Introduced by Representative Chen of Mendon

BILL AS INTRODUCEDH.837

2008Page 1

H.837

Introduced by Representative Chen of Mendon

Referred to Committee on

Date:

Subject: Professions and occupations; medicine and surgery; podiatry; anesthesiologist assistants; physician’s assistants; medical practice board; unprofessional conduct; hearingscommission

Statement of purpose: This bill proposes to create a medical practice hearings commission to hear cases of unprofessional conduct involving persons regulated by the state board of medical practice.

AN ACT RELATING TO THE CREATION OF A MEDICAL PRACTICE BOARD HEARINGS COMMISSION

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 26 V.S.A. § 321 is amended to read:

§ 321. DEFINITIONS

In this chapter, unless the context requires another meaning:

(1) "Board" means the board of medical practice.

(2) “Commission” means the state medical practice hearing commission established under section 1351 of this title.

(3) "Disciplinary action" means any action against a licensee or an applicant by the boardor commission, the appellate officer, or on appeal therefrom, when that action suspends, revokes, limits or conditions licensure in any way, and includes reprimands.

(3)(4) "Practice of podiatry," by a podiatric physician, means any medical, mechanical, surgical, electrical, manipulation, strapping or bandaging treatment of the ailments pertaining to the human foot and lower leg distal to the myotendinous junction of the triceps surae. If spinal or general anesthesia is required, it shall be administered by a health care professional regulated under this title who is authorized to administer anesthesia within the scope of his or her practice. In the case of amputations other than toe amputations and in the case of surgical treatment at or above the ankle, the surgical treatment shall be performed only in a general hospital licensed under chapter 43 of Title 18 or a certified ambulatory surgical center as defined in section 9432 of Title 18. For purposes of this section, "ankle" means the joint between the tibia and fibula proximally and the talus distally.

Sec. 2. 26 V.S.A. § 375 is amended to read:

§ 375. UNPROFESSIONAL CONDUCT

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(b) The following conduct by a licensed podiatrist constitutes unprofessional conduct. When that conduct is by an applicant or person who later becomes an applicant, it may constitute grounds for denial of licensure:

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(4) failing to comply with provisions of federal or state statutes or rules governing the profession, failing to comply with an order of the commission, violating any term or condition of a license which is restricted or conditioned by the board or commission, or failing to respond or cooperate in an investigation conducted by the board;

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(d) A person aggrieved by a determination of the boardcommissionmay, within 30 days of the order, appeal that order to the Vermont supreme court on the basis of the record created before the boardcommission.

Sec. 3. 26 V.S.A. § 376 is amended to read:

§ 376. DISPOSITION OF COMPLAINTS

(a) Complaints and allegations of unprofessional conduct shall be processed in a manner consistent with chapter 23 of this title andin accordance with the rules of procedure of the board of medical practiceand the commission.

(b) The board shall accept complaints from any person including a state or federal agency and the attorney general. The board may initiate disciplinary action in any complaint against a podiatrist and may act without having received a complaint. After a hearing and upon a finding of unprofessional conduct, the commission may suspend, revoke, limit, or condition a license, or may issue a public reprimand.

(c) After hearing and upon a finding of unprofessional conduct, the board may suspend or revoke a license, refuse to issue or renew a license, issue a warning, or limit or condition a license.

(d) The boardcommissionmay approve a negotiated agreement between the parties when it is in the best interest of the public health, safety or welfare to do so. Such an agreement may include, without limitation, any of the following conditions or restrictions which may be in addition to, or in lieu of, suspension:

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(e)(d) Upon applicationby a licensee, the boardcommissionmay modify the terms of an order under this section and, if licensure has been revoked or suspended, mayorder reinstatement on terms and conditions it deems proper.

Sec. 4. 26 V.S.A. § 1311 is amended to read:

§ 1311. DEFINITIONS

For the purposes of this chapter:

(1) A person who advertises or holds himself or herself out to the public as a physician or surgeon, or who assumes the title or uses the words or letters "Dr.," "Doctor," "Professor," "M.D.," or "M.B.," "M.D."in connection with his or her name, or any other title implying or designating that he or she is a practitioner of medicine or surgery in any of its branches, or shall advertise or hold himself or herself out to the public as one skilled in the art of curing or alleviating disease, bodily injuries or physical or nervous ailments, or shall prescribe, direct, recommend, or advise, give or sell for the use of any person, any drug, medicine or other agency or application for the treatment, cure or relief of any bodily injury, infirmity or disease, or who follows the occupation of treating diseases by any system or method, shall be deemed a physician, or practitioner of medicine or surgery.

(2) "Board" means the state board of medical practice established under section 1351 of this title.

(3) “Commission” means the state medical practice hearing commission established under section 1351 of this title.

(4) "License" means license to practice medicine and surgery in the state as defined in subchapter 3 of this chapter. "Licensee" includes individuals licensed under this chapter and chapter 7 of this title and registrants and holders of certificates issued by the board.

(4)(5) "Medical director" means, for purposes of this chapter, a physician who is board-certified or board-eligible in his or her field of specialty, as determined by the American Board of Medical Specialties (ABMS), and who is charged by a health maintenance organization with responsibility for overseeing all clinical activities of the plan in this state, or his or her designee.

(5)(6) "Health maintenance organization", as used in this section, shall have the same meaning as defined in subdivision 9402(10) of Title 18.

(6)(7) "Members" means members of the boardor commission, as applicable.

(7)(8) "Secretary" means the secretary of the board.

Sec. 5. 26 V.S.A. § 1318 is amended to read:

§ 1318. ACCESSIBILITY AND CONFIDENTIALITY OF DISCIPLINARY

MATTERS

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(b) All meetings and hearings of the board or the commissionshall be open to the public, except in accord with section 313 of Title 1.

(c) The commissioner of health shall prepare and maintain a register of all complaints, which shall be a public record, and which shall show:

(1) with respect to all complaints, the following information:

(A) the date and the nature of the complaint, but not including the identity of the licensee; and

(B) a summary of the completed investigationthe report date and the recommendation of a board committee appointed to investigate a complaint and any attorney general recommendation presented to the board, but not including the identity of the licensee; and

(C) any attorney general recommendation presented to the board if that recommendation contradicts a board committee recommendation, but not including the identity of the licensee; and

(D) the decision date and the decision of the board on a committee recommendation, but not including the identity of the licensee unless the decision is to file disciplinary charges.

(2) only with respect to complaints resulting in filing of disciplinary charges, motions for summary suspension, or stipulations or the taking of disciplinary action, the following additional information:

(A) the name and business addresses of the licensee and complainant;

(B) any motion filed with the commission by the attorney general for a summary suspension of a license;

(C) formal charges, provided they have been served or a reasonable effort to serve them has been made;

(C)(D) the findings, conclusions and order of the boardcommission;

(D)(E) the transcript of the hearing, if one has been made, and exhibits admitted at the hearing;

(E)(F) stipulations filed with the boardcommission; and

(F)(G) final disposition of the matter by the appellate officer or the courts.

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Sec. 6. 26 V.S.A. § 1351 is amended to read:

§ 1351. BOARD OF MEDICAL PRACTICE; STATE MEDICAL

PRACTICE HEARING COMMISSION

(a) A state board of medical practice is created. The board shall be composed of 17 members, nine of whom shall be licensed physicians, one of whom shall be a physician’s assistant certified pursuant to chapter 31 of this title, one of whom shall be a podiatrist as described in section 322 of this title, and six of whom shall be persons not associated with the medical field. The governor, with the advice and consent of the senate, shall appoint the members of the board. Appointments shall be for a term of five years, except that a vacancy occurring during a term shall be filled by an appointment by the governor for the unexpired term. No member shall be appointed to more than two consecutive full terms, but a member appointed for less than a full term (originally or to fill a vacancy) may serve two full terms in addition to such part of a full term, and a former member shall again be eligible for appointment after a lapse of one or more years. Any member of the board may be removed by the governor at any time. The board shall elect from its members a chair, vice chair and secretary who shall serve for one year and until their successors are appointed and qualified. The board shall meet upon the call of the chair or the commissioner of health, or at such other times and places as the board may determine. Except as provided in section 1355 or 1360 of this title, nine members of the board shall constitute a quorum for the transaction of business. The affirmative vote of the majority of the members present shall be required to carry any motion or resolution, to adopt any rule, to pass any measure or to authorize any decision or order of the board.

(b) A state medical practice hearing commission is created. The commission shall comprise five members, at least three of whom shall be persons licensed in a profession regulated by the board, and at least one of whom shall be a person not associated with the medical field. The commission shall adjudicate claims of unprofessional conduct and shall not engage in any board business.

(c) The governor, with the advice and consent of the senate, shall appoint the members of the board and the members of the commission. Appointments shall be for a term of five years, except that a vacancy occurring during a term shall be filled by an appointment by the governor for the unexpired term. No member shall be appointed to more than two consecutive full terms, but a member appointed for less than a full term (originally or to fill a vacancy) may serve two full terms in addition to such part of a full term, and a former member shall again be eligible for appointment after a lapse of one or more years. Any member of the board or the commission may be removed by the governor at any time. The board and the commission shall elect from its members a chair, vice chair, and secretary who shall serve for one year and until their successors are appointed and qualified. The board and the commission shall meet upon the call of the chair or the commissioner of health, or at such other times and places as the board or the commission may determine. Nine members of the board shall constitute a quorum for the transaction of business. The affirmative vote of the majority of the members of the board present shall be required to carry any motion or resolution, to adopt any rule, to pass any measure or to authorize any decision or order of the board. Three members of the commission shall constitute a quorum for the transaction of business. The affirmative vote of the majority of the members of the commission present shall be required to carry any motion or resolution, to adopt any rule, to pass any measure or to authorize any decision or order of the board.

(d) In the performance of their duties members of the board and the commissionshall be paid $30.00theper diem authorized by lawand their actual and necessary expenses.

(c)(e) The board of medical practice isand the medical practice hearing commission areestablished as an officea unitwithin the department of health. With respect to the boardunit, the commissioner shall have the following powers and duties to:

(1) appoint a director of the officeunit;

(2) employ or contract for legal counsel and such assistants as may be required, to fix the compensation to be paid for these services, and to incur such other expenses as the commissioner determines are necessary;

(3) employ, contract, or make arrangements for the performance of administrative, investigative, and similar services required or appropriate in the performance of the duties of the boardand the commission;

(4) act as custodian of the records of the boardand the commission; and

(5) prepare an annual budget and administer money appropriated to the boardunitby the general assembly. The budget of the boardunitshall be part of the budget of the department. A board of medical practice regulatory fee fund is created. All board regulatory fees received by the department shall be deposited into this fund and used to offset up to two years of the costs incurred by the boardand the commission, and shall not be used for any purpose other than professional regulation and responsibilities of the boardor the commission, as determined by the commissioner of health. To ensure that revenues derived by the department are adequate to offset the cost of regulation, the commissioner shall review fees from time to time, and present proposed fee changes to the general assembly.

(d)(f) The commissioner of health shall appoint, and may terminate the employment of, the director, administrative support staff, and any investigator or private legal counsel employed or retained byto provide services tothe boardor the commission.

(e)(g) The commissioner of health shall adopt, amend and repeal rules of the board which the commissioner determines necessary to carry out the provisions of this chapter and chapters 7, 29, and 31 of this title.

(f)(h) Classified state employees who are employed as investigators by the department of health who have successfully met the standards of training for a full-time law enforcement officer under chapter 151 of Title 20 shall have the same powers as sheriffs in criminal matters and the enforcement of the law and in serving criminal process, and shall have all the immunities and matters of defense now available or hereafter made available to sheriffs in a suit brought against them in consequence for acts done in the course of their employment.

Sec. 7. 26 V.S.A. § 1352(a) is amended to read:

(a) The commissioner of health shall issue annually a report to the secretary of human services and the secretary of the Vermont medical society which shall contain:

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(3) a summary of all disciplinary actions undertaken by the boardcommissionduring the year of the report; and

(4) an accounting of all fees and fines received by the boardunitand all expenditures and costs of the board for such year. A sufficient number of copies shall be printed to supply the needs of the boardunitand the state library.

Sec. 8. 26 V.S.A. § 1353 is amended to read:

§ 1353. POWERS AND DUTIES OF THE BOARD

(a) The board shall have the following powers and duties to:

(1) Investigate all complaints and charges of unprofessional conduct against any holder of a license or certificate, or any medical practitioner practicing pursuant to section 1313 of this title, and to hold hearings to determine whether such charges are substantiated or unsubstantiated.

(2) Issue subpoenas and administer oaths in connection with any investigations, hearings, or disciplinary proceedings held under this chapter.

(3) Take or cause depositions to be taken as needed in any investigation, hearing or proceeding.

(4) Undertake any such other actions and procedures specified in, or required or appropriate to carry out, the provisions of this chapter.

(5) Require a licensee or applicant to submit to a mental or physical examination, and an evaluation of medical knowledge and skill by individuals or entities designated by the board if the board has a reasonable basis to believe a licensee or applicant may be incompetent or unable to practice medicine with reasonable skill and safety. The results of the examination or evaluation shall be admissible in any hearing before the board. The results of an examination or evaluation obtained under this subsection and any information directly or indirectly derived from such examination or evaluation shall not be used for any purpose, including impeachment or cross-examination against the licensee or applicant in any criminal or civil case, except a prosecution for perjury or giving a false statement. The board shall bear the cost of any examination or evaluation ordered and conducted pursuant to this subdivision. The licensee or applicant, at his or her expense, shall have the right to present the results or reports of independent examinations and evaluations for the board's due consideration. An order by the board that a licensee or applicant submit to an examination, test or evaluation shall be treated as a discovery order for the purposes of enforcement under sections 809a and 809b of Title 3. The results of an examination or evaluation obtained under this subdivision shall be confidential except as provided in this subdivision.

(b) The chair of the board or a person designated by the chair may issue subpoenas to compel the attendance of persons and the production of documents or other tangible things in connection with any investigation held under this chapter.

Sec. 9. 26 V.S.A. § 1353a is added to read:

§ 1353a. Powers and duties of the commission

(a) The commission shall have the power or duty to:

(1) Hold hearings to determine whether charges of unprofessional conduct against a holder of a license or certificate, or against a medical practitioner practicing pursuant to section 1313 of this title are substantiated or unsubstantiated.

(2) Hold hearings to determine whether a refusal to issue the licenses provided for in section 1391 of this title is substantiated or unsubstantiated.

(3) Require a licensee or applicant to submit to a mental or physical examination, and an evaluation of medical knowledge and skill by individuals or entities designated by the commission if the commission has a reasonable basis to believe a licensee or applicant may be incompetent or unable to practice medicine with reasonable skill and safety. The results of the examination or evaluation shall be admissible in any hearing before the commission. The results of an examination or evaluation obtained under this subsection and information directly or indirectly derived from the examination or evaluation shall not be used for any purpose, including impeachment or cross-examination against the licensee or applicant in a criminal or civil case, except a prosecution for perjury or giving a false statement. The commission shall bear the cost of an examination or evaluation ordered and conducted pursuant to this subdivision. The licensee or applicant, at his or her expense, shall have the right to present the results or reports of independent examinations and evaluations for the commission’s due consideration. An order by the commission that a licensee or applicant submit to an examination, test, or evaluation shall be treated as a discovery order for the purposes of enforcement under sections 809a and 809b of Title 3. The results of an examination or evaluation obtained under this subdivision shall be confidential except as provided in this subdivision.