S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9439
 
                           I N  A S S E M B L Y
 
                              March 14, 2024
                                ___________
 
 Introduced by M. of A. LEE -- read once and referred to the Committee on
   Health
 
 AN ACT to amend the education law and the public health law, in relation
   to requiring notification of misconduct by medical professionals
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. Subdivisions 20, 28 and 31 of section 6530 of the education
 law, as added by chapter 606 of the laws of 1991, are  amended  and  two
 new subdivisions 51 and 52 are added to read as follows:
   20. Conduct [in the practice of medicine] which evidences moral unfit-
 ness to practice medicine;
   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;
   31.  Willfully  harassing, abusing, or intimidating a patient [either]
 OR A PATIENT'S CAREGIVER OR SURROGATE physically or verbally;
   51. EXCEPT FOR GOOD CAUSE SHOWN, FAILING TO NOTIFY THE  DEPARTMENT  OF
 HEALTH  WITHIN  TEN CALENDAR DAYS OF HAVING BEEN CHARGED WITH A CRIME IN
 ANY JURISDICTION OR OF ANY EVENT MEETING THE DEFINITIONS OF PROFESSIONAL
 MISCONDUCT SET FORTH IN SUBDIVISION NINE OF THIS SECTION.
   52. VERBAL, WRITTEN, OR PHYSICAL BEHAVIOR OF A SEXUAL  NATURE  IN  THE
 PRACTICE  OF MEDICINE THAT HAS NO LEGITIMATE MEDICAL PURPOSE AND/OR THAT
 EXPLOITS THE CURRENT OR FORMER PRACTITIONER-PATIENT  RELATIONSHIP  IN  A
 SEXUAL  WAY.  THIS  BEHAVIOR  MAY  OCCUR  IN PERSON OR VIRTUALLY AND MAY
 INCLUDE EXPRESSIONS OF THOUGHTS AND FEELINGS  OR  GESTURES  AND  ACTIONS
 THAT  ARE  OF A SEXUAL NATURE OR THAT A PATIENT OR SURROGATE MAY REASON-
 ABLY CONSTRUE AS SEXUAL.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD14607-02-4
 A. 9439                             2
 
   § 2. Clause (C) of subparagraph (iii) of paragraph (a) of  subdivision
 10 of section 230 of the public health law, as amended by chapter 477 of
 the laws of 2008, is amended to read as follows:
   (C)  If  the director determines that the matter shall be submitted to
 an investigation committee, an investigation committee shall be convened
 within [ninety days] ONE YEAR of any  interview  of  the  licensee.  The
 director   shall  present  the  investigation  committee  with  relevant
 documentation including, but not limited to: (1) a copy of the  original
 complaint; (2) the report of the interviewer and the stenographic record
 if  one  was  taken; (3) the report of any medical or scientific expert;
 (4) copies of reports  of  any  patient  record  reviews;  and  (5)  the
 licensee's submissions.
   §  3. 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
 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 THIRTY 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 HEARING.
   (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.
   §  4.  Paragraph  (p)  of  subdivision 10 of section 230 of the public
 health law, as amended by chapter 599 of the laws of 1996, is amended to
 read as follows:
   (p) Convictions of crimes or  administrative  violations.  EXCEPT  FOR
 GOOD  CAUSE  SHOWN,  A  LICENSEE  SHALL NOTIFY THE DEPARTMENT WITHIN TEN
 CALENDAR DAYS OF HAVING BEEN CHARGED WITH A CRIME IN ANY JURISDICTION OR
 OF ANY EVENT MEETING THE  DEFINITIONS  OF  PROFESSIONAL  MISCONDUCT  SET
 FORTH  IN  SUBDIVISION  NINE OF SECTION SIXTY-FIVE HUNDRED THIRTY OF THE
 EDUCATION LAW. In cases of professional misconduct based solely  upon  a
 violation  of  subdivision  nine of section sixty-five hundred thirty of
 the education law, the director may direct that charges be prepared  and
 served  and  may refer the matter to a committee on professional conduct
 for its review and report of findings,  conclusions  as  to  guilt,  and
 determination. In such cases, the notice of hearing shall state that the
 licensee  shall file a written answer to each of the charges and allega-
 tions in the statement of charges no later than ten days  prior  to  the
 hearing,  and  that  any  charge  or allegation not so answered shall be
 A. 9439                             3

 deemed admitted, that the licensee may wish to seek the advice of  coun-
 sel  prior  to filing such answer that the licensee may file a brief and
 affidavits with the committee on professional conduct, that the licensee
 may  appear personally before the committee on professional conduct, may
 be represented by counsel and may present evidence or sworn testimony in
 his or her behalf, and the notice may contain such other information  as
 may  be  considered appropriate by the director. The department may also
 present evidence or sworn testimony and file a brief at the  hearing.  A
 stenographic record of the hearing shall be made. Such evidence or sworn
 testimony  offered  to  the  committee  on professional conduct shall be
 strictly limited to evidence and testimony relating to  the  nature  and
 severity  of  the  penalty  to  be  imposed upon the licensee. Where the
 charges are based on the conviction of state law crimes in other  juris-
 dictions, evidence may be offered to the committee which would show that
 the  conviction would not be a crime in New York state. The committee on
 professional conduct may reasonably limit the number of witnesses  whose
 testimony  will  be  received and the length of time any witness will be
 permitted to testify. The determination of the committee shall be served
 upon the licensee and the department in accordance with  the  provisions
 of  paragraph  (h) of this subdivision. A determination pursuant to this
 subdivision may be reviewed  by  the  administrative  review  board  for
 professional medical conduct.
   §  5.  Subdivision  12  of  section  230  of the public health law, as
 amended by chapter 627 of the laws of 1996, paragraph (a) as amended  by
 chapter  477 of the laws of 2008 and paragraph (b) as amended by section
 3 of part CC of chapter 57 of the laws of 2018, is amended  to  read  as
 follows:
   12.  Summary  action.  (a)  Whenever the commissioner, (i) after being
 presented with information indicating that a licensee is causing, engag-
 ing 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 commissioner'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 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] THIRTY
 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  the  date  of  service of the order. To the extent that the issue of
 imminent danger can be proven  without  the  attorney  representing  the
 office  of  professional medical conduct putting in its entire case, the
 committee of the board shall first determine whether by a  preponderance
 A. 9439                             4
 
 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
 preponderance of the evidence that the licensee's condition, activity or
 practice 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.
   (b)  When  a licensee has pleaded or been found guilty or convicted of
 committing an act constituting a felony under  New  York  state  law  or
 federal  law,  or  the  law  of another jurisdiction which, if committed
 within this state, would have constituted a felony under New York  state
 law,  or when a licensee has been charged with committing an act consti-
 tuting a felony under New York state or federal law or the law of anoth-
 er jurisdiction, where the licensee's alleged conduct, which, if commit-
 ted within this state, would have constituted a felony  under  New  York
 state  law,  and  in  the  commissioner's opinion the licensee's alleged
 conduct constitutes an imminent danger to the health of the  people,  or
 when  the  duly  authorized  professional disciplinary agency of another
 jurisdiction has made a finding substantially equivalent  to  a  finding
 that  the  practice  of  medicine  by  the licensee in that jurisdiction
 constitutes an imminent danger to the health of its people,  or  when  a
 licensee  has  been disciplined by a duly authorized professional disci-
 plinary agency of another jurisdiction for acts which  if  committed  in
 this  state  would  have constituted the basis for summary action by the
 commissioner pursuant to paragraph (a) of this subdivision, the  commis-
 sioner, after a recommendation by a committee of professional conduct of
 the  state  board for professional medical conduct, may order the licen-
 see, by written notice, to discontinue or refrain from practicing  medi-
 cine  in whole or in part or to take certain actions authorized pursuant
 to this title immediately. The order of the commissioner  shall  consti-
 tute  summary  action  against the licensee and become public upon issu-
 ance. The summary suspension shall remain  in  effect  until  the  final
 conclusion  of  a hearing which shall commence within ninety days of the
 date of service of the commissioner's order,  end  within  [ninety]  ONE
 HUNDRED  EIGHTY days thereafter and otherwise be held in accordance with
 paragraph (a) of this subdivision,  provided,  however,  that  when  the
 A. 9439                             5
 
 commissioner's order is based upon a finding substantially equivalent to
 a  finding  that  the  practice  of  medicine by the licensee in another
 jurisdiction constitutes an imminent danger to the health of its people,
 the  hearing  shall  commence  within thirty days after the disciplinary
 proceedings in that jurisdiction are finally concluded. If, at any time,
 the felony charge is dismissed, withdrawn or  reduced  to  a  non-felony
 charge, the commissioner's summary order shall terminate.
   §  6.  Paragraph  (a) of subdivision 1 of section 2803-e of the public
 health law, as amended by chapter 294 of the laws of 1985, is amended to
 read as follows:
   (a) Hospitals and other facilities approved pursuant to  this  article
 shall  make  a report or cause a report to be made within thirty days of
 the occurrence of any of the  following:  the  suspension,  restriction,
 termination  or  curtailment of the training, employment, association or
 professional privileges or the denial of the certification of completion
 of training of an individual licensed  pursuant  to  the  provisions  of
 title  eight  of  the  education  law or of a medical resident with such
 facility for reasons related in any way to alleged  mental  or  physical
 impairment,  incompetence,  malpractice  or  misconduct or impairment of
 patient safety or welfare; the voluntary or involuntary  resignation  or
 withdrawal  of  association or of privileges with such facility to avoid
 the imposition of disciplinary measures; NOTIFICATION BY THE HOSPITAL OR
 FACILITY, TO ANY ENTITY  PROVIDING  PERSONNEL  TO  PERFORM  PROFESSIONAL
 SERVICES  TO SUCH HOSPITAL OR FACILITY, THAT THE ENTITY MAY NOT ASSIGN A
 PARTICULAR INDIVIDUAL TO PROVIDE SUCH SERVICES TO THE HOSPITAL OR FACIL-
 ITY, FOR REASONS RELATED IN  ANY  WAY  TO  ALLEGED  MENTAL  OR  PHYSICAL
 IMPAIRMENT,  INCOMPETENCE,  MALPRACTICE  OR  MISCONDUCT OR IMPAIRMENT OF
 PATIENT SAFETY OR WELFARE; or the receipt of information which indicates
 that any professional licensee or medical resident has been convicted of
 a crime; the denial of staff privileges to a physician  if  the  reasons
 stated for such denial are related to alleged mental or physical impair-
 ment,  incompetence,  malpractice,  misconduct  or impairment of patient
 safety or welfare.
   § 7. This act shall take effect immediately and  shall  be  deemed  to
 have been in full force and effect on and after April 1, 2024; provided,
 however,  that  the  amendments  to  paragraph  (a) of subdivision 10 of
 section 230 of the public health law made by section  two  of  this  act
 shall not affect the expiration of such paragraph and shall expire ther-
 ewith.