Albany – Today, the New York State Senate passed
S.485, sponsored by Senator Liz Krueger, which would require certain health care providers to notify current and new patients that the provider has been placed on probation, and would permit patients to decline care from that provider without penalty if they choose. The bill is carried in the Assembly by Assembly Member Patricia Fahy.
"When we seek medical care, we are granting doctors and other providers intimate access to our bodies and the details of our lives," said
Senator Krueger. "It is critical that we be able to have confidence not only in our providers, but in the systems that exist to ensure our providers are worthy of our trust. Transparency and disclosure are key to allowing patients to make fully informed decisions about their own medical care."
The New York State Education Department (NYSED) and the New York State Department of Health (NYSDOH) have procedures in place to investigate reports of professional misconduct as well as to determine appropriate disciplinary measures for licensed health care providers. These procedures are designed to protect New Yorkers from licensee misconduct. However, in recent years cases have come to light of providers falling through the cracks in the current system, including
the story of a physician licensed in New York who, following multiple allegations of sexual misconduct with patients, violated his probationary terms with unsuspecting patients by examining female patients without a chaperone and committing additional acts of sexual misconduct. NYSED and NYSDOH post information on the license status of health care providers on their websites; however, not all New Yorkers have access to the internet, and most are likely unaware that this information is available.
S.485 would further protect New Yorkers by requiring that licensees who are on probation for specified reasons provide notification of their probationary status prior to the first visit of current and new patients following the probationary order. It also stipulates that patients and patients' insurance companies cannot be charged for appointments that are canceled upon being provided with the disclosure.
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Provisions of S.485: Requires designated health care professionals (licensees) to provide disclosure that they have been placed on probation to current and new patients.
A licensee shall provide probation disclosure under the following circumstances:
1. The licensee has been placed on probation, as ordered by the Board of Regents, the Office of Professional Misconduct, or the court for any of the following:
- gross negligence or gross incompetence;
- repeated negligent acts involving a departure from the standard of care with multiple patients;
- drug or alcohol abuse that threatens to impair a licensee's ability to render patient care safely, including practicing under the influence of drugs or alcohol;
- felony or misdemeanor conviction arising from or occurring during patient care or treatment; or
- mental illness or other cognitive impairment that impedes a licensee's ability to safely render patient care.
2. The applicable state board of regents and/or office of professional misconduct, or the court ordered any of the following in conjunction with placing the licensee on probation:
- a third-party chaperone shall be present when the licensee provides direct care to examines patients as a result of sexual misconduct;
- the licensee shall submit to drug testing as a result of drug or alcohol abuse; and/or
- the licensee shall have a monitor.
3. The licensee has not successfully completed a training program or any associated examinations required by the board of regents and/or office of professional misconduct, or the court as a condition of probation.
4. The licensee has been on probation more than once.
Probation notification must be provided unless in the health care professional’s judgment:
- An emergency exists, and
- The person is in immediate need of medical attention, and
- An attempt to secure consent would result in delay of treatment which would increase the risk to such person’s life or health (this includes private-practice/office, ambulatory, and in-patient/out-patient hospital settings), OR
- The patient is incapacitated and the patient’s guardian, health care agent, or health care proxy is not reasonably available.
The probation disclosure can be provided to:
- the patient
- the patient's guardian
- the patient’s health care surrogate (must be an adult and can be the patient's child, parent, sibling, spouse, or close friend), or
- the patient’s health care agent (health care proxy agent)
The patient, or the patient’s guardian, health care surrogate, or health care agent can decide to decline direct patient care upon receiving the probation disclosure. If direct patient care is declined, neither the patient nor the patient’s insurance provider may be charged for the appointment.
Any licensee who violates these provisions are subject to a financial penalty of up to $2000. Subsequent, willful violations will cause a licensee’s license to be suspended for a period of time to be determined by the Board of Regents.
These provisions apply to any person licensed to practice the following health care professions, and who provides direct patient care, listed under Title 8 of the State Education Law:
- medicine
- physician assistants
- specialist assistants
- chiropractic
- dentistry and dental hygiene
- licensed perfusionists
- physical therapy and physical therapist assistants
- pharmacy
- registered pharmacy technicians
- nursing
- professional midwifery practice
- podiatry
- optometry
- psychology
- social work
- massage therapy
- occupational therapy
- dietetics and nutrition
- speech-language pathologists and audiologists
- acupuncture
- athletic trainers
- mental health practitioners
- respiratory therapists and respiratory therapy technicians
