CHAPTER 206
HB 408-FN – FINAL VERSION
26Mar2009… 0825h
05/13/09 1574s
05/13/09 1635s
24Jun2009… 2178cofc
24Jun2009… 2354eba
2009 SESSION
10/05
HOUSE BILL 408-FN
AN ACT relative to the regulation of physicians and physician assistants by the board of medicine.
SPONSORS: Rep. Rosenwald, Hills 22; Rep. Harding, Graf 11; Rep. Batula, Hills 19; Rep. Bergin, Hills 6; Sen. Cilley, Dist 6; Sen. Sgambati, Dist 4
COMMITTEE: Executive Departments and Administration
This bill makes various changes to the regulation of physicians and physician assistants by the board of medicine.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
26Mar2009… 0825h
05/13/09 1574s
05/13/09 1635s
24Jun2009… 2178cofc
24Jun2009… 2354eba
09-0509
10/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
AN ACT relative to the regulation of physicians and physician assistants by the board of medicine.
Be it Enacted by the Senate and House of Representatives in General Court convened:
206:1 New Section; Purpose of Chapter. Amend RSA 329 by inserting after section 1-a the following new section:
329:1-aa Purpose of Chapter. The practice of medicine is a privilege granted by the people according to the laws enacted by the legislature, and not a natural right. In the interests of public health, safety, and welfare, and to protect the public from the unprofessional, improper, incompetent, unlawful, fraudulent, and deceptive practice of medicine, it is necessary to provide laws and rules to regulate the granting and subsequent use of the privilege to practice medicine. The primary responsibility and obligation of the board of medicine is to protect the public.
206:2 Board of Medicine; Duties; Executive Director. Amend RSA 329:2, II-IV to read as follows:
II. The board shall:
(a) [Examine and investigate] Evaluate persons who apply for the authority to practice medicine in New Hampshire and license to those who are found qualified under the standards of this chapter.
(b) Investigate and [examine] evaluate existing licensees through the medical review subcommittee and commence disciplinary action concerning licensees in accordance with the standards of this chapter.
(c) Investigate and prepare reports on any matter within the scope of this chapter.
(d) Assess, compromise, and collect civil penalties against persons engaged in the unauthorized practice of medicine or other violations of this chapter.
(e) Establish fees for licenses and for renewal of licenses to practice medicine, including late fees, and fees for transcribing and transferring records and other services.
III. The board shall be an administratively attached agency, under RSA 21-G:10, to the department of health and human services.
IV. The board shall establish an office in Concord, and shall have authority to retain an administrator [and], executive director, investigators, and other technical and clerical staff to run the board’s business in an efficient manner.
206:3 Board Membership; Physician Assistants. Amend RSA 329:3 to read as follows:
329:3 Eligibility for Board Membership. All appointed members who are physicians or [surgeons] physician assistants shall be residents of the state, regularly licensed to practice [medicine] their profession under this chapter, and shall have been actively engaged in the practice of their profession within the state for at least 5 years. The other members of the board shall have been residents of the state for at least 5 years.
206:4 Board; Residency; Vacancies. Amend RSA 329:4 to read as follows:
329:4 Appointment; Term; Removal.
I. The commissioner or the medical director of the department of health and human services shall serve as a voting member of the board, or in the case of a vacancy in the office of medical director, the commissioner shall appoint a designee. The commissioner and the medical director, or designee, are exempt from the provisions of RSA 329:4, II and the residency requirements of RSA 329:3.
II. The remaining 9 members of the board shall be appointed, as their terms expire, by the governor with the advice and consent of the council. Their terms of office shall be 5 years and until their successors are appointed and qualified. No member shall be appointed to more than 2 consecutive terms. Appointments to fill vacancies shall be for the unexpired term. Appointees to the unexpired portion of a full term shall become members of the board on the day following such appointment. Time served in filling an unexpired term shall not affect an appointee’s eligibility to serve 2 consecutive full terms. The governor and council may remove any appointed member of the board for malfeasance, misfeasance, or nonfeasance.
206:5 Board Meetings; Quorum. Amend RSA 329:7 to read as follows:
329:7 Meetings; Officers.
I. The board shall meet monthly, or more often as its business requires. A president and such other officers as the board deems necessary shall be chosen annually from the membership of the board.
II. No board action shall be taken without an affirmative vote of the majority of board members eligible to participate in the matter in question. Board members shall not be eligible to participate in a vote when the board member has recused himself or herself from participation due to a conflict of interest.
III. The president of the board may call an emergency meeting when required by an imminent peril to the public health or safety[, and] or when the physical presence of a quorum is not reasonably practical for immediate board action, such as an issue related to medical services in rural or underserved communities. Emergency meetings may [conduct such meeting] be conducted telephonically, with a quorum of board members eligible to vote with respect to the subject matter of the emergency. Any vote resulting from such meetings shall have the same effect as votes resulting from other meetings of the board, if such vote is ratified at the next regularly scheduled board meeting. The minutes and the procedures for emergency meetings shall comply with RSA 91-A:2.
IV. The duties of the officers of the board shall be those usually pertaining to such officers. Elected board officers shall not serve more than 5 years in such elected positions.
206:6 Rulemaking; Applications. Amend RSA 329:9, I to read as follows:
I. The application procedure for a license to practice medicine, special training licenses, courtesy licenses, temporary licenses, and licenses to practice administrative medicine.
206:7 New Paragraphs; Rulemaking. Amend RSA 329:9 by inserting after paragraph XVI the following new paragraphs:
XVII. The purpose, scope, and procedures of the medical review subcommittee.
XVIII. The relationship between the board, the medical review subcommittee, and the administrative prosecutions unit at the department of justice.
XIX. Procedures to be followed during informal and formal investigations.
206:8 Qualification; Medical School. Amend RSA 329:12, I(d)(4) to read as follows:
(4) Has studied the treatment of human ailments in a medical school maintaining at the time of such studies a standard satisfactory to the Accreditation Council for Medical Education and has graduated from such school or has studied medicine in a medical school located outside the United States which is recognized by the United Nations World Health Organization (UNWHO) and had such studies confirmed by Educational Commission for Foreign Medical Graduates (ECFMG) Certification;
206:9 Waiver; Examination. Amend RSA 329:12, II to read as follows:
II. The board may waive the examination requirement for any applicant who has satisfactorily passed [a national examination approved by the Federation of State Medical Boards in another state or in Canada] all examinations and requirements to become board certified by the American Board of Medical Specialties (ABMS) or by the American Osteopathic Association (AOA).
206:10 Professionals’ Health Program. Amend RSA 329:13-b to read as follows:
329:13-b [Physician Effectiveness] Professionals’ Health Program.
I. Any [physician] peer review committee may report relevant facts to the board relating to the acts of any physician or physician assistant in this state if it has knowledge relating to the physician or physician assistant which, in the opinion of the [physician] peer review committee, might provide grounds for disciplinary action as specified in RSA 329:17.
II. Any committee of a professional society comprised primarily of physicians, its staff, or any district or local intervenor participating in a program established to aid physicians impaired or potentially impaired by mental or physical illness including substance abuse or disruptive behavior may report in writing to the board the name of a physician whose ability to practice medicine safely is impaired or could reasonably be expected to become impaired if the condition is allowed to progress together with the pertinent information relating to the physician’s impairment. The board may report to any committee of such professional society or the society’s designated staff information which it may receive with regard to any physician who may be impaired by a mental or physical illness including substance abuse or disruptive behavior. In this chapter, "disruptive behavior" means any abusive conduct, including sexual or other forms of harassment, or other forms of verbal or non-verbal conduct that harms or intimidates others to the extent that quality of care of patient safety could be compromised.
III. Notwithstanding the provisions of RSA 91-A, the records and proceedings of the board, compiled in conjunction with a [physician effectiveness] peer review committee, shall be confidential and are not to be considered open records unless the affected physician so requests; provided, however, the board may disclose this confidential information only:
(a) In a disciplinary hearing before the board or in a subsequent trial or appeal of a board action or order;
(b) To the physician licensing or disciplinary authorities of other jurisdictions; or
(c) Pursuant to an order of a court of competent jurisdiction.
IV.(a) No employee or member of the board, peer review committee member, medical organization committee member, medical organization district or local intervenor furnishing in good faith information, data, reports, or records for the purpose of aiding the impaired physician or physician assistant shall by reason of furnishing such information be liable for damages to any person.
(b) No employee or member of the board or such committee, staff, or intervenor program shall be liable for damages to any person for any action taken or recommendations made by such board, committee, or staff unless the person is found to have acted recklessly or wantonly.
V.(a) The board may contract with other organizations to operate the [physician effectiveness] professionals’ health program for physicians and physician assistants who are impaired or potentially impaired because of mental or physical illness including substance abuse or disruptive behavior. This program shall be available to all physicians and physician assistants licensed in this state, all physicians and physician assistants seeking licensure in this state, and all resident physicians in training, and shall include, but shall not be limited to, education, intervention, ongoing care or treatment, and post-treatment monitoring.
(b) [Repealed.]
VI. Upon a determination by the board that a report submitted by a peer review committee or professional society committee is without merit, the report shall be expunged from the physician’s or physicians assistant’s individual record in the board’s office. A physician, or physician assistant, or authorized representative shall be entitled on request to examine the [physician’s] peer review or the organization committee report submitted to the board and to place into the record a statement of reasonable length of the physician’s or physician assistant’s view with respect to any information existing in the report.
206:11 Training Licenses. Amend RSA 329:14, V(a) to read as follows:
V.(a) The board shall issue special training licenses to persons of good professional character who are enrolled in a regular residency or graduate fellowship training program accredited by the Council on Graduate Medical Education, and who possess such further education and training as the board may require by rule. [Training licenses shall be recorded separate from the record of physician’s licenses.]
206:12 New Paragraph; License; Administrative Medicine. Amend RSA 329:14 by inserting after paragraph VII the following new paragraph:
VIII. The board may issue licenses authorizing the practice of medicine limited to administrative medicine for physicians whose practice does not include the provision of clinical services to patients.
206:13 Change of Address; License Notice Requirements. Amend RSA 329:16-f to read as follows:
329:16-f [Change of Address] License Notice Requirements.
I. All licensees shall maintain their current business address on file with the board, or if licensees have no business address, their current home address shall be provided. Any changes in the address, including the closing of an office shall be promptly provided to the board or, in any event, no later than 30 days from the date of the change.
II. All licensees shall provide the board with a copy of any notice of complaint, action for medical injury, or claim received from or disciplinary action taken in a jurisdiction outside of this state within 30 days of receipt of such notice or action.
206:14 Disciplinary Actions; Medical Review Subcommittee. Amend RSA 329:17 to read as follows:
329:17 Disciplinary Action; Remedial Proceedings.
I. The board may undertake disciplinary proceedings (a) upon its own initiative or (b) upon written complaint of any person which charges that a person licensed by the board has committed misconduct as set forth in paragraph VI of this section and which specifies the grounds therefor.
I-a. The board may undertake non-disciplinary remedial proceedings (a) upon its own initiative or (b) upon written complaint of any person which charges that a person licensed by the board is afflicted with a condition as set forth in paragraph VI-a of this section and which specifies the grounds therefor.
II. Every clerk of the superior court shall report to the board the filing and final disposition of any action for medical injury as defined in paragraph III within 30 days after such filing and within 30 days after such final disposition.
III. Every insurer, including self-insurers, providing professional liability insurance to a licensee of the board shall send a complete report to the board as to all reservable claims [and suits] coincident with [the initiation of an action for] medical injury that take place in this state or in any other state within 30 days after [the initiation of the action] establishing the reserve. For the purpose of this paragraph, medical injury means any adverse, untoward or undesired consequences arising out of or sustained in the course of professional services rendered by a medical care provider, whether resulting from negligence, error or omission in the performance of such services; from rendition of such services without informed consent or in breach of warranty or in violation of contract; from failure to diagnose; from premature abandonment of a patient or of a course of treatment; from failure properly to maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.
III-a. The board shall instruct the medical review subcommittee to conduct an investigation of any person licensed by the board who has had 3 reservable claims, written complaints, or actions for medical injury, as defined by paragraph I, II, or III, or any combination thereof, which pertain to 3 different acts or events within any consecutive 5-year period.
III-b.(a) Any referral by the insurance commissioner under RSA 420-J:5-e, VIII or any complaint alleging that a medical director has committed misconduct as set forth in paragraph VI of this section shall be received and reviewed by the board in accordance with the provisions of this section for potential disciplinary action. For the purposes of this paragraph, “medical director’’ means a physician licensed under this chapter who is employed by a health carrier or medical utilization review entity and is responsible for the utilization review techniques and methods of the health carrier or medical utilization review entity and their administration and implementation.
(b) Any complaint received by the board regarding an insurance coverage decision by a medical director shall be forwarded by the board to the insurance commissioner for review.
IV. Every facility administrator, or designee, for any licensed hospital, health clinic, ambulatory surgical center, or other health care facility within the state shall report to the board any disciplinary or adverse action, within 30 days after such action is taken, including situations in which allegations of misconduct are settled by voluntary resignation without adverse action, against a person licensed by the board. Disciplinary or adverse action shall include the requirement that a licensee undergo counseling or be subject to any policy with regard to disruptive behavior.
V. Every professional society within the state comprised primarily of persons licensed by the board shall report to the board any disciplinary action against a member relating to professional ethics, medical incompetence, moral turpitude, or drug or alcohol abuse within 30 days after such disciplinary action is taken.
V-a. A medical review subcommittee of [9] 11 members shall be nominated by the board of medicine and appointed by the governor and council. The subcommittee shall consist of one member of the board of medicine and [8] 10 other persons, 3 of whom shall be public members, one of whom shall be a physician assistant, and [5] 6 of whom shall be physicians. Any public member of the subcommittee shall be a person who is not, and never was, a member of the medical profession or the spouse of any such person, and who does not have, and never has had, a material financial interest in either the provision of medical services or an activity directly related to medicine, including the representation of the board or profession for a fee at any time during the 5 years preceding appointment. The terms of the public members shall be staggered so that no 2 public members’ terms expire in the same year. The subcommittee members shall be appointed for 3-year terms, and shall serve no more than 2 terms. Upon referral by the board, the subcommittee shall review disciplinary actions reported to the board under paragraphs II-V of this section, except that matters concerning a medical director involved in a current internal or external grievance pursuant to RSA 420-J shall not be reviewed until the grievance process has been completed. Following review of each case, the subcommittee shall make recommendations to the board. Funds shall be appropriated from the general fund for use by the subcommittee to investigate allegations under paragraphs I-V of this section. The board shall employ a physician as a medical review subcommittee investigator who shall serve at the pleasure of the board. The salary of the medical review subcommittee investigator shall be established by RSA 94:1-a.
V-b. When a threat to public health, safety, or welfare [exists] may exist, the board of medicine shall notify the facility, a practice’s managing physician or administrator, or the hospital chief executive officer of any pending disciplinary proceedings [or], non-disciplinary remedial proceedings [for], recommended corrective actions, or concerns for informational purposes or referral to the facility, practice, or hospital’s credentials and quality assurance committees or their equivalent. The [hospital’s committees] entity receiving notification shall report back to the board of medicine with a progress or final report within 45 days.
VI. The board, after hearing, may take disciplinary action against any person licensed by it upon finding that the person:
(a) Has knowingly provided false information during any application for professional licensure or hospital privileges, whether by making any affirmative statement which was false at the time it was made or by failing to disclose any fact material to the application.
(b) Is a habitual user of drugs or intoxicants.
(c) Has displayed [a pattern of behavior] medical practice which is incompatible with the basic knowledge and competence expected of persons licensed to practice medicine or any particular aspect or specialty thereof.
(d) Has engaged in dishonest or unprofessional conduct or has been grossly or repeatedly negligent in practicing medicine or in performing activities ancillary to the practice of medicine or any particular aspect or specialty thereof, or has intentionally injured a patient while practicing medicine or performing such ancillary activities.
(e) Has employed or allowed an unlicensed person to practice in the licensee’s office.
(f) Has failed to provide adequate safeguards in regard to aseptic techniques or radiation techniques.
(g) Has included in advertising any statement of a character tending to deceive or mislead the public or any statement claiming professional superiority.
(h) Has advertised the use of any drug or medicine of an unknown formula or any system of anesthetic that is unnamed, misnamed, misrepresented, or not in reality used.
(i) Has willfully or repeatedly violated any provision of this chapter or any substantive rule of the board.
(j) Has been convicted of a felony under the laws of the United States or any state.
(k) Has failed to maintain adequate medical record documentation on diagnostic and therapeutic treatment provided or has unreasonably delayed medical record transfer, or violated RSA 332-I.
(l) Has knowingly obtained, attempted to obtain or assisted a person in obtaining or attempting to obtain a prescription for a controlled substance without having formed a valid physician-patient relationship pursuant to RSA 329:1-c.
VI-a. The board may take non-disciplinary remedial action against any person licensed by it upon finding that the person is afflicted with physical or mental disability, disease, disorder, or condition deemed dangerous to the public health. Upon making an affirmative finding, the board, may take non-disciplinary remedial action:
(a) By suspension, limitation, or restriction of a license for a period of time as determined reasonable by the board.
(b) By revocation of license.
(c) By requiring the person to submit to the care, treatment, or observation of a physician, counseling service, health care facility, professional assistance program, or any combination thereof which is acceptable to the board.
(d) By requiring the person to practice under the direction of a physician in a public institution, public or private health care program, or private practice for a period of time specified by the board.
VII. The board, upon making an affirmative finding under paragraph VI, may take disciplinary action in any one or more of the following ways:
(a) By reprimand.
(b) By suspension, limitation, or restriction of a license or probation for a period of time as determined reasonable by the board.
(c) By revocation of license.
(d) By requiring the person to submit to the care, treatment, or observation of a physician, counseling service, health care facility, professional assistance program, or any combination thereof which is acceptable to the board.
(e) By requiring the person to participate in a program of continuing medical education in the area or areas in which the person has been found deficient.
(f) By requiring the person to practice under the direction of a physician in a public institution, public or private health care program, or private practice for a period of time specified by the board.
(g) By assessing administrative fines in amounts established by the board which shall not exceed $3,000 per offense, or, in the case of continuing offenses, $300 for each day that the violation continues, whichever is greater.
VII-a. The board may issue a nondisciplinary confidential letter of concern to a licensee advising that while there is insufficient evidence to support disciplinary action, the board believes the physician or physician assistant should modify or eliminate certain practices, and that continuation of the activities which led to the information being submitted to the board may result in action against the licensee’s license. This letter shall not be released to the public or any other licensing authority, except that the letter may be used as evidence in subsequent disciplinary proceedings by the board, and shall be sent to a physician assistant’s supervising physician.
VIII. Disciplinary or non-disciplinary remedial action taken by the board under this section may be appealed to the supreme court under RSA 541. [However, no sanction or restriction imposed by the board shall be stayed during appeal.]
IX. No civil action shall be maintained against the board or any member of the board or its agents or employees with regard to any action or activity taken in the performance of any duty or authority established by this chapter. No civil action shall be maintained against any organization or its members or against any other person for or by reason of any good faith statement, report, communication, or testimony to the board or determination by the board in relation to proceedings under this chapter.
IX-a. Any persons who have had their licenses to practice medicine revoked or suspended shall be barred from practicing any other human health care activities, including psychotherapy, whether or not such other activity is licensed or certified by another licensing agency.
X, XI. [Repealed.]
XII. Allegations of professional misconduct or other violations of this chapter enforceable by the board shall be brought within 6 years from the time the board could reasonably have discovered the act, omission or failure complained of, except that conduct which resulted in a criminal conviction or in a disciplinary action by a relevant licensing authority in another jurisdiction may be considered by the board without time limitation in making licensing or disciplinary decisions if the conduct would otherwise be a ground for discipline under this chapter. The board may also consider licensee conduct without time limitation when the ultimate issue before the board involves a pattern of conduct or the cumulative effect of conduct which becomes apparent as a result of conduct which has occurred within the 6-year limitation period prescribed by this paragraph
XIII. When an investigation of a complaint against a licensee is determined to be unfounded, the board shall dismiss the complaint and explain in writing to the complainant its reason for dismissing the complaint. The board may destroy all information collected during the course of the investigation after 3 years. The board shall retain a record only noting that an investigation was conducted and that the board determined the complaint to be unfounded. For the purpose of this paragraph, a complaint shall be deemed to be unfounded if it does not fall within the jurisdiction of the board, does not relate to the actions of the licensee, or is determined by the board to be frivolous.
206:15 Investigations. Amend RSA 329:18 to read as follows:
329:18 Investigations.
I. The board, through the medical review subcommittee, may investigate possible misconduct by licensees and applicants for licensure, as well as the unauthorized practice of medicine and other matters within the scope of this chapter. Investigations may be conducted formally, after issuance of a board order setting forth the general scope of the investigation, or informally, without such an order. In either case, board investigations and the information gathered in such investigations, including information provided to the board under RSA 329:17, I(b), III, IV, and V and RSA 329:18, V, shall be exempt from the public disclosure provisions of RSA 91-A, except to the extent such information may later become the subject of a public disciplinary hearing. The board may disclose information acquired in an investigation to law enforcement or health licensing agencies in this state or any other jurisdiction, or in response to specific statutory requirements or court orders.
I-a. Any board member who has, or whose spouse or dependents have, a private interest or professional relationship which may directly or indirectly affect or influence the board member’s ability to investigate or consider a complaint, shall recuse himself or herself from any investigation or disciplinary action against such licensee. If the chairperson of the board is recused the remaining board members shall elect an acting chairperson from among the board. The chairperson or acting chairperson may appoint a former board member to replace the recused board member during the investigation and proceedings against the licensee.
II. The board may retain expert witnesses or other qualified persons to assist with any investigation or adjudicatory proceeding. Members of the board are not eligible for retainment. The board may also retain special legal counsel in instances when recommended by the attorney general. To the extent the board’s existing appropriation does not include funds covering such expenditures, the board may request the governor and council to expend funds not otherwise appropriated on the condition that such funds be recovered in the board’s next budget at the rate of 125 percent.
III. The form taken by an investigation is a matter reserved to the discretion of the board. The board may conduct or authorize investigations on an ex parte basis.
IV.(a) The board, the medical review subcommittee, the board investigator, or the medical review subcommittee investigator, may administer oaths or affirmations, preserve testimony and issue subpoenas for witnesses and for documents and things only in a formal investigation or an adjudicatory hearing, except that subpoenas for medical records and pharmacy records, as provided in paragraph V, may be issued at any time.
(b) The board, the medical review subcommittee, the board investigator, or the medical review subcommittee investigator, may serve a subpoena on any licensee of the board by certified mail, but shall serve a subpoena on any other person in accordance with the procedures and fee schedules used in superior court.
(c) Persons licensed by the board shall not be entitled to a witness fee or mileage expenses for travel within the state, which are necessary to respond to a subpoena [issued by the board].
(d) Any board-issued subpoena related to a board hearing or investigation shall be valid if annotated “Fees Guaranteed by the New Hampshire Board of Medicine.’’
(e) A minimum of 48 hours’ notice shall be given for compliance with a subpoena issued under this chapter.
V. The board, the medical review subcommittee, the board investigator, or the medical review subcommittee investigator, may at any time subpoena medical, pharmacy, or billing records related to medical diagnosis or treatment from its licensees, or other health care providers, health care facilities, health insurance companies, health maintenance organizations, and medical and hospital service corporations licensed or certified in this state to the extent that the records sought are relevant to matters within the board’s regulatory authority. Such subpoenas shall be served by certified mail or by personal delivery to the address shown on the respondent’s current license or certificate, and shall require no witness or other fee. A minimum of 15 days’ advance notice shall be allowed for complying with a subpoena duces tecum issued under this paragraph.
VI. All licensees shall have the duty to notify the board of their current business and residence addresses. A licensee shall receive adequate notice of any hearing or other action taken under this chapter if notice is mailed in a timely fashion to the most recent home or business address furnished to the board by the licensee.
VII. The board may at any time require a licensee or license applicant to provide a detailed, good faith written response to allegations of possible professional misconduct or grounds for non-disciplinary remedial action being investigated by the board. The board may also require the licensee or applicant to provide the board with complete copies of records concerning any patient whose treatment may be material to allegations of possible professional misconduct or grounds for non-disciplinary remedial action being investigated by the board. Licensees and applicants shall respond to either type of request within 15 days from the date of the request, or within such greater time period as the board may specify.
VIII. Any person may file a written complaint with the board which charges that a licensee or license applicant has engaged in professional misconduct or should not be licensed. Such complaints shall be treated as petitions for the commencement of disciplinary proceedings, or if appropriate, non-disciplinary remedial proceedings, shall be investigated by the board, and shall be exempt from the time limitations of RSA 541-A:29. Some or all of the allegations in a complaint may be consolidated with another complaint or with issues which the board wishes to investigate or hear on its own motion. If an investigation of a complaint results in an offer of settlement by the licensee, the board may settle the allegations against the licensee without the consent of a complainant, provided that material facts are not in dispute and the complainant is given an opportunity to comment on the terms of the proposed settlement.
IX. Any health care facility system’s deficiencies or concerns identified in the course of an investigation shall be communicated by the board to the administrator of the facility and to the bureau of health facilities administration. This paragraph shall apply only to health care facilities that are licensed under RSA 151.
206:16 Hearings. Amend RSA 329:18-a, I to read as follows:
I. Allegations of misconduct or lack of professional qualifications which are not settled informally shall be heard by the board or a panel of the board, with a minimum of 3 members appointed by the president of the board. The panel for a hearing on a physician-licensee shall consist of a minimum of 2 physicians and one public member. The panel for a hearing on a physician assistant-licensee shall consist of a minimum of one physician, one physician assistant, and one public member. Such hearing shall be an open public hearing. Any member of the board, or other person qualified to act as a hearing officer and duly designated by the board, shall have the authority to preside at such a hearing and to issue oaths or affirmations to witnesses.
206:17 Unlawful Practice. RSA 329:24 is repealed and reenacted to read as follows:
329:24 Unlawful Practice.
I. Whoever, not being licensed or otherwise authorized according to the law of this state, shall advertise oneself as practicing medicine, or shall practice medicine, according to the meaning of RSA 329, or in any way hold oneself out as qualified so to do, or call oneself a “physician,’’ or whoever does any such acts after receiving notice that such person’s license has been revoked is engaged in unlawful practice.
II. A person who engages in unlawful practice shall be guilty of a misdemeanor for the first offense by an individual or entity; and for any subsequent offense the person shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person.
III. The board, after hearing and upon making an affirmative finding under RSA 329:24, I, that the person is engaged in unlawful practice, may take action in any one or more of the following ways:
(a) A cease and desist order in accordance with RSA 329:24, IV.
(b) The imposition of an administrative fine not to exceed $50,000.
(c) The imposition of an administrative fine for continuation of unlawful practice in the amount of $1,000 for each day the activity continues after notice from the board that the activity shall cease.
(d) The denial or conditional denial of a license application, application for renewal, or application for reinstatement.
IV. The board is authorized to issue a cease and desist order against any person or entity engaged in unlawful practice. The cease and desist order shall be enforceable in superior court.
V. The attorney general, the board, or the prosecuting attorney of any county or municipality where the act of unlawful practice takes place may maintain an action to enjoin any person or entity from continuing to do acts of unlawful practice. The action to enjoin shall not replace any other civil, criminal, or regulatory remedy. An injunction without bond is available to the board.
206:18 Proceedings of the Medical Review Subcommittee. Amend RSA 329:29 to read as follows:
329:29 Proceedings of the Medical Review [Committee] Subcommittee. All proceedings, records, findings and deliberations of the medical review [committees of a duly established county or state medical society or of any such committees of the board of medicine are confidential and privileged and shall not be used or available for use or subject to process in any other proceeding] subcommittee related to the investigations of individual licensees are confidential and privileged and shall not be used or available for use or subject to process in any other proceeding. The manner in which [a] the medical review [committee] subcommittee and each member thereof deliberates, decides or votes on any matter submitted to it is likewise confidential and privileged and shall not be the subject of inquiry in any other proceeding. [A] The medical review [committee] subcommittee may provide information to a hospital committee organized to evaluate matters relating to the care and treatment of patients or to reduce morbidity and mortality, in accordance with RSA 151:13-a, and subject to the privileges and immunities set forth in that section. All medical review subcommittee proceedings that are unrelated to individual licensees or individual patient care shall be conducted in public session and shall be subject to RSA 91-A.
206:19 Continuing Medical Education Requirement. Amend RSA 329:16-g to read as follows:
329:16-g Continuing Medical Education Requirement. As a condition of renewal of license, the board shall require each licensee to show proof at least at every biennial license renewal that the licensee has completed 100 hours of approved continuing medical education program within the preceding 2 years. For the purposes of this section, an approved continuing medical education program is a program designed to continue the education of the licensee in current developments, skills, procedures, or treatment in the licensee's field of practice, which has been certified by a national, state, or county medical society or college or university [approved by the board]. There shall be a complete audit of all continuing education credits annually by the New Hampshire Medical Society. Each licensee shall submit a continuing medical education report with copies of continuing medical education course certificates earned by the licensee and other documents which establish that continuing medical education course requirements have been met, using a form approved by the board. The complete audit shall include the collection, review, verification, and preservation of the continuing medical education documentation of each licensed physician and a report which records the credits awarded to each licensee during the 2-year period applicable to each licensee. The fee charged to licensees for continuing medical education verification shall not exceed 125 percent of the actual cost of providing the service. The New Hampshire Medical Society is prohibited from using any information from this program for promotional purposes or any other purpose not necessary for continuing education verification.
206: 20 Repeal. RSA 329:10 and RSA 329:11, relative to examinations of applicants, are repealed.
206: 21 Effective Date. This act shall take effect July 1, 2009.
Approved: July 15, 2009
Effective Date: July 1, 2009