§ 2761. Function, powers and duties. 1. The health care worker
HIV/HBV advisory panel shall only evaluate and advise an HIV/HBV
infected health care worker who voluntarily seeks the panel's review of
the risk of HIV/HBV transmission to others through his/her workplace
practice. Prior to the panel's evaluation of the worker, the panel must
fully advise the worker of the panel's authority to investigate, to
recommend practice restrictions or modifications, to advise facilities
of such restrictions and to refer cases to professional licensing,
registration and certification boards. If the health care worker is
affiliated with or employed at a facility licensed by the department,
the panel may evaluate and advise the worker only after such facility
has completed its review of the scope of practice of the worker. This
institutional review may be conducted through the facility's existing
quality assurance program as required under section twenty-eight hundred
five-j of this chapter, and need not require the creation of a separate
facility HIV/HBV panel. Notwithstanding any other provision of law, rule
or regulation, the panel may request and shall be entitled to receive
patient records and other documents or information reasonably necessary
for and relevant to the panel's deliberations and the implementation of
this article including information and reports available to the
department under section twenty-eight hundred five-m of this chapter,
provided that the panel may only request records with patient names if
essential to the panel's complete review of the case and provided
further that employees of the department, other than the panel, shall
redact patient names before panel review of such records. Any such
information and reports provided to the panel that are subject to
section two thousand eight hundred five-m of this chapter shall remain
subject to the limitations on disclosure provided by such section. The
panel may seek the advice of professionals with relevant expertise. The
panel shall give the health care worker an opportunity to meet with the
panel. The health care worker may be accompanied by a union or other
representative at such meeting. Only when evidence indicates that the
health care worker's practice poses a significant risk of harm to
patients, the panel shall make appropriate recommendations that are
least restrictive with respect to the health care worker's practice
including, but not limited to, training or monitoring, or, if necessary,
reassignment or practice restrictions.

2. The panel shall evaluate an HIV/HBV infected health care worker
pursuant to comprehensive medical criteria, including:

(a) physical or mental condition that interferes with or is
significantly likely to interfere with the worker's ability to perform
assigned tasks or regular duties;

(b) lack of compliance with established guidelines to prevent
transmission of disease and/or documentation or evidence of previous
transmission of bloodborne pathogens;

(c) the appropriateness of techniques as related to performance of
procedures; and

(d) any health condition that would pose a significant risk to others.

3. When the panel recommends training, monitoring, reassignment, any
similar action, or practice restrictions, the health care worker shall
provide written assurance to the panel that he/she has informed
facilities licensed by the department where the worker provides patient
care of the panel's recommendations and shall identify the person or
persons at the facilities so informed. If the health care worker fails
to inform facilities licensed by the department where he/she provides
patient care of the panel's recommendations, the panel shall so notify
such facilities. If the health care worker fails to comply with the
panel's recommendations or compliance cannot be determined by the panel
after reasonable effort, the panel shall disclose the nature of its
recommendations to the professional licensing, registration or
certification boards relevant to the health care worker. The panel may
periodically monitor and reevaluate the worker, with the worker's
consent, at a frequency and through a mechanism to be determined by
agreement between the worker and the panel.

4. The information received by the panel, the record of deliberations
of the panel, and the decisions of the panel are not disclosable
pursuant to article six of the public officers law. If the health care
worker fails to comply with the recommendations of the panel or
compliance cannot be determined by the panel after reasonable effort,
information held by the panel, the panel's deliberations and
recommendations may be disclosed to and utilized by the office of
professional medical conduct, the office of professional discipline and
appropriate disciplinary bodies. The meetings of the panel are not
subject to article seven of the public officers law. The members of the
panel are bound by article six-A of the public officers law (personal
privacy protection law).

5. A health care worker's petition to the panel shall not prevent or
preclude the worker from seeking relief in any other forum at any time.

6. The commissioner may promulgate regulations implementing this
article.