2017 -- H 5884

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LC001982

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2017

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A N   A C T

RELATING TO BUSINESSES AND PROFESSIONS -- BOARD OF MEDICAL LICENSURE

AND DISCIPLINE

     

     Introduced By: Representatives McKiernan, O'Brien, Ucci, McEntee, and Craven

     Date Introduced: March 09, 2017

     Referred To: House Health, Education & Welfare

     It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 5-37-1.3, 5-37-5.2 and 5-37-6.2 of the General Laws in Chapter 5-

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37 entitled "Board of Medical Licensure and Discipline" are hereby amended to read as follows:

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     5-37-1.3. Board of medical licensure and discipline -- Powers and duties.

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     The board has the following duties and powers:

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     (1) To adopt, amend, and rescind rules and regulations, with the approval of the director,

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necessary to carry out the provisions of this chapter;

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     (2) To investigate all complaints and charges of unprofessional conduct against any

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licensed physician or limited registrant and hold hearings to determine whether those charges are

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substantiated or unsubstantiated;

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     (3) To direct the director of the department of health to license qualified applicants;

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     (4) To appoint one or more members of the board to act for the members of the board in

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investigating the conduct or competence of any licensed physician or limited registrant;

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     (5) To direct the director to revoke or suspend licenses or registrations, or implement

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other disciplinary action against persons licensed or registered under this chapter;

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     (6) To issue subpoenas and administer oaths in connection with any investigations,

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hearings, or disciplinary proceedings held under the authority of this chapter as follows:

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     (i) All subpoenas issued pursuant to this section shall only be issued by a vote of either

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the investigating committee or the full board;

 

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     (ii) All subpoenas issued by the board or the investigating committee shall be served by a

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disinterested party or by a constable authorized by the courts to serve process;

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     (iii) Subpoenas issued by either the investigating committee or the full board shall have a

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reasonable return date that will allow the recipient an opportunity to review the subpoena, consult

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with counsel, and prepare a response to the subpoena; and

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     (iv) All subpoenas shall be in compliance with the Rhode Island health care

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confidentiality act;

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     (7) To take or cause depositions to be taken as needed in any investigation, hearing, or

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proceeding;

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     (8) To summon and examine witnesses during any investigation, hearing, or proceeding

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conducted by the board;

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     (9) To adopt and publish, with the approval of the director, rules of procedure and other

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regulations in accordance with the administrative procedure act, chapter 35 of title 42.

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     (10) (i) To require a licensee to undergo a physical or psychiatric examination by a

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physician acceptable to the board, from a list provided to the licensee by the board, if probable

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cause exists to believe that allegations of misconduct against a licensee are caused by an

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impairment that has directly affected the ability of the licensee to conduct his or her practice

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professionally. ; provided, that:

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     (ii)(i) The investigating committee and the board may not discriminate on the basis of

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disability in the administration of the licensing program, nor subject qualified individuals with

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disabilities to any discrimination on the basis of disability in its complaint procedure.

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     (ii) All decisions of the investigating committee and the board shall be based on the

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allegation of unprofessional conduct and not due to probable cause of the conduct being related to

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the disability of the licensee.

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     (11) To advise the licensee of the availability of the physicians health committee of the

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Rhode Island Medical Society, and in appropriate instances, to refer licensees to that committee

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for evaluation by appropriate medical professionals.

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     5-37-5.2. Complaints.

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     (a) Any person, firm, corporation, or public officer may submit a written complaint to the

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board charging the holder of a license to practice medicine or limited registrant with

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unprofessional conduct, specifying the grounds for the complaint. The board shall review all

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complaints. In those instances during which no referral is made for further investigation and

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consideration, the board shall make a written finding of fact with regard to the complaint.

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     (b) If the board determines that the complaint merits consideration, or if the board, on its

 

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own initiative without a formal complaint, has reason to believe that any holder of a license or

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limited registration to practice medicine may be guilty of unprofessional conduct, the chairperson

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board administrator shall designate three (3) members of the board, at least one of whom shall be

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a public member, to serve as a committee to investigate the complaint. If the complaint relates to

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a procedure involving osteopathic manipulative treatment (OMT), at least one member of the

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investigating committee shall be an osteopathic physician member of the board.

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     (c) The investigating committee shall conduct its deliberations and make written

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recommendations regarding the complaint to the board. In conducting an investigation of such

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complaints that require an inspection of a licensee's office:

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     (1) Either the investigating committee or the full board shall make a finding that an

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inspection is required and this finding must be evidenced by recorded minutes showing the vote

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to conduct an inspection;

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     (2) The scope and manner of conducting any such inspection shall be reasonably related

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to the written complaint received. Any licensee whose office is the subject of such inspection

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shall be provided by either the investigating committee or the full board with a copy of the

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complaint or a written summary of all pertinent allegations prior to or at the commencement of

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the inspection;

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     (3) At the conclusion of the inspection and prior to leaving the licensee's office premises,

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the board's inspectors shall provide the licensee whose office has been inspected with a copy of

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the completed inspection form, noting areas of deficiency or follow-up;

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     (4) Unless there is a real potential of imminent, unreasonable harm to patients or staff, the

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licensee shall have ten (10) days to remedy any deficiencies found during the inspection; and

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     (5) All inspections shall be carried out so as not to interfere with direct patient care.

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     (d) All complaints considered by the board or an investigating committee of the board,

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shall be reported within six (6) months of the receipt of the complaint, unless the board on a case-

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by-case basis, for good cause shown, in writing, extends the time for consideration; provided, that

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the failure to report does not divest the board of its jurisdiction to pursue the rights and remedies

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established in this chapter.

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     (d)(e) No member of the board who participated in the investigation may participate in

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any subsequent hearing or action taken by the remainder of the board. Investigations shall remain

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confidential and all initial hearings, investigatory hearings, and full hearings before the board

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shall remain confidential.

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     (e)(f) (1) If the recommendation is no unprofessional conduct, the remaining members of

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the board shall review the relevant data and vote a final recommendation.

 

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     (2) If the investigating committee has probable cause to believe the alleged

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unprofessional conduct of the licensee is caused by an impairment that has directly affected the

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ability of the licensee to conduct his or her practice professionally, the committee may use its

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authority under § 5-37-1.3(10) to assist in further deliberations regarding the alleged misconduct

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of the licensee.

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     (3) During its investigation of a complaint, and prior to making any recommendation to

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the board regarding a licensee's conduct, the investigative committee shall offer the licensee the

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opportunity to meet with the committee to discuss the contents of the complaint.

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     (3)(4) In the event of a determination by the investigating committee of probable cause

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for a finding of unprofessional conduct, the accused may request a hearing (see §§ 5-37-5.3 and

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5-37-5.4). A hearing committee shall be designated at random by the chairperson administrative

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hearing officer consisting of three (3) other members of the board, at least one of whom shall be a

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physician member and at least one of whom is a public member. If the complaint relates to a

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procedure involving osteopathic manipulative treatment (OMT), at least one member of the

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investigating committee shall be an osteopathic physician member of the board. The hearing shall

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be conducted by a an administrative hearing officer appointed by the director of the department of

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health selected by the mutual agreement of the director of the department of health and the

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licensee, or their designee, from an approved list of officers from the department of

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administration. The hearing officer shall be responsible for conducting the hearing and writing a

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proposed making determinations of findings of fact and conclusions of law along with a

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recommendation of a sanction, if warranted, that occur during the hearing process. The All

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members of the hearing committee shall read the transcript and review the evidence and, be

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physically present to hear all testimony and review any and all evidence and after deliberation,

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the hearing committee shall issue a final written decision including conclusions of fact and of law

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and a recommendation of sanction, if warranted. The decision shall be provided to the board for

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implementation of a final disciplinary order, if warranted. The board shall make public all

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decisions, including all conclusions against a license holder as listed in § 5-37-6.3.

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     (g) Actions reported to the National Practitioners Data Bank (NPDB) by the board must

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be the result of formal proceedings. Revisions and reinstatements of previously reported licensing

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and certification actions must also be reported to the NPDB by the board. National Practitioner

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Data Bank Guidebook April 2015, U.S. Dept. of Health and Human Services; E-57.

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     (1) The board shall provide a licensee ten (10) days written notice prior to the board

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making a report to the NPDB in the licensees' name.

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     5-37-6.2. Decision of the board.

 

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     If a majority of the members of the board, sitting as the hearing committee, vote in favor

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of finding the accused guilty of unprofessional conduct as specified in the charges, the board shall

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prepare a final disciplinary order along with written findings of fact and law in support of that

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conclusion. The board shall immediately transmit its findings, together with an order stating the

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sanction to be imposed upon the accused, to the director who shall, as soon as practicable, order

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that appropriate action to be taken in accordance with the order of the board. In no case shall a

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person be found guilty of unprofessional conduct unless a majority of the hearing committee

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votes in favor of finding the person guilty. If the accused is found not guilty, the board shall

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immediately issue an order dismissing the charges.

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     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO BUSINESSES AND PROFESSIONS -- BOARD OF MEDICAL LICENSURE

AND DISCIPLINE

***

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     This act would amend the procedural process followed for a licensing board complaint

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pending before the board of medical licensure and discipline, as well as the administrative

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hearing process by adding clarification to the existing provisions and affording greater due

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process protections to licensees.

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     This act would take effect upon passage.

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