New York State Education § 6530 Definitions of Professional Misconduct

  § 6530. Definitions  of professional misconduct. Each of the following
is professional misconduct,  and  any  licensee  found  guilty  of  such
misconduct under the procedures prescribed in section two hundred thirty
of  the public health law shall be subject to penalties as prescribed in
section two hundred thirty-a of the public health law  except  that  the
charges may be dismissed in the interest of justice:
  1. Obtaining the license fraudulently;
  2.  Practicing  the  profession  fraudulently or beyond its authorized
  3.  Practicing  the  profession  with  negligence  on  more  than  one
  4.  Practicing  the  profession  with gross negligence on a particular
  5. Practicing the  profession  with  incompetence  on  more  than  one
  6. Practicing the profession with gross incompetence;
  7.  Practicing  the  profession  while  impaired  by  alcohol,  drugs,
physical disability, or mental disability;
  8. Being a habitual abuser of alcohol, or  being  dependent  on  or  a
habitual  user  of narcotics, barbiturates, amphetamines, hallucinogens,
or other drugs having similar effects, except  for  a  licensee  who  is
maintained  on an approved therapeutic regimen which does not impair the
ability to practice, or having a psychiatric condition which impairs the
licensee's ability to practice;
  9. (a) Being convicted of  committing  an  act  constituting  a  crime
  (i) New York state law or,
  (ii) federal law or,
  (iii)  the  law of another jurisdiction and which, if committed within
this state, would have constituted a crime under New York state law;
  (b) Having been found guilty  of  improper  professional  practice  or
professional  misconduct  by a duly authorized professional disciplinary
agency of another state where the conduct upon  which  the  finding  was
based  would,  if  committed  in New York state, constitute professional
misconduct under the laws of New York state;
  (c)  Having  been  found  guilty  in  an  adjudicatory  proceeding  of
violating  a state or federal statute or regulation, pursuant to a final
decision or determination, and when  no  appeal  is  pending,  or  after
resolution  of  the proceeding by stipulation or agreement, and when the
violation would constitute  professional  misconduct  pursuant  to  this
  (d)  Having his or her license to practice medicine revoked, suspended
or having  other  disciplinary  action  taken,  or  having  his  or  her
application  for  a  license  refused,  revoked  or  suspended or having
voluntarily  or  otherwise  surrendered  his  or  her  license  after  a
disciplinary  action  was  instituted  by a duly authorized professional
disciplinary agency of another state, where the conduct resulting in the
revocation,  suspension  or  other  disciplinary  action  involving  the
license  or  refusal,  revocation  or suspension of an application for a
license or the surrender of the license would, if committed in New  York
state,  constitute  professional  misconduct  under the laws of New York
  (e) Having been found by the commissioner of health to be in violation
of article thirty-three of the public health law;
  10. Refusing to provide professional service to a  person  because  of
such person's race, creed, color or national origin;
  11.  Permitting,  aiding  or  abetting an unlicensed person to perform
activities requiring a license;

  12. Practicing the  profession  while  the  license  is  suspended  or
inactive  as  defined  in  subdivision  thirteen  of section two hundred
thirty of the public health law, or willfully  failing  to  register  or
notify  the  department  of  education  of any change of name or mailing
address, or, if a professional service corporation, willfully failing to
comply  with sections fifteen hundred three and fifteen hundred fourteen
of the business corporation law or, if  a  university  faculty  practice
corporation  wilfully failing to comply with paragraphs (b), (c) and (d)
of section fifteen hundred three and section fifteen hundred fourteen of
the business corporation law;
  13. A willful violation by a licensee of subdivision eleven of section
two hundred thirty of the public health law;
  14.  A  violation  of  section   twenty-eight	  hundred   three-d   or
twenty-eight hundred five-k of the public health law; or
  15.  Failure  to  comply  with an order issued pursuant to subdivision
seven, paragraph (a) of subdivision ten, and  subdivision  seventeen  of
section two hundred thirty of the public health law;
  16.  A willful or grossly negligent failure to comply with substantial
provisions of federal, state,  or  local  laws,  rules,  or  regulations
governing the practice of medicine;
  17. Exercising undue influence on the patient, including the promotion
of  the  sale of services, goods, appliances, or drugs in such manner as
to exploit the patient for the financial gain of the licensee  or  of  a
third party;
  18.  Directly or indirectly offering, giving, soliciting, or receiving
or agreeing to receive, any fee or other  consideration  to  or  from  a
third  party  for  the  referral  of a patient or in connection with the
performance of professional services;
  19. Permitting any person  to  share  in  the  fees  for  professional
services,  other  than: a partner, employee, associate in a professional
firm or corporation, professional subcontractor or consultant authorized
to practice medicine, or a legally authorized trainee  practicing  under
the  supervision  of  a  licensee.  This  prohibition  shall include any
arrangement or agreement whereby the  amount  received  in  payment  for
furnishing  space, facilities, equipment or personnel services used by a
licensee constitutes a percentage of, or is  otherwise  dependent  upon,
the  income  or  receipts  of the licensee from such practice, except as
otherwise provided by law with respect to a facility  licensed  pursuant
to  article twenty-eight of the public health law or article thirteen of
the mental hygiene law;
  20.  Conduct  in  the  practice  of  medicine  which  evidences  moral
unfitness to practice medicine;
  21.  Willfully  making  or filing a false report, or failing to file a
report required by law or by the department of health or  the  education
department,  or  willfully  impeding  or  obstructing  such  filing,  or
inducing another person to do so;
  22. Failing to make available to a patient, upon  request,  copies  of
documents  in  the possession or under the control of the licensee which
have been prepared for and paid for by the patient or client;
  23. Revealing of personally identifiable facts, data,  or  information
obtained  in  a  professional  capacity without the prior consent of the
patient, except as authorized or required by law;
  24. Practicing or offering to practice beyond the scope  permitted  by
law, or accepting and performing professional responsibilities which the
licensee  knows or has reason to know that he or she is not competent to
perform,  or  performing  without  adequate   supervision   professional
services  which  the  licensee  is  authorized to perform only under the

supervision of a licensed professional, except in an emergency situation
where a person's life or health is in danger;
  25.  Delegating  professional  responsibilities  to  a person when the
licensee delegating such responsibilities knows or has  reason  to  know
that  such  person  is  not qualified, by training, by experience, or by
licensure, to perform them;
  25-a. With  respect  to  any  non-emergency  treatment,  procedure  or
surgery  which  is  expected  to  involve  local  or general anesthesia,
failing to disclose to the patient the  identities  of  all  physicians,
except medical residents in certified training programs, podiatrists and
dentists,  reasonably  anticipated  to  be  actively  involved  in  such
treatment, procedure or surgery and to obtain  such  patient's  informed
consent to said practitioners' participation;
  26.	Performing  professional  services  which  have  not  been  duly
authorized by the patient or his or her legal representative;
  27. Advertising or soliciting for patronage that is not in the  public
interest. (a) Advertising or soliciting not in the public interest shall
include,  but  not be limited to, advertising or soliciting that: (i) is
false, fraudulent, deceptive, misleading, sensational, or flamboyant;
  (ii) represents intimidation or undue pressure;
  (iii) uses testimonials;
  (iv) guarantees any service;
  (v) makes any claim relating to professional services or  products  or
the  costs  or  price  therefor  which  cannot  be  substantiated by the
licensee, who shall have the burden of proof;
  (vi)  makes  claims  of  professional  superiority  which  cannot   be
substantiated by the licensee, who shall have the burden of proof; or
  (vii)  offers bonuses or inducements in any form other than a discount
or reduction in an established fee or price for a  professional  service
or product.
  (b)  The  following shall be deemed appropriate means of informing the
public of the availability of professional services:  (i)  informational
advertising not contrary to the foregoing prohibitions; and
  (ii)  the  advertising  in  a  newspaper,  periodical  or professional
directory or on radio or television of fixed prices, or a  stated  range
of prices, for specified routine professional services, provided that if
there is an additional charge for related services which are an integral
part  of  the  overall  service  being  provided  by  the  licensee, the
advertisement  shall  so  state,   and	 provided   further   that   the
advertisement  indicates  the  period  of  time for which the advertised
prices shall be in effect.
  (c)(i) All licensees placing advertisements shall maintain,  or  cause
to  be maintained, an exact copy of each advertisement, transcript, tape
or video tape thereof as appropriate for the medium used, for  a  period
of  one  year  after its last appearance. This copy shall be made avail-
able for inspection upon demand of the department of health;
  (ii) A licensee shall not compensate or give anything of value to rep-
resentatives of the press, radio,  television  or  other  communications
media  in  anticipation  of or in return for professional publicity in a
news item;
  (d)  No  demonstrations,  dramatizations  or	 other	 portrayals   of
professional  practice  shall  be  permitted  in advertising on radio or
  28. Failing to respond within thirty days  to  written  communications
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 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  days  shall
commence  on  the  date of delivery to the licensee, as indicated by the
return receipt;
  29. Violating any term of probation or condition or limitation imposed
on the licensee pursuant to section two hundred  thirty  of  the  public
health law;
  30.  Abandoning or neglecting a patient under and in need of immediate
professional  care,  without  making  reasonable  arrangements  for  the
continuation  of such care, or abandoning a professional employment by a
group practice, hospital, clinic or other health care facility,  without
reasonable  notice  and  under  circumstances which seriously impair the
delivery of professional care to patients or clients;
  31. Willfully harassing, abusing, or  intimidating  a  patient  either
physically or verbally;
  32.  Failing  to  maintain  a record for each patient which accurately
reflects the evaluation and treatment of the patient, provided, however,
that a physician who  transfers  an  original  mammogram  to  a  medical
institution,  or  to a physician or health care provider of the patient,
or to the patient directly, as otherwise provided by law, shall have  no
obligation  under  this  section  to  maintain  the  original  or a copy
thereof. Unless otherwise provided by law, all patient records  must  be
retained  for  at  least  six  years. Obstetrical records and records of
minor patients must be retained for at least six years,  and  until  one
year after the minor patient reaches the age of eighteen years;
  33.  Failing  to exercise appropriate supervision over persons who are
authorized to practice only under the supervision of the licensee;
  34. Guaranteeing that satisfaction or a  cure  will  result  from  the
performance of professional services;
  35.  Ordering  of  excessive  tests,  treatment,  or  use of treatment
facilities not warranted by the condition of the patient;
  36. Claiming or using any secret or special method of treatment  which
the licensee refused to divulge to the department of health;
  37. Failing to wear an identifying badge, which shall be conspicuously
displayed   and	  legible,   indicating	  the  practitioner's  name  and
professional title authorized pursuant to this chapter, while practicing
as an employee or operator of a  hospital,  clinic,  group  practice  or
multiprofessional  facility,  or  at a commercial establishment offering
health services to the public;
  38. Entering into an arrangement or agreement with a pharmacy for  the
compounding   and/or   dispensing   of	 coded	 or   specially	  marked
  39. With respect to all  professional  practices  conducted  under  an
assumed  name,  other  than  facilities  licensed  pursuant  to  article
twenty-eight of the public health law or article thirteen of the  mental
hygiene  law, failing to post conspicuously at the site of such practice
the name and licensure  field  of  all  of  the  principal  professional
licensees  engaged  in  the  practice  at  that  site  (i.e.,  principal
partners, officers or principal shareholders);
  40.  Failing  to  provide  access  by  qualified  persons  to  patient
information  in  accordance  with  the  standards  set  forth in section
eighteen of the public health law as added by chapter 497 of the laws of
  41. Knowingly or willfully performing a complete or partial autopsy on
a deceased person without lawful authority;
  42. Failing to comply with a signed agreement to practice medicine  in
New York state in an area designated by the commissioner of education as

having  a  shortage of physicians or refusing to repay medical education
costs in lieu of such required service, or failing to  comply  with  any
provision  of  a  written  agreement  with the state or any municipality
within  which  the  licensee  has  agreed to provide medical service, or
refusing to repay funds in lieu of  such  service  as  consideration  of
awards  made  by  the  state  or any municipality thereof for his or her
professional education in  medicine,  or  failing  to  comply  with  any
agreement entered into to aid his or her medical education;
  43.	Failing	  to   complete	  forms  or  reports  required  for  the
reimbursement of a patient by a third  party.  Reasonable  fees  may  be
charged	  for	such  forms  or  reports,  but  prior  payment  for  the
professional services to which such forms or reports relate may  not  be
required as a condition for making such forms or reports available;
  44.  In  the  practice  of  psychiatry,  (a) any physical contact of a
sexual nature between licensee and  patient  except  the  use  of  films
and/or  other  audiovisual  aids  with  individuals  or  groups  in  the
development of appropriate responses to overcome sexual dysfunction  and
(b) in therapy groups, activities which promote explicit physical sexual
contact between group members during sessions; and
  45.  In  the  practice of ophthalmology, failing to provide a patient,
upon request,  with  the  patient's  prescription  including  the  name,
address,   and	 signature  of  the  prescriber  and  the  date  of  the
  46. A violation of section two  hundred  thirty-eight  of  the  public
health  law  by  a professional other than a professional subject to the
provisions of paragraph (f) of subdivision one of  section  twenty-eight
hundred five-k of the public health law.
  47.  Failure  to  use  scientifically accepted barrier precautions and
infection control practices as established by the department  of  health
pursuant to section two hundred thirty-a of the public health law.
  * 48. A violation of section two hundred thirty-d of the public health
law or the regulations of the commissioner of health enacted thereunder.
  * NB Effective January 14, 2008