Are the doctors who do physicals and fitness-for-duty exams for the New York State Police covered by state defense and indemnification under Public Officers Law § 17?

Plain-English summary

The New York State Police uses physicians for several functions: examining candidates before they are appointed as troopers, examining current members to determine fitness to return to duty after illness or injury, and reviewing medical records from treating physicians. The Division has a Division Physician and a number of subsidiary doctors. Many of the subsidiaries hold the statutory title "Assistant Division Physician" under Executive Law § 215, which authorizes the Superintendent to appoint them as assistant medical consultants and assistant chief medical examiners.

The Superintendent asked whether these doctors are entitled to defense and indemnification under Public Officers Law § 17. Section 17 covers "employees" of the State but explicitly excludes independent contractors.

The AG concluded the physicians are independent contractors, not employees, so § 17 does not cover them. The opinion runs through the classic factors that distinguish the two categories.

The arrangement looked like contracting, not employment. All of the physicians, including the Division Physician, were not paid a salary by the Division; they were paid on either an hourly or per-service basis by voucher. The Division did not withhold taxes, deduct pension contributions, or provide workers' compensation coverage for them. They made independent medical judgments about candidates' and members' fitness, with the Division relying on those judgments. The Division did not directly control the manner in which they performed their work, even though the Division Physician oversaw the medical determinations made by the assistants.

The AG cited several earlier opinions that reached the same result on similar facts:

• Op Atty Gen No. 97-F1: Department of Health medical consultants advising on Medicaid coverage were independent contractors despite providing services on a set schedule in some cases.
• 1977 Op Atty Gen 47: experts retained by the Education Department in disciplinary proceedings were independent contractors because they were paid as needed on per diem basis, were not on the payroll, and had no fringe benefits.
• 1988 Op Atty Gen 22: consultants hired by the Education Department to review doctoral programs were independent contractors because they were paid fee-for-service and not on payroll.
• 1979 Op Atty Gen 57: underlying principle that an employee works under the supervision and control of an employer who directs the manner of the work.

The fact that some of the State Police physicians held a statutory title (Assistant Division Physician) did not change the analysis. The opinion noted that Executive Law § 215 itself describes the Division Physician as a "medical consultant," tracking the consultant/independent-contractor framing rather than employment.

The AG then offered a path forward. Public Health Law § 14 expressly applies Public Officers Law § 17 to specified health care professionals who render treatment or consultation at the request of the Department of Health, bringing those independent contractors into § 17 coverage by statute. No similar statute exists for State Police physicians. The Superintendent may want to seek legislation patterned on Public Health Law § 14.

For the State Police, the practical result was that the physicians would need to carry their own malpractice insurance and would be on their own in defending any lawsuit arising from their consulting work for the Division, unless legislation closed the gap.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the difference between an employee and an independent contractor for § 17 purposes?

The core test is supervision and control over the manner of work. An employee works under direction; an independent contractor exercises independent judgment about how to perform the assigned task. The AG's opinions in this area also look at payroll, withholding, fringe benefits, workers' compensation coverage, and payment method (salary vs. fee-for-service). No single factor controls; the overall pattern decides.

What does Public Health Law § 14 do?

It is a specialized statute that brings certain health-care consultants to the Department of Health within the protection of Public Officers Law § 17 by express designation. It is the model for how the Legislature can extend § 17 coverage to independent contractors when policy reasons (recruiting medical expertise, ensuring State responsibility for State-directed care) support doing so.

Could the State Police rewrite its contracts to make these physicians employees?

In principle, yes, but that would require fundamental changes (salary, payroll, withholding, fringe benefits, control over the manner of work) that would shift the relationship in substantial ways. The AG's reasoning is that the actual relationship is determinative, not the label. Recharacterizing without changing the underlying arrangement would not work.

What's the consequence for a physician if the State Police is sued over a fitness-for-duty determination?

The State Police itself would be defended by the Attorney General if named, but the individual physician would have to defend his or her own role. Standard malpractice insurance generally covers physicians performing this kind of consultative work, but the physician (not the State) bears the responsibility for arranging that coverage.

What about the Division Physician's title? Does title matter?

Not for § 17 purposes. Executive Law § 215 gives the Division Physician a statutory title and describes the role as "medical consultant." The AG read that as consistent with independent-contractor status, not as conferring employee status. The Legislature can create statutory titles without making the title-holders employees for indemnification purposes.

Background and statutory framework

Public Officers Law § 17 is the State's general defense-and-indemnification statute for State employees. It includes a definition of "employee" that excludes independent contractors. The AG has applied that exclusion consistently across a range of State-agency contracting relationships.

Executive Law § 215 authorizes the Superintendent of State Police to appoint a Division Physician and Assistant Division Physicians. The provision was drafted to give the Division access to medical consultation without putting physicians on the payroll. The fact that the statute calls these doctors "medical consultants" supports the AG's reading.

Public Health Law § 14 is the model for legislative-fix coverage extension. It treats certain medical consultants to the Department of Health as if they were State employees for § 17 purposes. The AG repeatedly suggested similar legislation when independent-contractor classifications would otherwise leave consultants exposed. Whether such legislation has been enacted for State Police physicians since 1998 should be verified before relying on current coverage.

The AG's opinion is a useful template for analyzing employee-vs-contractor questions for any State agency relying on professionals who are paid by voucher and exercise independent judgment.

Citations

• Executive Law § 215 (appointment of Division Physician and Assistant Division Physicians as "medical consultants").
• Public Health Law § 14 (statutory extension of § 17 coverage to Department of Health consultants).
• Public Officers Law § 17 (State defense and indemnification; "employee" excludes independent contractor).
• Op Atty Gen No. 97-F1 (Department of Health medical consultants as independent contractors).
• 1977 Op Atty Gen 47 (Education Department disciplinary-proceeding experts as independent contractors).
• 1988 Op Atty Gen 22 (Education Department doctoral-program consultants as independent contractors).
• 1979 Op Atty Gen 57 (employee-vs-contractor test based on supervision and control).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/98-F2_pw.pdf

Original opinion text

EXECUTIVE LAW § 215; PUBLIC HEALTH LAW § 14; PUBLIC OFFICERS LAW
§ 17.
Physicians who perform services for the Division of State
Police pursuant to Executive Law § 215 are not eligible for
defense and indemnification under the provisions of Public
Officers Law § 17. There currently is no statutory provision
comparable to Public Health Law § 14 that would bring these
physicians within the coverage of section 17.
March 12, 1998
Hon. James W. McMahon
Superintendent
New York State Police
State Campus, Bldg 22
Albany, NY 12226-2252

Formal Opinion
No. 98-F2

Dear Superintendent McMahon:
You have asked whether physicians who perform various
services for the Division are eligible for defense and
indemnification under Public Officers Law § 17. The request
submitted by your counsel and subsequent telephone conversations
with your staff indicate that you have a Division Physician and a
number of other physicians performing a variety of tasks. You
state that many, but not all, of the subsidiary physicians who
perform services for the Division have been appointed Assistant
Division Physicians under Executive Law § 215. That provision
states in part:
The superintendent may also appoint a
division physician who shall be the medical
consultant and chief medical examiner of the
New York state police, and assistant division
physicians each of whom shall be an assistant
medical consultant and assistant chief
medical examiner of the New York state
police.
You have stated that the services the doctors provide
include examining candidates prior to appointment to the position
of trooper, examining current members to determine their fitness
to return to duty after illness or injury, and reviewing medical
records provided by treating physicians to advise the Division
concerning a member's medical status.

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You also have advised us that all of the services performed
by the Assistant Division Physicians and other doctors are
overseen by the Division Physician, who reviews each medical
determination made. Some of the physicians provide services to
the Division on a recurring basis, for example by conducting
candidate physicals at regular intervals, and others provide
services as needed. The Division Physician, the physicians who
are appointed Assistant Division Physician and those who serve
without formal appointment are not paid a salary by the Division.
All are compensated on either an hourly or per service basis.
All of the physicians, including the Division Physician, are paid
by State voucher and the Division does not withhold taxes, deduct
pension contributions or provide workers' compensation coverage
for them.
Section 17 of the Public Officers Law provides in certain
circumstances for defense and indemnification of an "employee",
which in part is defined to mean "any person holding a position
by election, appointment or employment in the service of the
state . . . but shall not include an independent contractor". In
a prior opinion concerning a similar situation, we concluded that
health care professionals serving as consultants to the
Department of Health were independent contractors. Op Atty Gen
No. 97-F1. The consultants advised the Department whether
particular requested services fell within the scope of Medicaid
benefits and were appropriate based on the diagnosis of the
patient. Some of them provided services on a set schedule while
others provided services only upon request. The consultants were
paid on an hourly basis by voucher, and no deductions were made
for withholding taxes, fringe benefits or retirement
contributions. Moreover, the consultants provided independent
opinions about the appropriateness of proposed treatments and
therefore were not subject to the direct control of the
Department.
We concluded, based upon all of these factors, that the
consultants were independent contractors. We went on to note
that the consultants could, however, be eligible for defense and
indemnification if they fell within the provisions of Public
Health Law § 14, which expressly applies Public Officers Law § 17
to specified health care professionals who render treatment or
consultation at the request of the Department. By statute, these
independent contractors were covered.
In 1977 Op Atty Gen 47, we concluded that experts employed
by the Education Department in disciplinary proceedings were
independent contractors because they were retained and paid as
needed on a per diem basis, were not included in the payroll but

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were paid by voucher, and were not granted fringe benefits or
workers' compensation coverage. Similarly, we found consultants
hired by the Education Department to assist in the review of
doctoral program curricula to be independent contractors because
they were not on the payroll and were paid on a fee for service
basis. 1988 Op Atty Gen 22.
Underlying all of these opinions is the concept that an
employee works under the supervision and control of an employer
who directs the manner in which the employee's work shall be
done. See, 1979 Op Atty Gen 57. When there is no direct control
over the manner in which work is performed, the worker is
classified as a consultant or independent contractor.
We conclude that, like the consultants for the Health
Department and Education Department discussed above, the
physicians who render services to the Division are independent
contractors. The character of their relationship to the Division
is not altered by the fact that some of them are given a
statutory title. Indeed, the statute identifies them as
consultants. Executive Law § 215. The physicians are paid by
voucher on a per-service or hourly fee basis and are not on
salary. The Division makes no arrangement for withholding taxes,
fringe benefits, pension contributions or workers' compensation
coverage. The physicians make medical judgments about the
condition of candidates and members of the Division. The
Division Physician makes the ultimate medical determination in
every case. The Division relies upon the physicians' medical
judgments and does not directly control the manner in which they
perform their tasks.
We conclude that physicians who perform services for the
Division of State Police, including the Division Physician,
Assistant Division Physicians and those who have no statutory
title, are not eligible for defense and indemnification under the
provisions of Public Officers Law § 17. We also note that there
currently is no statutory provision comparable to Public Health
Law § 14 that would bring these physicians within the coverage of
section 17. You may wish to consider seeking such legislation.
Very truly yours,

DENNIS C. VACCO
Attorney General