DEFINITIONS OF PROFESSIONAL MISCONDUCT APPLICABLE TO PHYSICIANS, PHYSICIAN'S ASSISTANTS AND SPECIALIST'S ASSISTANTS

Transcription

1 ARTICLE 131-A DEFINITIONS OF PROFESSIONAL MISCONDUCT APPLICABLE TO PHYSICIANS, PHYSICIAN'S ASSISTANTS AND SPECIALIST'S ASSISTANTS Section Definitions pressionl misconduct Additionl definition pressionl misconduct, limited ppliction Enfcement, dministrtion nd interprettion this rticle Definitions pressionl misconduct. Ech following is pressionl misconduct, nd ny licensee found guilty such misconduct under procedures prescrid in section two hundred thirty public helth lw shll subject to penlties s prescrid in section two hundred thirty- public helth lw except tht chrges my dismissed in interest justice: 1. Obtining license frudulently; 2. Prcticing pression frudulently yond its uthized scope; 3. Prcticing pression with negligence on me thn one occsion; 4. Prcticing pression with gross negligence on prticulr occsion; 5. Prcticing pression with incompetence on me thn one occsion; 6. Prcticing pression with gross incompetence; 7. Prcticing pression while impired by lcohol, drugs, physicl disbility, mentl disbility; 8. Being hbitul buser lcohol, ing dependent on hbitul user nrcotics, brbiturtes, mphetmines, hllucinogens, drugs hving similr effects, except f licensee who is mintined on n pproved rpeutic regimen which does not impir bility to prctice, hving psychitric condition which impirs licensee's bility to prctice; 9. () Being convicted committing n ct constituting crime under: (i) New Yk stte lw, (ii) federl lw,

2 (iii) lw n jurisdiction nd which, if committed within this stte, would hve constituted crime under New Yk stte lw; (b) Hving en found guilty improper pressionl prctice pressionl misconduct by duly uthized pressionl disciplinry gency n stte where conduct upon which finding ws bsed would, if committed in New Yk stte, constitute pressionl misconduct under lws New Yk stte; (c) Hving en found guilty in n djudicty proceeding violting stte federl sttute regultion, pursunt to finl decision determintion, nd when no ppel is pending, fter resolution proceeding by stipultion greement, nd when violtion would constitute pressionl misconduct pursunt to this section; (d) Hving his her license to prctice medicine revoked, suspended hving disciplinry ction tken, hving his her ppliction f license refused, revoked suspended hving voluntrily wise surrendered his her license fter disciplinry ction ws instituted by duly uthized pressionl disciplinry gency n stte, where conduct resulting in revoction, suspension disciplinry ction involving license refusl, revoction suspension n ppliction f license surrender license would, if committed in New Yk stte, constitute pressionl misconduct under lws New Yk stte; (e) Hving en found by commissioner helth to in violtion rticle thirty-three public helth lw; 10. Refusing to provide pressionl service to person cuse such person's rce, creed, col ntionl igin; 11. Permitting, iding tting n unlicensed person to perfm ctivities requiring license; 12. Prcticing pression while license is suspended inctive s defined in subdivision thirteen section two hundred

3 thirty public helth lw, willfully filing to register notify deprtment eduction ny chnge nme miling ddress,, if pressionl service cption, willfully filing to comply with sections fifteen hundred three nd fifteen hundred fourteen business cption lw, if university fculty prctice cption wilfully filing to comply with prgrphs (b), (c) nd (d) section fifteen hundred three nd section fifteen hundred fourteen business cption lw; 13. A willful violtion by licensee subdivision eleven section two hundred thirty public helth lw; * 14. A violtion section twenty-eight hundred three-d twenty-eight hundred five-k public helth lw; * NB Effective until Novemr 3, 2008 * 14. A violtion section twenty-eight hundred three-d, twenty-eight hundred five-k subprgrph (ii) prgrph (h) subdivision ten section two hundred thirty public helth lw; * NB Effective Novemr 3, Filure to comply with n der issued pursunt to subdivision seven, prgrph () subdivision ten, nd subdivision seventeen section two hundred thirty public helth lw; 16. A willful grossly negligent filure to comply with substntil provisions federl, stte, locl lws, rules, regultions governing prctice medicine; 17. Exercising undue influence on ptient, including promotion sle services, goods, pplinces, drugs in such mnner s to exploit ptient f finncil gin licensee third prty; 18. Directly indirectly fering, giving, soliciting, receiving greeing to receive, ny fee considertion to from third prty f referrl ptient in connection with perfmnce pressionl services; 19. Permitting ny person to shre in fees f pressionl

4 services, thn: prtner, employee, ssocite in pressionl firm cption, pressionl subcontrct consultnt uthized to prctice medicine, leglly uthized trinee prcticing under supervision licensee. This prohibition shll include ny rrngement greement whereby mount received in pyment f furnishing spce, fcilities, equipment personnel services used by licensee constitutes percentge, is wise dependent upon, income receipts licensee from such prctice, except s wise provided by lw with respect to fcility licensed pursunt to rticle twenty-eight public helth lw rticle thirteen mentl hygiene lw; 20. Conduct in prctice medicine which evidences ml unfitness to prctice medicine; 21. Willfully mking filing flse rept, filing to file rept required by lw by deprtment helth eduction deprtment, willfully impeding obstructing such filing, inducing n person to do so; 22. Filing to mke vilble to ptient, upon request, copies documents in possession under control licensee which hve en prepred f nd pid f by ptient client; 23. Reveling personlly identifible fcts, dt, infmtion obtined in pressionl cpcity without pri consent ptient, except s uthized required by lw; 24. Prcticing fering to prctice yond scope permitted by lw, ccepting nd perfming pressionl responsibilities which licensee knows hs reson to know tht he she is not competent to perfm, perfming without dequte supervision pressionl services which licensee is uthized to perfm only under supervision licensed pressionl, except in n emergency sitution where person's life helth is in dnger; 25. Delegting pressionl responsibilities to person when

5 licensee delegting such responsibilities knows hs reson to know tht such person is not qulified, by trining, by experience, by licensure, to perfm m; 25-. With respect to ny non-emergency tretment, procedure surgery which is expected to involve locl generl nessi, filing to disclose to ptient identities ll physicins, except medicl residents in certified trining progrms, poditrists nd dentists, resonbly nticipted to ctively involved in such tretment, procedure surgery nd to obtin such ptient's infmed consent to sid prctitioners' prticiption; 26. Perfming pressionl services which hve not en duly uthized by ptient his her legl representtive; 27. Advertising soliciting f ptronge tht is not in public interest. () Advertising soliciting not in public interest shll include, but not limited to, dvertising soliciting tht: (i) is flse, frudulent, deceptive, misleding, senstionl, flmboynt; (ii) represents intimidtion undue pressure; (iii) uses testimonils; (iv) gurntees ny service; (v) mkes ny clim relting to pressionl services products costs price ref which cnnot substntited by licensee, who shll hve burden pro; (vi) mkes clims pressionl superiity which cnnot substntited by licensee, who shll hve burden pro; (vii) fers bonuses inducements in ny fm thn discount reduction in n estblished fee price f pressionl service product. (b) The following shll deemed pproprite mens infming public vilbility pressionl services: (i) infmtionl dvertising not contrry to fegoing prohibitions; nd (ii) dvertising in newspper, periodicl pressionl directy on rdio television fixed prices, stted rnge prices, f specified routine pressionl services, provided tht if re is n dditionl chrge f relted services which re n integrl

6 prt overll service ing provided by licensee, dvertisement shll so stte, nd provided furr tht dvertisement indictes period time f which dvertised prices shll in effect. (c)(i) All licensees plcing dvertisements shll mintin, cuse to mintined, n exct copy ech dvertisement, trnscript, tpe video tpe re s pproprite f medium used, f period one yer fter its lst ppernce. This copy shll mde vilble f inspection upon demnd deprtment helth; (ii) A licensee shll not compenste give nything vlue to representtives press, rdio, television communictions medi in nticiption in return f pressionl publicity in news item; (d) No demonstrtions, drmtiztions ptryls pressionl prctice shll permitted in dvertising on rdio television; 28. Filing to respond within thirty dys to written communictions from deprtment helth nd to mke vilble ny relevnt recds with respect to n inquiry complint bout licensee's pressionl misconduct. The period thirty dys shll commence on dte when such communiction ws delivered personlly to licensee. If communiction is sent from deprtment helth by registered certified mil, with return receipt requested, to ddress ppering in lst registrtion, period thirty dys shll commence on dte delivery to licensee, s indicted by return receipt; 29. Violting ny term probtion condition limittion imposed on licensee pursunt to section two hundred thirty public helth lw; 30. Abndoning neglecting ptient under nd in need immedite pressionl cre, without mking resonble rrngements f

7 continution such cre, bndoning pressionl employment by group prctice, hospitl, clinic helth cre fcility, without resonble notice nd under circumstnces which seriously impir delivery pressionl cre to ptients clients; 31. Willfully hrssing, busing, intimidting ptient eir physiclly verblly; 32. Filing to mintin recd f ech ptient which ccurtely reflects evlution nd tretment ptient, provided, however, tht physicin who trnsfers n iginl mmmogrm to medicl institution, to physicin helth cre provider ptient, to ptient directly, s wise provided by lw, shll hve no obligtion under this section to mintin iginl copy re. Unless wise provided by lw, ll ptient recds must retined f t lest six yers. Obstetricl recds nd recds min ptients must retined f t lest six yers, nd until one yer fter min ptient reches ge eighteen yers; 33. Filing to exercise pproprite supervision over persons who re uthized to prctice only under supervision licensee; 34. Gurnteeing tht stisfction cure will result from perfmnce pressionl services; 35. Ordering excessive tests, tretment, use tretment fcilities not wrrnted by condition ptient; 36. Climing using ny secret specil method tretment which licensee refused to divulge to deprtment helth; 37. Filing to wer n identifying bdge, which shll conspicuously displyed nd legible, indicting prctitioner's nme nd pressionl title uthized pursunt to this chpter, while prcticing s n employee opert hospitl, clinic, group prctice multipressionl fcility, t commercil estblishment fering helth services to public; 38. Entering into n rrngement greement with phrmcy f compounding nd/ dispensing coded specilly mrked prescriptions;

8 39. With respect to ll pressionl prctices conducted under n ssumed nme, thn fcilities licensed pursunt to rticle twenty-eight public helth lw rticle thirteen mentl hygiene lw, filing to post conspicuously t site such prctice nme nd licensure field ll principl pressionl licensees engged in prctice t tht site (i.e., principl prtners, ficers principl shreholders); 40. Filing to provide ccess by qulified persons to ptient infmtion in ccdnce with stndrds set fth in section eighteen public helth lw s dded by chpter 497 lws 1986; 41. Knowingly willfully perfming complete prtil utopsy on decesed person without lwful uthity; 42. Filing to comply with signed greement to prctice medicine in New Yk stte in n re designted by commissioner eduction s hving shtge physicins refusing to repy medicl eduction costs in lieu such required service, filing to comply with ny provision written greement with stte ny municiplity within which licensee hs greed to provide medicl service, refusing to repy funds in lieu such service s considertion wrds mde by stte ny municiplity re f his her pressionl eduction in medicine, filing to comply with ny greement entered into to id his her medicl eduction; 43. Filing to complete fms repts required f reimbursement ptient by third prty. Resonble fees my chrged f such fms repts, but pri pyment f pressionl services to which such fms repts relte my not required s condition f mking such fms repts vilble; 44. In prctice psychitry, () ny physicl contct sexul nture tween licensee nd ptient except use films nd/ udiovisul ids with individuls groups in

9 development pproprite responses to overcome sexul dysfunction nd (b) in rpy groups, ctivities which promote explicit physicl sexul contct tween group memrs during sessions; nd 45. In prctice ophthlmology, filing to provide ptient, upon request, with ptient's prescription including nme, ddress, nd signture prescrir nd dte prescription. * 46. A violtion section two hundred thirty-eight public helth lw by pressionl thn pressionl subject to provisions prgrph (f) subdivision one section twentyeight hundred five-k public helth lw. * NB Effective until Novemr 3, 2008 * 46. A violtion section two hundred thirty-nine public helth lw by pressionl. * NB Effective Novemr 3, Filure to use scientificlly ccepted brrier precutions nd infection control prctices s estblished by deprtment helth pursunt to section two hundred thirty- public helth lw. 48. A violtion section two hundred thirty-d public helth lw regultions commissioner helth encted reunder. * 49. Except f good cuse shown, filing to provide within one dy ny relevnt recds infmtion requested by stte locl deprtment helth with respect to n inquiry into rept communicble disese s defined in stte snitry code, HIV/AIDS. * NB Effective Novemr 3, Additionl definition pressionl misconduct, limited ppliction. Notwithstnding ny inconsistent provision this rticle ny provisions lw to contrry, license registrtion person subject to provisions this rticle nd rticle one hundred thirty-one-b this chpter my revoked, suspended, nnulled such person my subject to ny

10 penlty provided in section two hundred thirty- public helth lw in ccdnce with provisions nd procedures this rticle f following: Tht ny person subject to bove-enumerted rticles hs directly indirectly requested, received prticipted in division, trnsference, ssignment, rebte, splitting, refunding fee f, hs directly requested, received prited by mens credit vluble considertion s commission, discount grtuity, in connection with furnishing pressionl cre service, including x-ry exmintion nd tretment, f in connection with sle, rentl, supplying, furnishing clinicl lbty services supplies, x-ry lbty services supplies, inhltion rpy service equipment, mbulnce service, hospitl medicl supplies, physipy rpeutic service equipment, rtificil limbs, teeth eyes, thopedic surgicl pplinces supplies, opticl pplinces, supplies, equipment, devices f id hering, drugs, mediction, medicl supplies, ny goods, services, supplies prescrid f medicl dignosis, cre, tretment under this chpter, except pyment, not to exceed thirtythree nd one-third percent ny fee received f x-ry exmintion, dignosis, tretment, to ny hospitl furnishing fcilities f such exmintion, dignosis, tretment. Nothing contined in this section shll prohibit such persons from prcticing s prtners, in groups s pressionl cption s university fculty prctice cption, n from pooling fees nd moneys received, eir by prtnerships, pressionl cptions, university fculty prctice cptions groups by individul memrs re, f pressionl services furnished by n individul pressionl memr, employee such prtnership, cption, group, n shll

11 pressionls constituting prtnerships, cptions groups prohibited from shring, dividing, pptioning fees nd moneys received by m by prtnership, cption, group in ccdnce with prtnership greement; provided tht no such prctice s prtners, cptions, groups, pooling fees moneys received shred, division pptionment fees shll permitted with respect to nd tretment under wkers' compenstion lw. Nothing contined in this chpter shll prohibit cption licensed pursunt to rticle fty-three insurnce lw pursunt to its contrct with subscrid from prtioning medicl dentl expenses indemnity llownce mong two me pressionls in proption to services rendered by ech such pressionl t request subscrir, provided tht pri to pyment re such pressionls shll submit both to cption licensed pursunt to rticle fty-three insurnce lw nd to subscrir sttements itemizing services rendered by ech such pressionl nd chrges ref Enfcement, dministrtion nd interprettion this rticle. The bord pressionl medicl conduct nd deprtment helth shll enfce, dminister nd interpret this rticle. Befe issuing declrty ruling pursunt to section two hundred four stte dministrtive procedure ct with respect to this rticle, deprtment helth shll fully consult with deprtment eduction. Neir commissioner eduction, bord regents n commissioner helth my promulgte ny rules regultions concerning this rticle.