§ 6510. Proceedings in cases of professional misconduct. In cases of
professional misconduct the proceedings shall be as follows:

1. Preliminary procedures.

a. Complaint. A complaint of a licensee's professional misconduct may
be made by any person to the education department.

b. Investigation. The department shall investigate each complaint
which alleges conduct constituting professional misconduct. The results
of the investigation shall be referred to the professional conduct
officer designated by the board of regents pursuant to section
sixty-five hundred six of this article. If such officer decides that
there is not substantial evidence of professional misconduct or that
further proceedings are not warranted, no further action shall be taken.
If such officer, after consultation with a professional member of the
applicable state board for the profession, determines that there is
substantial evidence of professional misconduct, and that further
proceedings are warranted, such proceedings shall be conducted pursuant
to this section. If the complaint involves a question of professional
expertise, then such officer may seek, and if so shall obtain, the
concurrence of at least two members of a panel of three members of the
applicable board. The department shall cause a preliminary review of
every report made to the department pursuant to section twenty-eight
hundred three-e as added by chapter eight hundred sixty-six of the laws
of nineteen hundred eighty and sections forty-four hundred five-b of the
public health law and three hundred fifteen of the insurance law, to
determine if such report reasonably appears to reflect conduct
warranting further investigation pursuant to this subdivision.

c. Charges. In all disciplinary proceedings other than those
terminated by an administrative warning pursuant to paragraph a of
subdivision two of this section, the department shall prepare the
charges. The charges shall state the alleged professional misconduct and
shall state concisely the material facts but not the evidence by which
the charges are to be proved.

d. Records and reports as public information. In all disciplinary
proceedings brought pursuant to this section or in any voluntary
settlement of a complaint between the licensee and the department, the
department shall notify the licensee in writing that the record and
reports of such disciplinary proceeding or of such voluntary settlement
shall be considered matters of public information unless specifically
excepted in this article, or in any other law or applicable rule or
regulation.

e. Service of charges and notice of hearing. In order to commence
disciplinary proceedings under this title, service of a copy of the
charges and notice of hearing must be completed twenty days before the
date of the hearing if by personal delivery, and must be completed
twenty-five days before the date of the hearing if by any other method.

f. Service of charges and of notice of hearing upon a natural person.
Personal service of the charges and notice of any hearing pursuant to
subdivision two or three of this section upon a natural person shall be
made by any of the following methods:

(1) by delivery within the state to the person to be served; or

(2) by delivery within the state to a person of suitable age and
discretion at the actual place of business, dwelling place or usual
place of abode of the person to be served and either: (i) by mailing by
certified mail, return receipt requested, to the person to be served at
his or her last known residence, or (ii) by mailing by certified mail,
return receipt requested, to the person to be served at his or her last
address on file with the division of licensing services of the
department in an envelope bearing the legend "personal and
confidential," provided that, in either case: such delivery and mailing
shall be effected within twenty days of each other; service pursuant to
this subparagraph shall be complete ten days after either the delivery,
or the mailing, whichever is later; and proof of service shall, among
other things, identify such person of suitable age and discretion and
state the date, time and place of such service; or

(3) where service under subparagraphs one and two of this paragraph
cannot be made with due diligence, a copy of the charges and the notice
of hearing shall be served by certified mail, return receipt requested,
to the person's last known address on file with the division of
licensing services of the department or by affixing the changes and the
notice of hearing to the door of either the actual place of business,
dwelling place or usual place of abode of the person to be served;
provided that: service pursuant to this subparagraph shall be complete
ten days after such mailing, and proof of service shall set forth the
department's efforts of due diligence.

g. Service of charges and notice of hearing outside of the state. A
natural person subject to the jurisdiction of the department may be
served with a copy of the charges and the notice of hearing outside of
the state in the same manner as service is made within the state, by any
person authorized to make service within the state of New York or by any
person authorized to make service by the laws of the state, territory,
possession or country in which service is made or by any duly qualified
attorney or equivalent in such jurisdiction.

2. Expedited procedures.

a. Violations. Violations involving professional misconduct of a minor
or technical nature may be resolved by expedited procedures as provided
in paragraph b or c of this subdivision. For purposes of this
subdivision, violations of a minor or technical nature shall include,
but shall not be limited to, isolated instances of violations concerning
professional advertising or record keeping, and other isolated
violations which do not directly affect or impair the public health,
welfare or safety. The board of regents shall make recommendations to
the legislature on or before June first, nineteen hundred eighty-one,
for the further definition of violations of a minor or technical nature.
The initial instance of any violation of a minor or technical nature may
be resolved by the issuance of an administrative warning pursuant to
paragraph b of this subdivision. Subsequent instances of similar
violations of a minor or technical nature within a period of three years
may be resolved by the procedure set forth in paragraph c of this
subdivision.

b. Administrative warning. If a professional conduct officer, after
consultation with a professional member of the state board, determines
that there is substantial evidence of professional misconduct but that
it is an initial violation of a minor or technical nature which would
not justify the imposition of a more severe disciplinary penalty, the
matter may be terminated by the issuance of an administrative warning.
Such warnings shall be confidential and shall not constitute an
adjudication of guilt or be used as evidence that the licensee is guilty
of the alleged misconduct. However, in the event of a further allegation
of similar misconduct by the same licensee, the matter may be reopened
and further proceedings instituted as provided in this section.

c. Determination of penalty on uncontested minor violations. If a
professional conduct officer, after consultation with a professional
member of the state board, determines that there is substantial evidence
of a violation of a minor or technical nature, and of a nature
justifying a penalty as specified in this paragraph, the department may
prepare and serve charges either by personal service or by certified
mail, return receipt requested. Such charges shall include a statement
that unless an answer is received within twenty days denying the
charges, the matter shall be referred to a violations committee
consisting of at least three members of the state board for the
profession, at least one of whom shall be a public representative, for
determination. The violations panel shall be appointed by the executive
secretary of the state board. The licensee shall be given at least
fifteen days notice of the time and place of the meeting of the
violations committee and shall have the right to appear in person and by
an attorney and to make a statement to the committee in mitigation or
explanation of the misconduct. The department may appear and make a
statement in support of its position. The violations committee may issue
a censure and reprimand, and in addition, or in the alternative, may
impose a fine not to exceed five hundred dollars for each specification
of minor, or technical misconduct. If the fine is not paid within three
months the matter may be reopened and shall be subject to the hearing
and regents decision procedures of this section. The determination of
the panel shall be final and shall not be subject to the regents
decision procedures of this section. If an answer is filed denying the
charges, the matter shall be processed as provided in subdivision three
of this section.

d. Convictions of crimes or administrative violations. In cases of
professional misconduct based solely upon a violation of subdivision
five of section sixty-five hundred nine of this article, the
professional conduct officer may prepare and serve the charges and may
refer the matter directly to a regents review committee for its review
and report of its findings, determination as to guilt, and
recommendation as to the measure of discipline to be imposed. In such
cases the notice of hearing shall state that the licensee may file a
written answer, brief and affidavits; that the licensee may appear
personally before the regents review committee, may be represented by
counsel and may present evidence or sworn testimony on behalf of the
licensee, and the notice may contain such other information as may be
considered appropriate by the department. The department may also
present evidence or sworn testimony at the hearing. A stenographic
record of the hearing shall be made. Such evidence or sworn testimony
offered at the meeting of the regents review committee shall be limited
to evidence and testimony relating to the nature and severity of the
penalty to be imposed upon the licensee. The presiding officer at the
meeting of the regents review committee may, in his or her discretion,
reasonably limit the number of witnesses whose testimony will be
received and the length of time any witness will be permitted to
testify. In lieu of referring the matter to the board of regents, the
regents review committee may refer any such matter for further
proceedings pursuant to paragraph b or c of this subdivision or
subdivision three of this section.

3. Adversary proceedings. Contested disciplinary proceedings and other
disciplinary proceedings not resolved pursuant to subdivision two of
this section shall be tried before a hearing panel of the appropriate
state board as provided in this subdivision.

a. Notice of hearing. The department shall set the time and place of
the hearing and shall prepare the notice of hearing. The notice of
hearing shall state (1) the time and place of the hearing, (2) that the
licensee may file a written answer to the charges prior to the hearing,
(3) that the licensee may appear personally at the hearing and may be
represented by counsel, (4) that the licensee shall have the right to
produce witnesses and evidence in his behalf, to cross-examine witnesses
and examine evidence produced against him, and to issue subpoenas in
accordance with the provisions of the civil practice law and rules, (5)
that a stenographic record of the hearing will be made, and (6) such
other information as may be considered appropriate by the department.

b. Hearing panel. The hearing shall be conducted by a panel of three
or more members, at least two of whom shall be members of the applicable
state board for the profession, and at least one of whom shall be a
public representative who is a member of the applicable state board or
of the state board for another profession licensed pursuant to this
title. The executive secretary for the applicable state board shall
appoint the panel and shall designate its chairperson. After the
commencement of a hearing, no panel member shall be replaced. A
determination by the administrative officer of a need to disqualify or
remove any panel member will result in the disqualification or removal
of the panel and cause a new panel to be appointed. In addition to said
panel members, the department shall designate an administrative officer,
admitted to practice as an attorney in the state of New York, who shall
have the authority to rule on all motions, procedures and other legal
objections and shall draft a report for the hearing panel which shall be
subject to the approval of and signature by the panel chairperson on
behalf of the panel. The administrative officer shall not be entitled to
a vote.

c. Conduct of hearing. The evidence in support of the charges shall be
presented by an attorney for the department. The licensee shall have the
rights required to be stated in the notice of hearing. The panel shall
not be bound by the rules of evidence, but its determination of guilt
shall be based on a preponderance of the evidence. A hearing which has
been initiated shall not be discontinued because of the death or
incapacity to serve of one member of the hearing panel.

d. Results of hearing. The hearing panel shall render a written report
which shall include (1) findings of fact, (2) a determination of guilty
or not guilty on each charge, and (3) in the event of a determination of
guilty, a recommendation of the penalty to be imposed. For the panel to
make a determination of guilty, a minimum of two of the voting members
of the panel must vote for such a determination. A copy of the report of
the hearing panel shall be transmitted to the licensee.

4. Regents decision procedures.

a. Regents review committee. The transcript and report of the hearing
panel shall be reviewed at a meeting by a regents review committee
appointed by the board of regents. The regents review committee shall
consist of three members, at least one of whom shall be a regent.

b. Regents review committee meetings. The review shall be based on the
transcript and the report of the hearing panel. The licensee may appear
at the meeting, and the regents review committee may require the
licensee to appear. The licensee may be represented by counsel. The
department shall notify the licensee at least seven days before the
meeting (1) of the time and place of the meeting, (2) of his right to
appear, (3) of his right to be represented by counsel, (4) whether or
not he is required to appear, and (5) of such other information as may
be considered appropriate. After the meeting, the regents review
committee shall transmit a written report of its review to the board of
regents. In cases referred directly to the regents review committee
pursuant to paragraph d of subdivision two of this section, the review
shall be based upon the charges, the documentary evidence submitted by
the department, any answer, affidavits or brief the licensee may wish to
submit, and any evidence or sworn testimony presented by the licensee or
the department at the hearing, pursuant to the procedures described by
paragraph d of subdivision two of this section.

c. Regents decision and order. The board of regents (1) shall consider
the transcript, the report of the hearing panel, and the report of the
regents review committee, (2) shall decide whether the licensee is
guilty or not guilty on each charge, (3) shall decide what penalties, if
any, to impose as prescribed in section sixty-five hundred eleven of
this article, and (4) shall issue an order to carry out its decisions.
Such decisions shall require the affirmative vote of a majority of the
members of the board of regents. If the board of regents disagrees with
the hearing panel's determination of not guilty, it shall remand the
matter to the original panel for reconsideration or to a new panel for a
new hearing. The panel's determination of not guilty on reconsideration
or a new hearing shall be final. The order shall be served upon the
licensee personally or by certified mail to the licensee's last known
address and such service shall be effective as of the date of the
personal service or five days after mailing by certified mail. The
licensee shall deliver to the department the license and registration
certificate which has been revoked, annulled, suspended, or surrendered
within five days after the effective date of the service of the order.
If the license or registration certificate is lost, misplaced or its
whereabouts is otherwise unknown, the licensee shall submit an affidavit
to that effect, and shall deliver such license or certificate to the
department when located.

5. Court review procedures. The decisions of the board of regents may
be reviewed pursuant to the proceedings under article seventy-eight of
the civil practice law and rules. Such proceedings shall be returnable
before the appellate division of the third judicial department, and such
decisions shall not be stayed or enjoined except upon application to
such appellate division after notice to the department and to the
attorney general and upon a showing that the petitioner has a
substantial likelihood of success.

5-a. At any time, if the professional conduct officer or his or her
designee designated to investigate a complaint of professional
misconduct of a licensed health care provider or licensed mental health
care provider determines that there is a reasonable belief that an act
that constitutes a sex offense identified in paragraph (h) of
subdivision three of section 130.05 of the penal law has been committed
by the licensee against a client or patient during a treatment session,
consultation, interview, or examination, the professional conduct
officer or the office of professional discipline shall notify the
appropriate law enforcement official or authority.

6. The provisions of subdivisions one through four of this section
shall not be applicable to proceedings in cases of professional
misconduct involving the medical profession, except as provided in
paragraph m of subdivision ten of section two hundred thirty of the
public health law.

7. Notwithstanding any other provision of law, persons who assist the
department as consultants or expert witnesses in the investigation or
prosecution of alleged professional misconduct, licensure matters,
restoration proceedings, or criminal prosecutions for unauthorized
practice, shall not be liable for damages in any civil action or
proceeding as a result of such assistance, except upon proof of actual
malice. The attorney general shall defend such persons in any such
action or proceeding, in accordance with section seventeen of the public
officers law.

8. The files of the department relating to the investigation of
possible instances of professional misconduct, or the unlawful practice
of any profession licensed by the board of regents, or the unlawful use
of a professional title or the moral fitness of an applicant for a
professional license or permit, shall be confidential and not subject to
disclosure at the request of any person, except upon the order of a
court in a pending action or proceeding. The provisions of this
subdivision shall not apply to documents introduced in evidence at a
hearing held pursuant to this chapter and shall not prevent the
department from sharing information concerning investigations with other
duly authorized public agencies responsible for professional regulation
or criminal prosecution.

9. A disciplinary proceeding under subdivision three or four of this
section shall be treated in the same manner as an action or proceeding
in supreme court for the purpose of any claim by counsel of actual
engagement.