Revision: Nov. 13, 2017, 1:03 p.m.
HB 1665 - AS INTRODUCED
HOUSE BILL 1665
SPONSORS: Rep. H. Moffett, Merr. 9; Rep. Umberger, Carr. 2
COMMITTEE: Executive Departments and Administration
This bill clarifies the authority of the governing boards of allied health professionals concerning individuals who are certified by such boards.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eighteen
Be it Enacted by the Senate and House of Representatives in General Court convened:
I-a. Issue initial certifications, conditional initial certifications, renewed certifications, conditionally renewed certifications, reinstated certifications, and conditionally reinstated certifications to persons who are eligible if authorized to do so by the board's practice act.
II. Investigate licensees and certified individuals and take necessary disciplinary action against them.
328-F:10 Records of Licensees and Certified Individuals and Disciplinary History.
I. Each governing board shall maintain a list of living or deceased persons who have ever been licensed or certified to practice. The list shall show the [licensee's] last known place of employment, the last known place of residence, the number of the license or certificate, and the most recent date of issuance, renewal, or reinstatement of the license or certificate. No information on the list shall be transferred to another entity for commercial use without the permission of the person to whom the information applies.
I. The governing boards shall adopt rules pursuant to RSA 541-A establishing:
(a) The eligibility requirements for initial licensure and for initial certification if certification of individuals is authorized by their practice acts.
(b) The eligibility requirements for license renewal, including any continuing competency requirements and any requirements for education, clinical experience, and training.
(c) The eligibility requirements for renewal of certification, including any continuing competency requirements and any requirements for education, clinical experience, and training.
(d) If the governing boards issue conditional licenses or certifications, [renewals,] conditional renewal of licenses or certifications, or [reinstatements] conditional reinstatement after lapse [of license] or suspension of licenses or certifications, the circumstances under which [they] these are issued and the standards for the imposition of the conditions.
[(d)] (e) The application procedures and eligibility requirements, including any continuing competency requirements, for the reinstatement of licenses suspended for disciplinary reasons and for such reinstatement of certifications if authorized by their practice acts.
[(e)] (f) The application procedures and eligibility requirements, including any continuing competency requirements, for the reinstatement of lapsed licenses and for such reinstatement of certifications if authorized by their practice acts.
[(f)] (g) The design and content of supplemental application forms requesting applicant information specific to the profession for which the applicant is applying, which forms may require a notarized affidavit that the information provided in the application is complete and accurate, and which do not request information already provided on forms adopted under RSA 328-F:13, IV.
[(g)] Application procedures.
[(h)] The allocation of disciplinary sanctions in cases of misconduct by licensees and by certified individuals.
I. Procedures for the voluntary surrender of licenses and certifications issued by the governing boards.
I. The board of directors shall establish fees for:
(a) The processing of applications for initial and reinstatement of licensure or certification.
(b) Initial licenses and certifications.
(c) Renewal of licenses and certifications.
(d) Late filing of applications for license renewal and renewal of certification.
(e) Reinstatement of licenses [after lapse] and certifications.
(f) Transcribing and transferring records.
(g) The costs of a hearing by any governing board at which the issue is denial of, or imposition of conditions on, an initial license or certification, including the per diem and mileage of board members attending the hearing and the cost of a shorthand court reporter if one is used to record the hearing.
[(h) Initial certification, certification renewal, and certification reinstatement of speech-language assistants, as defined in RSA 326-F:1, II-a.]
328-F:21 Administrative Obligations of Licensees and Certified Individuals.
I. Licensees and certified individuals shall maintain their current business and home addresses on file with their governing boards. Any changes in address shall be provided to the office no later than 30 days from the date of the change.
II. Licensees and certified individuals shall notify their governing boards if licenses or other proof of licensure are lost or stolen.
III. The governing boards may adopt rules pursuant to RSA 541-A that require licensees and certified individuals to maintain on file with their governing boards an active email address.
328-F:23 Disciplinary Action.
I. Each governing board is authorized to undertake investigations and disciplinary proceedings upon:
(a) The board's initiative.
(b) A written complaint made by any person complaining that a licensee or certified individual has committed an act of misconduct and specifying the nature of the misconduct.
(c) A written complaint made by any person that a licensee or certified individual or any other person is engaged in unauthorized practice.
(d) Notification by a licensing or certifying agency of this state that a licensee has been disciplined by that agency.
(e) Notification by the regulatory authority of another domestic or foreign jurisdiction that a licensee or certified individual has been disciplined in that jurisdiction.
(f) A report made pursuant to the obligation to report imposed by this chapter.
II. Misconduct sufficient to support disciplinary proceedings shall include:
(a) Knowingly or negligently providing inaccurate material information to the board or failing to provide complete and truthful material information upon inquiry by the board, including during the process of applying for a license or certification, [license] renewal of a license or certification, [and license] or reinstatement of a license or certification.
(b) Any criminal conviction in any jurisdiction, excluding traffic violations, or failure to report such conviction within 30 days.
(c) Violation of the ethical standards adopted by the governing board.
(d) Sexual relations with, or sexual harassment of, a client or patient.
(e) Failure to provide care with reasonable skill, safety and regard for client or patient rights, whether or not the client or patient has suffered injury.
(f) Actual or potential inability to render care with reasonable skill and safety by reason of illness, by reason of use of alcohol or drugs or any other material, or by reason of mental or physical condition.
(g) Disciplinary action by a regulatory authority in another domestic or foreign jurisdiction.
(h) Failure to take appropriate action to safeguard individuals from incompetent counselors and health care practitioners, whether or not they are licensed in this state.
(i) Practice without a currently valid license or certification.
(j) Violation of any provision of this chapter, of any governing board's practice act or rule adopted pursuant to RSA 541-A, or of any state or federal law reasonably related to the [licensee's] authority of the licensee or certified individual to practice or ability of the licensee or certified individual to practice safely.
III. Each governing board is authorized to impose sanctions upon a finding of misconduct resulting from disciplinary proceedings or the agreement of the licensee or certified individual that he or she has engaged in specified misconduct.
IV. Sanctions may include:
(a) [License] Revocation of license or certification.
(b) [License] Suspension of license or certification for a specified period of time.
(c) [License] Suspension of license or certification conditioned on the achievement of specified continuing competency requirements or continuing education, clinical experience or training.
(d) [License] Suspension of license or certification conditioned on successful participation in specified mental or physical health treatment, a rehabilitative program, counseling, a professional assistance program, or [in] any other program designed to overcome the deficiency or condition [in the licensee] which appears to have caused the misconduct.
(e) A requirement that the [licensee's] practice or the licensed or certified individual be supervised for a specified period of time by a licensee or certified individual practicing the same allied health profession.
(f) The imposition of an administrative fine not to exceed $1,000 for:
(1) An act of misconduct by a licensee or certified individual.
(2) The practice of an allied health profession by a person who was once licensed or certified to practice such profession but does not currently hold a valid license or certificate or who is practicing in violation of the conditions upon which he or she is licensed or certified.
(g) The imposition of an administrative fine for continuation of an activity specified in subparagraph (f) in the amount of $100 for each day the activity continues after notice from the board that the activity shall cease.
V. Each governing board is authorized to deny an application for [license] renewal or reinstatement of a license or certification as an additional sanction.
328-F:24 Investigations and Disciplinary Proceedings.
I. Governing boards may investigate allegations of misconduct by licensees and certified individuals, whether the allegations appear in a written complaint or come to the attention of the board in another way. The form taken by an investigation is a matter within the discretion of the board, which may conduct an investigation on an ex parte basis.
II. Unless used in disciplinary proceedings or disclosed to law enforcement or health licensing agencies in this state or any other jurisdiction or in accordance with specific statutory requirements or court orders, the following information obtained during investigations shall be held confidential and shall be exempt from the disclosure requirements of RSA 91-A:
(a) Complaints received by the board.
(b) Information and records acquired by the board during its investigation.
(c) Reports and records made by the board as a result of its investigation.
(d) Patient or client records, including clinical records, files, oral and written reports relating to diagnostic findings or treatment of [licensees'] patients or clients of licensees and certified individuals and oral and written information from which the identity of [licensees'] such patients or clients or their families can be derived.
III. Governing boards are authorized to conduct disciplinary proceedings in accordance with procedural rules adopted by the board of directors.
IV. For the purpose of carrying out investigations and disciplinary proceedings, each governing board is authorized to:
(a) Retain qualified experts who are not members of the governing board through the office of professional licensure and certification.
(b) Retain legal counsel when authorized to do so by the attorney general through the office of professional licensure and certification.
(c) Issue subpoenas for persons, relevant documents and relevant things in accordance with the following conditions:
(1) Subpoenas for persons shall not require compliance in less than 48 hours after receipt of service.
(2) Subpoenas for documents and things shall not require compliance in fewer than 15 days after receipt of service.
(3) Service shall be made on licensees and certified individuals by certified mail to the address on file with the board or by hand and shall not entitle them to witness or mileage fees.
(4) Service shall be made on persons who are not licensees or certified individuals in accordance with the procedures and fee schedules of the superior court, and the subpoenas served on them shall be annotated "Fees Guaranteed by the New Hampshire Office of Allied Health Professionals.''
V. The governing board may dismiss allegations of misconduct if the investigation shows the allegations to be without basis in fact or law.
VI. At any time before or during disciplinary proceedings, complaints and issues may be disposed of by written settlement agreement signed by the board and the licensees or certified individuals involved, provided that any complainant shall have the opportunity, before the settlement agreement has been executed, to comment on the terms of the proposed settlement.
VII. Disciplinary proceedings shall be open to the public. Final board actions having the effect of terminating disciplinary proceedings, whether taken before, during or after the completion of the proceedings, shall be set forth in a written record which shall be available to the public after service upon the licensees or certified individuals involved.
VIII. In carrying out disciplinary proceedings, each governing board shall have the authority to:
(a) Hold pre-hearing conferences exempt from the provisions of RSA 91-A.
(b) Appoint a board member or other qualified person as presiding officer.
(c) Administer, and authorize an appointed presiding officer to administer, oaths and affirmations.
(d) Dismiss the proceedings in a written order of dismissal on the basis of:
(1) A finding that there are no significant allegations of misconduct or unauthorized practice.
(2) A finding based on undisputed material facts that the licensees or certified individuals involved did not engage in misconduct or unauthorized practice.
(3) A written settlement agreement signed by the board and the licensees or certified individuals involved.
IX. The governing boards shall have no obligation or authority to appoint or pay the fees of attorneys representing licensees or certified individuals during investigations or disciplinary proceedings.
I. Persons and entities regulated by the state, including but not limited to, licensees, certified individuals, insurance companies, health care organizations, and health care facilities shall report to the board of directors and the appropriate governing board any criminal conviction of a licensee or certified individual or any determination by a regulatory agency indicating that a licensee or certified individual has violated this chapter or the practice act of [the licensee's] his or her governing board. Persons and entities so reporting shall be immune from civil liability if the report is made in good faith.
II. Every individual, agency, facility, institution or organization regulated by the state and employing licensed allied health professionals within the state shall report to the appropriate governing board within 30 days any act by [a licensee] an individual licensed or certified by the board that appears to constitute misconduct. Persons and entities so reporting shall be immune from civil liability if the report is made in good faith.
III. An administrative fine of $500 shall be imposed on any person or entity failing to make a report required by this section.
IV. Persons submitting to any governing board a complaint of misconduct by [its licensee] an individual licensed or certified by the board shall be immune from civil liability if the complaint is made in good faith.
328-F:26 Temporary Suspension Where Imminent Threat. In cases involving imminent danger to life or health, the governing boards may order suspension of a license or certification pending hearing for a period of no more than 10 working days, unless the licensee or certified individual agrees in writing to a longer period. In such cases, the board shall comply with RSA 541-A:30.
I. Nothing in this chapter or the practice acts of the governing boards shall be construed to restrict persons licensed or certified under any other laws of this state from engaging in the practice or profession for which they are licensed or certified.
II. Practice of an allied health profession by any person who is notff[, and was never,] licensed or certified to practice such profession shall constitute unauthorized practice. A business which holds itself out, through advertising or in any other way, as providing an allied health service but does not have available to supervise its services an allied health professional licensed or certified to provide the services which the business purports to offer, is engaged in unauthorized practice.
328-F:28 Privileged Communications. The confidential communications between licensed or certified allied health [licensees] practitioners and their clients or patients are placed on the same legal basis as those between physician and patient, and, except as otherwise provided by law, no allied health [licensee] practitioner shall be required to disclose such privileged communications. Confidential communications between a patient or client and any person working under the supervision of such [licensee] practitioner that are customary and necessary for diagnosis and treatment are privileged to the same extent as though those communications were with the supervising [licensee] licensed or certified allied health practitioner. This section shall not apply to investigations and hearings conducted by the governing boards or by any other agency regulating health professions in the state.
328-F:29 Revocation and Voluntary Surrender of Licenses and Certifications.
I. No license, conditional license, provisional license, renewed license, or reinstated license that has been revoked by the governing board of issuance shall be reinstated or reissued at any time.
I-a. No certification, conditional certification, renewed certification, or reinstated certification that has been revoked by the governing board of issuance shall be reinstated or reissued at any time.
II. The practice of an allied health profession by a person whose license, conditional license, provisional license, renewed license, or reinstated license has been revoked constitutes unauthorized practice.
II-a. The practice of an allied health profession by a person whose certification, conditional certification, renewed certification, or reinstated certification has been revoked constitutes unauthorized practice.
III. No license, conditional license, provisional license, renewed license, or reinstated license shall be surrendered by the licensee unless the governing board issuing the license accepts its surrender in writing. The governing board may refuse to accept [its] the surrender while the board is investigating possible misconduct by the licensee or disciplinary proceedings involving the licensee are pending.
IV. No certification, conditional certification, renewed certification, or reinstated certification shall be surrendered by the certified individual unless the governing board of issuance accepts the surrender in writing. The governing board may refuse to accept the surrender while the board is investigating possible misconduct by the certified individual or disciplinary proceedings involving the certified individual are pending.