S T A T E O F N E W Y O R K
________________________________________________________________________
6840
2021-2022 Regular Sessions
I N S E N A T E
May 19, 2021
___________
Introduced by Sen. KAMINSKY -- read twice and ordered printed, and when
printed to be committed to the Committee on Higher Education
AN ACT to amend the education law and the public health law, in relation
to professional misconduct by physicians, physician's assistants and
specialist's assistants
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 28 of section 6530 of the education law, as
added by chapter 606 of the laws of 1991, is amended and a new subdivi-
sion 51 is added to read as follows:
28. Failing to respond within [thirty] TEN days to written communi-
cations from the department of health and to make available any relevant
records with respect to an inquiry or complaint about the licensee's
professional misconduct. The period of [thirty] TEN days shall commence
on the date when such communication was delivered personally to the
licensee. If the communication is sent from the department of health by
registered or certified mail, with return receipt requested, to the
address appearing in the last registration, the period of [thirty] TEN
days shall commence on the date of delivery to the licensee, as indi-
cated by the return receipt;
51. EXCEPT WHEN SHOWN TO BE MEDICALLY APPROPRIATE, REPEATED ACTS OF
CLEARLY EXCESSIVE OR INAPPROPRIATE PRESCRIBING, FURNISHING, DISPENSING,
OR ADMINISTERING OF CONTROLLED SUBSTANCES OR TREATMENT.
§ 2. Section 6532 of the education law, as added by chapter 606 of the
laws of 1991, is amended to read as follows:
§ 6532. Enforcement, administration and interpretation of this arti-
cle. The board [of] FOR professional medical conduct and the department
of health shall enforce, administer and interpret this article. Before
issuing a declaratory ruling pursuant to section two hundred four of the
state administrative procedure act with respect to this article, the
department of health shall fully consult with the department of educa-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11302-02-1
S. 6840 2
tion. [Neither the commissioner of education, the board of regents nor
the] THE commissioner of health may promulgate any rules or regulations
concerning this article.
§ 3. Subdivision 4 of section 206 of the public health law, as amended
by chapter 602 of the laws of 2007, is amended to read as follows:
4. The commissioner may:
(a) issue subpoenas, compel the attendance of witnesses and compel
them to testify in any matter or proceeding before [him] THE COMMISSION-
ER, and may also require a witness to attend and give testimony in a
county where [he] THE WITNESS resides or has a place of business without
the payment of any fees;
(b) REQUIRE, IN WRITING, THE PRODUCTION OF ANY AND ALL RELEVANT DOCU-
MENTS IN THE POSSESSION OR CONTROL OF AN INDIVIDUAL OR ENTITY SUBJECT TO
AN INVESTIGATION OR INQUIRY UNDER THIS CHAPTER. UNLESS A SHORTER PERIOD
IS SPECIFIED IN SUCH WRITING, AS DETERMINED FOR GOOD CAUSE BY THE
COMMISSIONER, THE REQUIRED DOCUMENTS SHALL BE PRODUCED NO LATER THAN TEN
DAYS AFTER THE DELIVERY OF THE WRITING. FAILURE BY THE SUBJECT INDIVID-
UAL OR ENTITY TO PRODUCE TO THE DEPARTMENT THE REQUIRED DOCUMENTS WITHIN
THE TEN DAY OR OTHERWISE SPECIFIED PERIOD SHALL BE A VIOLATION OR FAIL-
URE WITHIN THE MEANING OF PARAGRAPH (D) OF THIS SUBDIVISION. EACH ADDI-
TIONAL DAY OF NON-PRODUCTION SHALL BE A SEPARATE VIOLATION OR FAILURE;
(C) annul or modify an order, regulation, by-law or ordinance of a
local board of health concerning a matter which in his judgment affects
the public health beyond the territory over which such local board of
health has jurisdiction;
[(c)] (D) assess any penalty prescribed for a violation of or a fail-
ure to comply with any term or provision of this chapter or of any
lawful notice, order or regulation pursuant thereto, not exceeding two
thousand dollars for every such violation or failure, which penalty may
be assessed after a hearing or an opportunity to be heard;
[(d)] (E) assess civil penalties against a public water system which
provides water to the public for human consumption through pipes or
other constructed conveyances, as further defined in the state sanitary
code or, in the case of mass gatherings, the person who holds or
promotes the mass gathering as defined in subdivision five of section
two hundred twenty-five of this article not to exceed twenty-five thou-
sand dollars per day, for each violation of or failure to comply with
any term or provision of the state sanitary code as it relates to public
water systems that serve a population of five thousand or more persons
or any mass gatherings, which penalty may be assessed after a hearing or
an opportunity to be heard; AND
(F) SEEK TO OBTAIN A WARRANT BASED ON PROBABLE CAUSE THAT A LICENSEE
HAS COMMITTED PROFESSIONAL MISCONDUCT OR A CRIME FROM A JUDICIAL OFFICER
AUTHORIZED TO ISSUE A WARRANT. SUCH WARRANT SHALL AUTHORIZE THE COMMIS-
SIONER AND ANY PERSON AUTHORIZED BY THE COMMISSIONER TO HAVE THE AUTHOR-
ITY TO INSPECT ALL GROUNDS, ERECTIONS, VEHICLES, STRUCTURES, APARTMENTS,
BUILDINGS, PLACES AND THE CONTENTS THEREIN AND TO REMOVE ANY BOOKS,
RECORDS, PAPERS, DOCUMENTS, COMPUTERS, ELECTRONIC DEVICES AND OTHER
PHYSICAL OBJECTS.
§ 4. Subparagraphs (i) and (ii) of paragraph (d) of subdivision 10 of
section 230 of the public health law, as amended by chapter 477 of the
laws of 2008, are amended to read as follows:
(i) A copy of the charges and the notice of the hearing shall be
served on the licensee EITHER: (A) personally [by the board] at least
thirty days before the hearing[. If personal service cannot be made
after due diligence and such fact is certified under oath, a copy of the
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charges and the notice of hearing shall be served]; (B) by registered or
certified mail to the licensee's [last known] CURRENT RESIDENTIAL OR
PRACTICE address [by the board] MAILED at least fifteen days before the
hearing; (C) BY REGISTERED OR CERTIFIED MAIL TO THE LICENSEE'S MOST
RECENT MAILING ADDRESS PURSUANT TO SECTION SIXTY-FIVE HUNDRED TWO OF THE
EDUCATION LAW OR THE LICENSEE'S MOST RECENT MAILING ADDRESS ON FILE WITH
THE DEPARTMENT OF EDUCATION PURSUANT TO THE NOTIFICATION REQUIREMENT SET
FORTH IN SUBDIVISION FIVE OF SUCH SECTION, MAILED AT LEAST FORTY-FIVE
DAYS BEFORE THE HEARING; OR (D) BY FIRST CLASS MAIL TO AN ATTORNEY,
LICENSED TO PRACTICE IN THE STATE, WHO HAS APPEARED ON BEHALF OF THE
LICENSEE AND WHO HAS BEEN PROVIDED WITH WRITTEN AUTHORIZATION OF THE
LICENSEE TO ACCEPT SERVICE, MAILED AT LEAST THIRTY DAYS BEFORE THE HEAR-
ING.
(ii) The charges shall be made public, consistent with subparagraph
(iv) of paragraph (a) of this subdivision, [no earlier than five busi-
ness days] IMMEDIATELY after they are served, and the charges shall be
accompanied by a statement advising the licensee that such publication
will occur; [provided, however, that] charges may be made public imme-
diately upon issuance of the commissioner's order in the case of summary
action taken pursuant to subdivision twelve of this section and no prior
notification of such publication need be made to the licensee.
§ 5. Paragraph (a) of subdivision 12 of section 230 of the public
health law, as amended by chapter 477 of the laws of 2008, is amended to
read as follows:
(a) Whenever the commissioner, (i) after being presented with informa-
tion indicating that a licensee is causing, engaging in or maintaining a
condition or activity which has resulted in the transmission or
suspected transmission, or is likely to lead to the transmission, of
communicable disease as defined in the state sanitary code or HIV/AIDS,
by the state and/or a local health department and if in the commission-
er's opinion it would be prejudicial to the interests of the people to
delay action until an opportunity for a hearing can be provided in
accordance with the prehearing and hearing provisions of this section;
[or] (ii) AFTER BEING PRESENTED WITH INFORMATION INDICATING THAT A
LICENSEE IS ENGAGING IN EXCESSIVE OR INAPPROPRIATE PRESCRIBING, FURNISH-
ING, DISPENSING, OR ADMINISTERING OF CONTROLLED SUBSTANCES OR TREATMENT,
WHICH IN THE COMMISSIONER'S OPINION PRESENTS A RISK TO THE HEALTH OF THE
PEOPLE AND THAT THEREFORE APPEARS TO BE PREJUDICIAL TO THE INTERESTS OF
THE PEOPLE TO DELAY ACTION UNTIL AN OPPORTUNITY FOR A HEARING CAN BE
PROVIDED IN ACCORDANCE WITH THE PREHEARING AND HEARING PROVISIONS OF
THIS SECTION; OR (III) after an investigation and a recommendation by a
committee on professional conduct of the state board for professional
medical conduct, based upon a determination that a licensee is causing,
engaging in or maintaining a condition or activity which in the commis-
sioner's opinion constitutes an imminent danger to the health of the
people, and that it therefore appears to be prejudicial to the interests
of the people to delay action until an opportunity for a hearing can be
provided in accordance with the prehearing and hearing provisions of
this section; the commissioner may order the licensee, by written
notice, to discontinue such dangerous condition or activity or take
certain action immediately and for a period of [ninety] ONE HUNDRED
TWENTY days from the date of service of the order. Within ten days from
the date of service of the said order, the state board for professional
medical conduct shall commence and regularly schedule such hearing
proceedings as required by this section, provided, however, that the
hearing shall be completed within [ninety] ONE HUNDRED TWENTY days of
S. 6840 4
the date of service of the order. To the extent that the issue of immi-
nent danger can be proven without the attorney representing the office
of professional medical conduct putting in its entire case, the commit-
tee of the board shall first determine whether by a preponderance of the
evidence the licensee is causing, engaging in or maintaining a condition
or activity which constitutes an imminent danger to the health of the
people. The attorney representing the office of professional medical
conduct shall have the burden of going forward and proving by a prepon-
derance of the evidence that the licensee's condition, activity or prac-
tice constitutes an imminent danger to the health of the people. The
licensee shall have an opportunity to be heard and to present proof.
When both the office and the licensee have completed their cases with
respect to the question of imminent danger, the committee shall promptly
make a recommendation to the commissioner on the issue of imminent
danger and determine whether the summary order should be left in effect,
modified or vacated, and continue the hearing on all the remaining
charges, if any, in accordance with paragraph (f) of subdivision ten of
this section. Within ten days of the committee's recommendation, the
commissioner shall determine whether or not to adopt the committee's
recommendations, in whole or in part, and shall leave in effect, modify
or vacate his summary order. The state board for professional medical
conduct shall make every reasonable effort to avoid any delay in
completing and determining such proceedings. If, at the conclusion of
the hearing, (i) the hearing committee of the board finds the licensee
guilty of one or more of the charges which are the basis for the summary
order, (ii) the hearing committee determines that the summary order
continue, and (iii) the [ninety] ONE HUNDRED TWENTY day term of the
order has not expired, the summary order shall remain in full force and
effect until a final decision has been rendered by the committee or, if
review is sought, by the administrative review board. A summary order
shall be public upon issuance.
§ 6. This act shall take effect on the one hundred eightieth day after
it shall have become a law.
