Section 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
  scope;
    3.  Practicing  the  profession  with  negligence  on  more  than  one
  occasion;
    4.  Practicing  the  profession  with gross negligence on a particular
  occasion;
    5. Practicing the  profession  with  incompetence  on  more  than  one
  occasion;
    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
  under:
    (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
  section;
    (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
  state;
    (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,  twenty-eight
  hundred  five-k or subparagraph (ii) of paragraph (h) of subdivision ten
  of section two hundred thirty 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
  television;
    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
  prescriptions;
    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
  1986;
    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
  prescription.
    46. A violation of section  two  hundred  thirty-nine  of  the  public
  health law by a professional.
    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.
    49. Except for good cause shown, failing to provide within one day any
  relevant records or other information requested by the  state  or  local
  department  of  health  with  respect  to  an inquiry into a report of a
  communicable disease as defined in the state sanitary code, or HIV/AIDS.