compliance with the remediation recommenda-
tions of a clinical competency examination pursuant to PHL § 230(7)(c).
The Committee could also refer the case to the Director of OPMC for
presentation to an investigative committee if it determines that there
are no reasonable conditions or limitations that could be imposed upon
the licensee that would sufficiently mitigate the licensee's incompe-
tence.
Section 2 of the bill would amend Education Law § 6530(5) to provide
that to have been found incompetent as the result of an examination
conducted under PHL § 230(7)(c) is "professional misconduct" if a
Committee determines that there is no practical remediation for such
incompetence.
Section 3 of the bill would amend Education Law § 6530(15) to expand the
definition of professional misconduct to include failure to comply with
remediation recommendations made as the result of an examination
conducted under PHL § 230(7)(c) and ordered by a Committee.
Section 4 of the bill would amend PHL § 230(10)(d)(i) to provide that
the State Board for Professional Medical Conduct (Board) may serve a
copy of the charges and the notice of hearing by means other than
personal service:
Section 5 of the bill would amend PHL g 230(10) (q) to eliminate the
opportunity to seek restoration of a license by OPMC when an application
for restoration can be made to Regents.
Section 6 of the bill would amend Education Law § 6511 to provide that
if the Regents, in considering an application to restore a license that
had been revoked, does not act consistent with the recommendation of
OPMC, its decision must set forth its justification for departing from
such recommendation.
Section 7 of the bill would amend PHL § 2995-a(3) to make a technical
correction.
Section 8 of the bill would amend Education Law § 6530(27) to make the
restrictions on advertising consistent with those currently included in
the Rules of the Board of Regents, 8 NYCRR 29.1(b)(12).
Section 9 of the hill would make the current version of PHL § 12-b(2)
permanent.
JUSTIFICATION: The Board, within the DOH, administers the disciplinary
process for physicians, physician assistants and specialist assistants.
OPMC investigates allegations of professional. misconduct, and an
Investigation Committee of the Board determines if charges should be
issued. If so, the Board will issue a notice of charges. The licensee is
entitled to a hearing before a Committee on Professional Conduct and an
administrative review officer, who issues findings of fact and conclu-
sions of law and, if appropriate, imposes a penalty. The licensee may
seek administrative review from the Administrative Review Board (ARE)
and, if the ARB affirms the administrative review officer's determi-
nation, to judicial review. This bill would institute several refine-
ments.
First, while the Board currently is authorized to order a licensee to
undergo a clinical competency examination, it cannot compel remediation
in deficit areas or to take action if non, remediable incompetence is
found. The bill would authorize a Committee, after affording a licensee
notice and an opportunity to be heard, to order compliance with the
remediation recommendations of a clinical competency examination. In
addition, upon determining that there are no -reasonable conditions or
limitations that could be imposed upon a licensee that would sufficient-
ly mitigate the licensee's incompetence, the bill would authorize the
Committee to refer the case to the Director of OPMC for presentation to
an investigative committee. This is necessary to allow the Board to
address the licensee's incompetence and protect the patient public from
those who are discovered to be incompetent yet refuse or are not capable
of remediation.
Second, OPMC must attempt personal service of a copy of misconduct
charges and the notice of hearing before it can serve process by mail.
By adding alternative methods of service in addition to personal
service, the expenditure of funds and use of staff resources would be
reduced. Additionally, in many instances, licensees likely would receive
notice sooner.
Third, the bill would allow a licensee to seek restoration of a license
by OPMC until such time as he or she is able to petition the Regents for
the restoration. -Because licensees would still have an avenue available
to seek restoration, this proposal would have minimal impact to them.
Additionally, this bill would enhance patient protection by requiring
the Board of Regents to provide a written justification for departing
from an OPMC recommendation relating to an individual's application for
restoration of a license.
Finally, the bill revises Education Law § 6530(27), consistent with SED
regulations, to provide that testimonials, demonstrations, dramatiza-
tions or other portrayals of professional practice in advertising may be
used if the patient authorizes the portrayal in writing, there is appro-
priate disclosure to avoid misleading the audience as to the patient's
identity, reasonable disclaimers are included, and testimonials may not
be fictional. This amendment is consistent with the 2010 Second Circuit
decision in Alexander v. Cahill, 5981-7.3d 79 (2d Cir. 2010), cert.
denied, 131 S. Ct. 820 (2010). In that case, the court affirmed the
invalidation of limitations on endorsements and testimonials in attorney
advertising which constituted commercial speech protected under the
First Amendment.
PRIOR LEGISLATIVE HISTORY: The proposed amendments to Education Law
6530(27) were included as part of legislation proposed in 2008, but were
not enacted. The remaining proposals are new.
FISCAL IMPLICATIONS: This bill would have no fiscal impact to the
State,except that the proposed amendments relating to service by mail is
likely to lead to savings. DOH spent $48,000 in 2010-11 on service of
process, and estimates that the proposed amendments would reduce this
amount between 60 and 80 percent.
EFFECTIVE DATE: This bill would take effect 60 days after enactment
except §§ 7, and 9, would take effect immediately.
