Under New York law, provisions relating to regulation of physicians are provided under NY CLS Educ §§ 6520 through NY CLS Educ §§ 6520 6529. NY CLS Educ § 6521 defines the practice of medicine to include diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition.
New York statute stipulates that only a person licensed or otherwise authorized shall practice medicine or use the title “physician”[i]. NY CLS Educ § 6524 enumerates the requirements for a professional license. In order to qualify for a license as a physician, an applicant shall received an education, including a degree of doctor of medicine, “M.D.”, or doctor of osteopathy, “D.O.”, or equivalent degree in accordance with the commissioner’s regulations and shall have experience satisfactory to the board and in accordance with the commissioner’s regulations[ii]. The applicant must pass an examination in accordance with the commissioner’s regulations. The applicant must be at least twenty-one years of age. However, the commissioner may waive the age requirement for applicants who have attained the age of eighteen and will be in a residency program until the age of twenty-one[iii].
The applicant shall be a U.S. citizen or an alien lawfully admitted for permanent residence in the U.S. The board of regents may grant a three year waiver for an alien physician to practice in a medically underserved area, except that the board may grant an additional extension not to exceed six years to an alien physician to enable him/her to secure citizenship or permanent resident status, provided such status is being actively pursued. It is further provided that the board may grant an additional three year waiver, and at its expiration, an extension for a period not to exceed six additional years, for the holder of an H-1b visa, an O-1 visa, or an equivalent or successor visa[iv].
In addition, the applicant must be of good moral character. Every applicant shall pay a fee of 260 dollars for admission to a department conducted examination and for an initial license, a fee of 175 dollars for each reexamination, a fee of 135 dollars for an initial license for persons not requiring admission to a department conducted examination, a fee of 570 dollars for any biennial registration period commencing August 1, 1996 and thereafter[v].
A physician who practices medicine without compensation or the expectation or promise of compensation is exempted from the fee requirement. However, a nominal payment solely to enable the physician to be considered an employee of a health care provider, or providing liability coverage to the physician relating to the services provided shall not be considered as compensation[vi].
The board may issue a limited permit to a person who fulfills all requirements for a license as a physician except those relating to the examination and citizenship or permanent residence in the U.S. or a foreign physician who holds a standard certificate from the educational council for foreign medical graduates or who has passed an examination satisfactory to the state board for medicine and in accordance with the commissioner’s regulations[vii]. A limited permit may also be granted to a foreign physician or a foreign intern who is on a non-immigration visa for the continuation of medical study, pursuant to the exchange student program of the U.S. department of state. A limited licensee can practice only under the supervision of a licensed physician and only in a public, voluntary, or proprietary hospital. A limited permit shall be valid for two years and may be renewed biennially at the discretion of the department. The fee for each limited permit and for each renewal shall be one hundred five dollars[viii].
According to NY CLS Educ § 6526, the following persons under the following limitations may practice medicine within the state without a license:
- Any physician who is employed as a resident in a public hospital, provided such practice is limited to such hospital and is under the supervision of a licensed physician;
- Any physician who is licensed in a bordering state and who resides near a border of this state, provided such practice is limited in this state to the vicinity of such border and provided such physician does not maintain an office or place to meet patients or receive calls within New York;
- Any physician who is licensed in another state or country and who is meeting a physician licensed in New York, for purposes of consultation;
- Any physician who is licensed in another state or country, who is visiting a medical school or teaching hospital in New York to receive medical instruction for a period not to exceed six months or to conduct medical instruction;
- Any physician who is authorized by a foreign government to practice in relation to its diplomatic, consular or maritime staffs;
- Any commissioned medical officer who is serving in the U.S. armed forces or public health service or any physician who is employed in the U.S. Veterans Administration;
- Any intern who is employed by a hospital and who is a graduate of a medical school in the U.S. or Canada; or
- Any medical student who is performing a clinical clerkship or similar function in a hospital and who is matriculated in a medical school which meets standards satisfactory to the department, provided such practice is limited to such clerkship or similar function in such hospital.
- Any dentist or dental school graduate eligible for licensure in New York who administers anesthesia as part of a hospital residency program established for the purpose of training dentists in anesthesiology[ix].
NY CLS Educ § 6528 specifies the eligibility criteria for licensure for foreign medical graduates. Accordingly, an individual who at the time of his/her enrollment in a medical school outside the U.S. is a resident of the U.S. shall be eligible for licensure in New York if s/he has satisfied the requirements of NY CLS Educ § 6524 (1) (5) (6) (7) and (8) and has studied medicine in a medical school located outside the U.S. which is recognized by the World Health Organization. Such an applicant must have completed all of the formal requirements of the foreign medical school except internship and/or social service and has attained a score satisfactory to a medical school approved by the Liaison Committee on Medical Education on a qualifying examination acceptable to the state board for medicine, and has satisfactorily completed one academic year of supervised clinical training under the direction of such medical school. In addition, such an applicant must have completed the post-graduate hospital training required by the Board of all applicants for licensure and has passed the examination required by the Board of all applicants for licensure[x].
Satisfaction of the requirements of paragraphs (1), (2), and (3) of subdivision (a) of NY CLS Educ § 6528 shall be in lieu of the completion of any foreign internship and/or social service requirements, and no such requirements shall be a condition of licensure as a physician in New York. It is to be noted that satisfaction of the requirements of paragraphs (1), (2), and (3) of subdivision (a) of this section shall be in lieu of certification by the Educational Council for Foreign Medical Graduates, and such certification shall not be a condition of licensure as a physician in New York for candidates who have completed the requirements of subdivision (a) of NY CLS Educ § 6528.
Moreover, a document granted by a foreign medical school which is recognized by the World Health Organization issued after the completion of all the formal requirements except internship and/or social service shall, upon certification by such medical school of satisfactory completion by the concerned person, be deemed the equivalent of a degree of doctor of medicine for purposes of licensure and practice as a physician in New York[xi].
NY CLS Educ § 6530 specifies actions amounting to professional misconduct and includes the following:
- Obtaining the license fraudulently and practicing the profession fraudulently;
- Practicing the profession with negligence, gross negligence, incompetence or gross incompetence;
- Practicing the profession while impaired by alcohol, drugs, physical disability, or mental disability;
- Drug abuse or alcoholism or having a psychiatric condition which impairs the licensee’s ability to practice;
- Conviction for a crime under New York state law or federal law or the law of another jurisdiction and which, if committed within New York, would have constituted a crime under New York state law;
- 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;
- Refusing to provide professional service to a person because of such person’s race, creed, color or national origin;
- Permitting, aiding or abetting an unlicensed person to perform activities requiring a license or practicing the profession while the license is suspended or inactive;
- A willful violation by a licensee of subdivision eleven of section two hundred thirty of the public health law;
- 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;
- 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;
- Illegal fee sharing;
- Conduct in the practice of medicine which evidences moral unfitness to practice medicine;
- 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;
- 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;
- 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;
- Practicing or offering to practice beyond the scope permitted by law;
- Delegating professional responsibilities to an unqualified person;
- False or fraudulent advertising;
- 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;
- Abandoning or neglecting a patient under and in need of immediate professional care, without making reasonable arrangements for the continuation of such care or willfully harassing, abusing, or intimidating a patient either physically or verbally;
- Failing to exercise appropriate supervision over persons who are authorized to practice only under the supervision of the licensee;
- Ordering of excessive tests, treatment, or use of treatment facilities not warranted by the condition of the patient;
- Entering into an arrangement or agreement with a pharmacy for the compounding and/or dispensing of coded or specially marked prescriptions;
- 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;
- 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[xii].
[i] NY CLS Educ § 6522.
[ii] NY CLS Educ § 6524.
[vii] NY CLS Educ § 6525.
[ix] NY CLS Educ § 6526.
[x] NY CLS Educ § 6528.
[xii] NY CLS Educ § 6530.