Melissa M. Zambri, Esq.
Hiscock & Barclay
50 Beaver Street
Albany, New York 12207-2830
518-429-4229
I. Regulation of the Practice of the Health Care Professions
A.
Licensure.
1.
Physicians. The New York State Department of Education licenses physicians under Article 131 of the New York State Education Law. http://www.op.nysed.gov/article131.htm . The practice of medicine is defined as "diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition." New York State Education Law §6521. A state board for medicine is established by statute, as are the requirements for licensure. New York State Education Law §§6523-24. http://www.op.nysed.gov/medlic.htm . For more information on the state board for medicine, see section (B) below. The application for licensure may be obtained on the New York State Department of Education website. http://www.op.nysed.gov/medforms.htm . Article 131 also sets forth the opportunity for a limited permit in certain circumstances. New York State Education Law §6525. In addition, the statute sets forth that some persons are exempt from the requirement of licensure. New York State Education Law §6526. New York State Department of Education regulations govern the study of medicine. http://www.op.nysed.gov/part60.htm .
2.
Physician Assistants and Specialist Assistants. Physician assistants and specialist assistants are licensed under Article 131-b of the New York State Education Law. http://www.op.nysed.gov/article131-b.htm . A physician assistant may perform medical services, but only when under the supervision of a physician and only when the acts and duties assigned to him or her are within the scope of practice of the supervising physician. New York State Education Law §6542(1). A specialist assistant may perform medical services, but only when under the supervision of a physician and only when the acts and duties assigned to him or her are related to the designated medical specialty for which he or she is registered and are within the scope of practice of his or her supervising physician. New York State Education Law §6542(2). Supervision must be continuous but does not necessarily require the physical presence of the supervising physician at the time and place where such services are performed. New York State Education Law §6542(3). No physician may employ or supervise more than two physician assistants and two specialist assistants in his or her private practice. New York State Education Law §6542(4). A hospital may employ physician assistants or specialist assistants with no numerical limitation provided that they work under the supervision of a physician designated by the hospital and not beyond the scope of practice of such physician. New York State Education Law §6542(5). The statute sets forth the opportunity for a limited permit in certain circumstances. New York State Education Law §6548. For information regarding registration of physician assistants, see http://www.op.nysed.gov/part60.htm .
3.
Other Licensed Medical Professionals in New York State. Various other medical professionals are licensed in New York State by the Education Department. For information on those professions, please refer to the following. Where an article is noted below, it refers to an article in the New York State Education Law.
State Boards for the Professions. The Board of Regents, http://www.nysed.gov/Regents.html , on the recommendation of the Commissioner of Education, appoints a State Board for each licensed profession to advise and assist the Board of Regents and the State Education Department on matters of professional regulation. The Board of Regents also appoints a Committee for Professional Assistance to advise them on matters relating to practice by professional licensees with alcohol or other drug abuse problems. For more information, see section (F) below. The State Boards for the Professions and the Committee for Professional Assistance are comprised of professional members and one or more representatives of the general public. For information on the composition of each board and contact information, see http://www.op.nysed.gov/bdcomp.htm and http://www.op.nysed.gov/bdmemb.htm
C.
Complaint Procedures.
1.
Physicians, Physician Assistants and Specialist Assistants. The New York State Department of Health Office of Professional Medical Conduct (OPMC) is responsible for accepting and investigating complaints about physicians, physician assistants and specialist assistants. The discipline process for physicians, physician assistants and specialist assistants is governed by New York State Public Health Law §230. http://www.health.state.ny.us/nysdoh/opmc/laws/230.htm . For more information, see section (D) below. Complaint forms are located at http://www.health.state.ny.us/nysdoh/opmc/opmc.htm . For more information on the complaint process, see http://www.health.state.ny.us/nysdoh/opmc/understd2.htm . The New York State Department of Health also has a fraud complaint hotline. For more information, see http://www.health.state.ny.us/nysdoh/opmc/fraud.htm .
2.
Other licensed medical professionals. The Office of Professional Discipline of the New York State Department of Education receives and investigates complaints regarding the other licensed medical professions. For more information, see http://www.op.nysed.gov/opdbroc.htm . Complaint forms are located at http://www.op.nysed.gov/complain.htm .
Investigation can include writing to the licensee, subpoenaing records, interviewing potential witnesses and consulting experts.
b.
Where the investigation will lead to a referral to an investigation committee, OPMC must offer an interview. The licensee may have counsel present. New York State Public Health Law §230(10)(a)(iii).
c.
After completion of the investigation and within ninety (90) days of the interview, the OPMC investigator presents the case to an investigation committee. The licensee is given written notice of any issues identified subsequent to the interview. The licensee may submit written comments or an expert opinion to OPMC at any time. New York State Public Health Law §230(10)(a)(iii). The investigation committee is empowered to issue a recommendation as to how the complaint should be addressed. The director of OPMC after receiving the recommendation makes a decision as to the next steps. New York State Public Health Law §230(10)(a)(iv).
d.
The Commissioner of the Department of Health may summarily suspend a licensee prior to a hearing where the licensee poses an imminent danger to the health of the people (or receives a felony conviction). New York State Public Health Law §230(12). In this case, a hearing will commence within ten (10) days.
e.
An administrative warning can be issued or a consultation required for misconduct of a minor or technical nature. These are confidential and do not constitute an adjudication of guilt. If allegations about similar misconduct by the same licensee arise in the future, these matters may be reopened and further proceedings instituted. New York State Public Health Law §230(10)(m).
f.
Where an investigative committee recommends the issuance of a formal statement of charges and the OPMC director consults with the executive secretary, accepts the recommendation, and a hearing is determined to be warranted, a New York State Department of Health attorney will be assigned to prosecute the case. New York State Public Health Law §230(10)(a)(iv). The licensee will be served with formal charges and a notice of hearing. A hearing must commence within sixty (60) days of the service of the charges. An adjournment of the initial hearing date may be granted if either party can show good cause. New York State Public Health Law §230(10)(f).
g.
A three member panel (two physicians and one lay person) renders a determination and determines any penalty to be imposed. An administrative law judge from the New York State Department of Health rules on all legal motions and drafts the hearing panel's determination. New York State Public Health Law §230(10)(e). The findings, conclusions, determination and the reasons for the determination of the committee are served upon the licensee and OPMC within sixty (60) days of the last day of the hearing. New York State Public Health Law §230(10)(h).
h.
Penalties can include, under New York State Public Health Law §230-a:
1.
Censure and reprimand
2.
Revocation
3.
Suspension, wholly or partially
4.
Limitation on the license or any issuance of a further license
5.
Annulment of the license
6.
Maximum fine of $10,000 for each specification of charges for which the licensee is found to be guilty
7.
Additional education and/or training
8.
Public service
i.
Appeals may be made to an administrative review board. New York State Public Health Law §230-c. http://www.health.state.ny.us/nysdoh/opmc/laws/arb.htm . Judicial appeals may be made under Article 78 of the New York State Civil Practice Laws and Rules. New York State Public Health Law §230-c(5).
Complaints may be made by any person to the New York State Department of Education. New York State Education Law §6510(1)(a).
b.
The Department of Education investigates and refers the results to a professional conduct officer designated by the Board of Regents. Such officer decides how the complaint should be further addressed. New York State Education Law §6510(1)(b).
c.
Unless the matter is terminated by an administrative warning, the Department of Education prepares charges, which are served with a notice of hearing at least fifteen (15) days before the hearing. New York State Education Law §6510(1)(c-d).
d.
Where the violation is of a minor or technical nature, the matter may be terminated by an administrative warning. Such warning is confidential and is not considered an adjudication of guilt. However, in the event of similar misconduct by the same licensee, the matter may be reopened and further proceedings may be instituted. New York State Education Law §6510(2).
e.
The hearing panel consists of three or more members, at least two of whom are members of the relevant state board for the profession and at least one public representative. An attorney for the New York State Department of Education presents the case for the Department. The hearing panel issues a written report which includes findings of fact, a determination as to guilt on each charge, and a recommendation of any penalty to be imposed. New York State Education Law §6510(3). The Board of Regents makes the final determination in the matter. New York State Education Law §6510(4).
f.
Penalties can include, under New York State Education Law §6511:
1.
Censure and reprimand
2.
Revocation
3.
Suspension, wholly or partially
4.
Limitation on the license or any issuance of a further license
5.
Annulment of the license
6.
Maximum fine of $10,000 for each specification of charges for which the licensee is found to be guilty
7.
Additional education and/or training
8.
Public service
g.
Judicial appeals may be made under Article 78 of the New York State Civil Practice Laws and Rules. New York State Education Law §6510(5).
E.
Professional Misconduct and Unprofessional Conduct under New York State Law
Practicing fraudulently or beyond the authorized scope
c.
Negligence on more than one occasion
d.
Gross negligence on a particular occasion
e.
Incompetence on more than one occasion
f.
Gross incompetence
g.
Practicing while impaired by alcohol, drugs, physical disability or mental disability
h.
Being a habitual user of alcohol or narcotics (except where such narcotics are part of an approved therapeutic regimen which does not impair the ability to practice) or having a psychiatric condition which impairs the ability to practice
i.
Criminal conviction, a finding of guilty of professional misconduct in another state or having a license in another state revoked or suspended, or being found guilty in an adjudicatory proceeding of violating a state or federal statute or regulation, where the conduct would constitute professional misconduct in New York, or having been found by the Commissioner of the Department of Health to be in violation of Article 33 of the New York State Public Health Law, dealing with controlled substances. http://caselaw.lp.findlaw.com/nycodes/c91/a158.html
j.
Refusing to provide services because of race, creed, color or national origin
k.
Permitting, aiding or abetting an unlicensed person to perform licensed activities
l.
Practicing with a suspended or inactive license or failing to provide regulators with certain information required to engage in practice
Failing to report patient abuse under New York State Public Health Law §2803-d or necessary information to a hospital prior to granting or renewing privileges under New York State Public Health Law §2805-k
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
q.
Exercising undue influence on a patient, including the promotion of the sale of services, goods, appliances, or drugs in such a manner as to exploit the patient for financial gain of the licensee or of a third party
r.
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
s.
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
t.
Conduct in the practice of medicine that evidences moral unfitness
u.
Willfully making or filing a false report, or failing to file a report required by law or by the New York State Departments of Health or Education, or willfully impeding or obstructing such filing or inducing another person to do so
v.
Failing to make available to a patient, upon request, a copy of the patient's chart
w.
Revealing 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
x.
Practicing beyond the scope permitted by law, or accepting responsibilities that the licensee knows he or she is not competent to perform, or performing services that require supervision without supervision, except in an emergency situation
y.
Inappropriate delegating
z.
Failing to inform a patient of those that will be involved in their care where anesthesia is to be used and failing to receive consent from the patient to those that will be involved in their care
aa.
Performing services not authorized by the patient
bb.
Advertising or soliciting not in the public interest
cc.
Failing to respond to a request from the Department of Health and/or failing to make available records
dd.
Violating a term of probation or condition or limitation on the licensee
ee.
Abandoning or neglecting a patient, without making reasonable arrangements for the continuation of such care
ff.
Verbal or physical harassment, abuse or intimidation of a patient
gg.
Improper recordkeeping
hh.
Inappropriate supervision
ii.
Guaranteeing satisfaction or cure
jj.
Ordering excessive treatments or tests
kk.
Using a secret or special method of treatment which the licensee refuses to divulge to the Department of Health
ll.
Failing to wear an ID badge
mm.
Entering into inappropriate arrangements with a pharmacy
nn.
Failing to post the name and licensure of the principal licensees at a site
oo.
Failing to provide access by qualified persons to patient information
pp.
Performing an autopsy without authority
qq.
Failing to comply with a signed agreement to provide services in an underserved area or for a municipality or refusing to pay medical education costs in lieu of such required service
rr.
Failing to complete reimbursement forms
ss.
Physical contact of a sexual nature in the practice of psychiatry or activities which promote explicit physical sexual contact amongst group members
tt.
Improper referrals under section 238 of the New York State Public Health Law
Arrears in payment of child support or failing to comply with paternity or child support proceedings under sections 6509-b and 6509-c of the New York State Education Law, where appropriate
xx.
In ophthalmology, failing to provide an appropriate prescription to a patient.
2.
Other Licensed Medical Professionals. New York State Education Law §6509; 8 N.Y.C.R.R. §29.1; 8 N.Y.C.R.R. §29.2. Misconduct includes:
a.
Obtaining a license fraudulently
b.
Practicing fraudulently, beyond the authorized scope, with gross incompetence, with gross negligence on a particular occasion or negligence or incompetence on more than one occasion
c.
Practicing while impaired by alcohol, drugs, physical disability, or mental disability
d.
Being habitually drunk or being dependent upon or a habitual user of narcotics
e.
Criminal conviction, a finding of guilty of professional misconduct in another state or having a license in another state revoked or suspended, where the conduct would constitute professional misconduct in New York, or having been found by the Commissioner of the Department of Health to be in violation of Article 33 of the New York State Public Health Law, dealing with controlled substances. http://caselaw.lp.findlaw.com/nycodes/c91/a158.html
f.
Refusing to provide services because of race, creed, color or national origin
g.
Permitting, aiding or abetting an unlicensed person to perform licensed activities
h.
Practicing with a suspended or inactive license or failing to provide regulators with certain information required to engage in practice
i.
Failing to report patient abuse under New York State Public Health Law §2803-d or necessary information to a hospital prior to granting employment or access under New York State Public Health Law §2805-k
j.
Violating section 6505-b of the New York State Education Law, dealing with coursework or training in infection control practices
k.
Fee splitting under section 6509-a of the New York State Education Law
l.
Arrears in payment of child support or failing to comply with paternity or child support proceedings under sections 6509-b and 6509-c of the New York State Education Law, where appropriate
m.
A willful or grossly negligent failure to comply with substantial provisions of federal, state or local laws, rules or regulations governing the practice of the licensed profession
n.
Exercising undue influence on the patient, including the promotion of the sale of services, goods, appliances, or drugs in such a manner as to exploit the patient for financial gain of the licensee or of a third party
o.
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
p.
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 in the same profession, or a legally authorized trainee practicing under the supervision of a licensee
q.
Conduct in the practice of a profession that evidences moral unfitness
r.
Willfully making or filing a false report, or failing to file a report required by law or by the New York State Department of Education, or willfully impeding or obstructing such filing or inducing another person to do so
s.
Failing to make available to a patient, upon request, a copy of the patient's chart
t.
Revealing 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
u.
Practicing beyond the scope permitted by law, or accepting responsibilities that the licensee knows he or she is not competent to perform, or performing services that require supervision without supervision, except in an emergency situation
v.
Inappropriate delegating
w.
Performing services not authorized by the patient
x.
Advertising or soliciting not in the public interest
y.
Failing to respond to a request from the Departments of Education or Health and/or failing to make available records
z.
Violating a term of probation or condition or limitation on the licensee
aa.
Abandoning or neglecting a patient, without making reasonable arrangements for the continuation of such care
bb.
Verbal or physical harassment, abuse or intimidation of a patient
cc.
Improper recordkeeping
dd.
Violating a term of probation or condition or limitation on the licensee
ee.
Guaranteeing satisfaction or cure
ff.
Ordering excessive treatments or tests
gg.
Using a secret or special method of treatment which the licensee refuses to divulge to the State Board for the profession
hh.
Failing to wear an ID badge
ii.
Entering into inappropriate arrangements with a pharmacy
jj.
Failing to post the name and licensure of the principal licensees at a site
kk.
Inappropriately using the phrase "doctor"
ll.
Issuing prescriptions inappropriately
mm.
Failing to follow proper infection control practices
nn.
Failing to provide access by qualified persons to patient information
oo.
In addition, for dentists or dental hygienists, 8 N.Y.C.R.R. §29.5
pp.
In addition, for pharmacy, 8 N.Y.C.R.R. §29.7
qq.
In addition, for optometry, 8 N.Y.C.R.R. §29.8
rr.
In addition, for ophthalmic dispensing, 8 N.Y.C.R.R. §29.9
Mandatory Reporting. Under subsection 11 of § 230 of the New York State Public Health Law, the Medical Society of the State of New York, the New York State Osteopathic Society or any district osteopathic society, any statewide medical specialty society or organization, every county medical society, licensed physician, physician and specialist assistant, certified dental assistant, pharmacist, and nurse, and the chief executive officer, the chief of the medical staff and the chairperson of each department of every institution established under Article 28 of the New York State Public Health Law, Article 44 of the New York State Public Health Law or Article 43 of the New York State Insurance Law shall report any information which reasonably appears to show that a physician, physician assistant or specialist assistant is guilty of professional misconduct. Such reports are confidential and are not admitted into evidence in administrative or judicial proceedings except that it may be used as the basis to begin an investigation and may be used to develop further information.
2.
Immunity from Civil Damages Stemming from Report. Any person, organization, institution, insurance company, or osteopathic or medical society that reports or provides information to the board in good faith, and without malice shall not be subject to civil damages or other relief as the result of such report. New York State Public Health Law § 230(11)(b).
3.
Exceptions to Mandatory Reporting. Physicians are not responsible to report information discovered solely as a result of participation in a properly conducted mortality and/or morbidity conference, departmental meeting or a medical or tissue committee constituted pursuant to the bylaws of a hospital where certain criteria is met. New York State Public Health Law § 230(11)(c).
4.
Uncertainty as to Whether a Report is Required. Where a physician or administrator of a hospital established pursuant to Article 28 of the New York State Public Health Law is reasonably unable to determine whether a report is required, the physician or administrator may pursue instruction under New York State Public Health Law § 230(11)(d).
5.
Information Discovered Through Treatment of Physician. No physician is required to report any information to the board which such physician has learned solely as a result of rendering treatment to another physician. New York State Public Health Law § 230(11)(e).
6.
Professional Misconduct for Failure to Report. It is professional misconduct for a licensee to willfully violate subsection 11 of § 230 of the New York State Public Health Law. New York State Education Law § 6530(13).
G.
Other Required Reports.
1.
National Reporting Banks.
a.
National Practitioner Data Bank (NPDB) www.npdb-hipdb.com ; 45 C.F.R. pt. 60
1.
Certain entities must report the NPDB (these entities include state licensing boards, hospitals, other health care entities, professional societies, and entities making payments as a result of medical malpractice actions or claims).
2.
These entities must report:
i.
a malpractice payment;
ii.
adverse action against a physician's license;
iii.
adverse clinical privilege actions;
iv.
adverse professional membership actions; and
v.
any revisions to adverse actions.
3.
45 C.F.R. § 60.11 discusses the requesting of information from the NPDB.
b.
Healthcare Integrity and Protection Data Bank (HIPDB). www.npdb-hipdb.com ; 45 C.F.R. pt. 61.
1.
Federal and state agencies that monitor health care entities, prosecutors and health plans must report.
2.
Reporting entities must report all final adverse actions imposed against health care providers, suppliers and practitioners and any revisions to such final actions.
3.
Government agencies must report:
i.
suspension or revocation of a state or federal license;
ii.
a reprimand, censure or probation imposed;
iii.
voluntary surrender or certain nonrenewals of a state or federal license;
iv.
revocation or suspension of a contract or certification agreement to participate in a federal or state health care program;
v.
negative action that is public information;
vi.
criminal convictions related to the delivery of health care items or services; and
vii.
temporary or permanent exclusions from federal or state health care programs.
4.
Federal and state agencies and health plans must report:
i.
civil judgments imposed on providers, suppliers or practitioners that are related to the delivery of health care items or services; and
ii.
other adjudicated actions or decisions that affect or could affect the delivery of or payment for a health care item or service.
5.
45 C.F.R. § 61.12 discusses the requesting of information from the HIPDB.
2.
New York State Requirements.
a.
Bullet or gunshot wounds, powder burns and knife injuries - report to the police in the city, town or village. New York State Penal Law § 265.25.
b.
Second- and third-degree burns on 5 percent or more of the body, burns to the upper respiratory tract or laryngeal edema caused by super-heated air, and burns that are likely to or may result in death - report to the office of fire prevention and control. New York State Penal Law § 265.26.
c.
Diseases and medical conditions
1.
Alzheimer's disease - report to the New York State Department of Health (New York State Public Health Law § 2001);
2.
Birth defects and genetic and allied diseases - report to the New York State Department of Health (New York State Public Health Law § 2733);
3.
Cancer - report to the New York State Department of Health (New York State Public Health Law § 2401);
4.
Addicts or habitual users of narcotic drugs - report to the New York State Department of Health (New York State Public Health Law § 3372);
5.
Aids and HIV infection - report to the New York State Department of Health (New York State Public Health Law § 2130);
6.
Communicable diseases - report to the New York State Department of Health (10 N.Y.C.R.R. §§ 2.1, 2.10); and
7.
Recovery from tuberculosis - report to proper health official (New York State Public Health Law § 2225).
Information available to the public. Physicians must report certain information to the New York State Department of Health. New York State Public Health Law § 2995-a.
2.
Information available from the profile:
i.
name of medical school and dates of graduation;
ii.
graduate medical education;
iii.
current specialty board certification and date of certification;
iv.
date admitted to practice in New York State;
v.
name of hospitals where the physician has privileges;
vi.
appointments to medical school faculties;
vii.
any translating services available at primary practice location;
viii
any participation in a government-financed health insurance program;
ix.
any criminal convictions in the last ten years;
x.
any professional disciplinary action in the last ten years;
any limitation on license;
any loss or involuntary restriction of or a failure to renew hospital privileges within the last 10 years, for reasons related to the quality of patient care, or a resignation in lieu of a disciplinary action related to the quality of patient care; and
with certain limitations, any medical malpractice court judgments and arbitration awards and all malpractice settlements within the most recent 10 years.
3.
Optional information from the profile:
i.
Peer reviewed medical publications written in the last ten years;
ii.
Professional or community service activities or awards;
iii.
The location of the physician's primary practice and the names of any licensed physicians in the physician's group practice; and
iv.
Health care plan affiliations.
H.
Regulation on Advertising.
1.
New York State Education Law § 6530(27)(a). It is professional misconduct for a physician, physician assistant or specialist assistant to advertise or solicit for patronage where it is not in the public interest. This includes, but is not limited to, advertising or soliciting that:
a.
Is false, fraudulent, deceptive, misleading, sensational, or flamboyant;
b.
Represents intimidation or undue pressure;
c.
Uses testimonials;
d.
Guarantees any service;
e.
Makes any claim relating to professional services or products or the cost or price therefor which cannot be substantiated by the licensee, who shall have the burden of proof;
f.
Makes claims of professional superiority which cannot be substantiated by the licensee, who shall have the burden of proof; or
g.
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.
2.
Appropriate Advertising by Physicians, Physician Assistants and Specialist Assistants. The following is deemed appropriate advertising under New York State Education Law § 6530(27)(b):
a.
Informational advertising not contrary to the foregoing prohibitions; and
b.
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.
3.
Other Rules Regarding Physician, Physician Assistant and Specialist Assistant Advertising. 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 available for inspection upon demand of the New York State Department of Health. A licensee shall not compensate or give anything of value to representatives of the press, radio, television or other communications media in anticipation of or in return for professional publicity. No dramatizations or other portrayals of professional practice shall be permitted in advertising on radio or television. New York State Education Law § 6530(27)(c-d).
4.
8 N.Y.C.R.R. § 29.1(b)(12). It shall be unprofessional conduct for any other licensed medical professional not addressed above to advertise or solicit for patronage where it is not in the public interest. This includes, but is not limited to, advertising or soliciting that:
a.
Is false, fraudulent, deceptive or misleading;
b.
Guarantees any service;
c.
c. Makes any claim relating to professional services or products or the cost or price therefor which cannot be substantiated by the licensee, who shall have the burden of proof;
d.
d. Makes claims of professional superiority which cannot be substantiated by the licensee, who shall have the burden of proof; or
e.
Offers bonuses or inducements in any form other that a discount or reduction in an established fee or price for a professional service or product.
5.
Appropriate Advertising for Other Licensed Professionals. The following is deemed appropriate advertising under 8 N.Y.C.R.R. § 29.1(b)(12)(ii):
a.
Informational advertising not contrary to the foregoing prohibitions; and
b.
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.
6.
Other Rules Regarding Other Licensed Medical Professional Advertising. All licensees placing advertisements shall maintain, or cause to be maintained, an exact copy of each advertisement, transcript, tape or videotape thereof as appropriate for the medium used, for a period of one year after its last appearance. This copy shall be made available for inspection upon demand of the New York State Education Department. A licensee shall not compensate or give anything of value to representatives of the press, radio, television or other communications media in anticipation of or in return for professional publicity in a news item. Testimonials, demonstrations, dramatizations, or other portrayals of professional practice are permissible provided that they otherwise comply with the rules of professional conduct and further provided that the following conditions are satisfied:
a. the patient or client expressly authorizes the portrayal in writing;
b. appropriate disclosure is included to prevent any misleading information or imagery as to the identity of the patient or client;
c. reasonable disclaimers are included as to any statements made or results achieved in a particular matter;
d. the use of fictional situations or characters may be used if no testimonials are included; and
e. fictional client testimonials are not permitted.
7.
The Medical Society of the State of New York's Guidance on Advertising. Physicians may ethically engage in advertising or solicitation so long as the communication is not materially false or deceptive. Physicians may advertise or solicit using the news media, directories, announcements, professional cards, office signs or any other medium or means. The use of intimidation or undue pressure in connection with the uninvited, in person solicitation of actual or potential patients, who because of their particular circumstances are vulnerable to undue influence, is unethical.
8.
Example of Inappropriate Physician Advertising. For an example, see Saunders v. Administrative Review Board for Professional Medical Conduct, 265 A.D.2d 695 (3d Dep't 1999).
I.
Impaired Professionals.
1.
The New York State Education Department Office of the Professions' Professional Assistance Program (PAP).
a.
PAP assists professionals who have substance abuse problems, but who have not harmed patients or clients. Professionals voluntarily surrender their licenses while receiving treatment.
b.
PAP panels interview applicants for admission to PAP and consider petitions for license restoration. Meetings are informal and confidential.
c.
Criteria for admission to PAP include:
i.
total abstinence from all mood-altering substances including alcohol;
ii.
temporary voluntary surrender of the professional license;
iii.
participation in treatment at an agency approved by PAP; and
iv.
an agreement to be monitored by PAP for at least two years after reinstatement of the license. Monitoring includes toxicology reports, work-site reports, and random observed drug screens at specified frequencies.
