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.

The opinion decides only that these physicians are not eligible for defense and indemnification under Public Officers Law § 17. It does not address insurance or other possible sources of defense or indemnification.

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 expressly applies Public Officers Law § 17 to specified health care professionals who provide treatment or consultation at the Department of Health's request. The AG noted that no comparable provision then covered the State Police physicians and suggested considering legislation.

Would the physicians' statutory titles make them employees for § 17 purposes?

No. The AG said the statutory title given to some physicians did not change the character of their relationship with the Division. Executive Law § 215 itself calls them consultants, and the Division did not directly control how they performed their medical work.

Does the opinion decide who would defend a lawsuit against the Division or a physician?

No. The opinion concludes that the physicians are not eligible for defense and indemnification under Public Officers Law § 17. It does not address defense of the Division, malpractice insurance, or any other arrangement for defending the physicians.

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 statute calls them medical consultants, which the AG cited in support of the independent contractor conclusion.

Public Health Law § 14 applies § 17 to specified health care professionals serving the Department of Health. In 1998, the AG found no comparable statute for State Police physicians and suggested that the Superintendent consider seeking one.

The AG assessed the Division's payment arrangements and degree of control over the physicians' work to decide their status under § 17.

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