Revision: May 4, 2023, 3:30 p.m.
Sen. Perkins Kwoka, Dist 21
April 25, 2023
2023-1499s
02/05
Amendment to HB 532-FN
Amend the title of the bill by replacing it with the following:
AN ACT relative to the licensure and regulation of music therapists and relative to the organization of the office of professional licensure and certification.
Amend the bill by inserting after section 7 the following and renumbering the original section 8 to read as 29:
8 New Chapter; Office of Professional Licensure and Certification. RSA 310 is repealed and reenacted to insert the following new chapter:
CHAPTER 310
OFFICE OF PROFESSIONAL LICENSURE AND CERTIFICATION
310:1 Purpose. The purpose of the office of professional licensure and certification is to promote efficiency and economy in the administration of the business processing, record keeping, and other administrative and clerical operations of professional licensing and certification boards, including both professional healthcare licensing and professional technical licensing. The individual licensing and certification boards that are organized under the office of professional licensure and certification have specialized knowledge and experience and are separate and distinct for the purpose of regulating their various professions. Notwithstanding the unique regulatory role of each board, the legislature finds that there are opportunities for improving efficiency and customer service by providing for the joint administration of the boards' administrative, clerical, business processing, and record keeping functions. Except as provided in this section, the licensing and certification boards and entities organized under the office of professional licensure and certification shall exercise the powers, duties, functions, and responsibilities granted by statute.
310:2 Definitions; Establishment.
I. In this chapter, and as appropriate when used in any chapter listed in paragraph II:
(a) "Allegation" means a written statement received by the office describing a claim of misconduct of a licensee.
(b) "Complaint" means a communication of alleged misconduct containing information that, as the appropriate board shall determine, if true, could violate ethical codes, administrative rules, or the law.
(c) "Investigation" means procedures for investigation of allegations and complaints of misconduct in accordance with RSA 310:9.
(d) “Lapse” when referring to licenses shall mean expire.
(e) “License” shall include licenses, certifications or registrations required to practice a regulated profession, and shall include apprentice registrations.
(f) “Office” or "OPLC" shall mean the office of professional licensure and certification.
II. The office of professional licensure and certification shall consist of the division of licensing and board administration and the division of enforcement, under the executive director as the administrative head of the agency. The boards within the office of professional licensure and certification shall consist of:
(a) Advisory board of body art practitioners under RSA 314-A.
(b) Advisory board of court reporters under RSA 310-A:163.
(c) Advisory board of massage therapists under RSA 328-B.
(d) Advisory board of medical imaging and radiation therapy under RSA 328-J.
(e) Advisory board of recreational therapists established under RSA 326-J.
(f) Advisory board of respiratory care practitioners established under RSA 326-E.
(g) Advisory board of reflexology, structural integration, and Asian bodywork therapy under RSA 328-H.
(h) Board of accountancy under RSA 309-B.
(i) Board of acupuncture licensing under RSA 328-G.
(j) Board of architects under RSA 310-A:29.
(k) Board of barbering, cosmetology, and esthetics under RSA 313-A.
(l) Board of chiropractic examiners under RSA 316-A.
(m) Board of dental examiners under RSA 317-A.
(n) Board of directors, office of licensed allied health professionals under RSA 328-F.
(o) Board of examiners of nursing home administrators under RSA 151-A.
(p) Board of family mediator certification under RSA 328-C.
(q) Board of home inspectors under RSA 310-A:186.
(r) Board of land surveyors under RSA 310-A:55.
(s) Board of landscape architects under RSA 310-A:142.
(t) Board of licensed dietitians under RSA 326-H.
(u) Board of licensing for alcohol and other drug use professionals under RSA 330-C.
(v) Board of licensing for foresters under RSA 310-A:100.
(w) Board of manufactured housing under RSA 205-A:25.
(x) Board of medicine under RSA 329.
(y) Board of mental health practice under RSA 330-A.
(z) Board of natural scientists under RSA 310-A:81.
(aa) Board of nursing under RSA 326-B.
(bb) Board of pharmacy under RSA 318.
(cc) Board of podiatry under RSA 315.
(dd) Board of psychologists under RSA 329-B:3.
(ee) Board of professional engineers under RSA 310-A:3.
(ff) Board of professional geologists under RSA 310-A:120.
(gg) Board of psychologists under RSA 329-B.
(hh) Board of registration of funeral directors and embalmers under RSA 325.
(ii) Board of registration in optometry under RSA 327.
(jj) Board of registration of medical technicians under RSA 328-I.
(kk) Board of septic system evaluators under RSA 310-A:206.
(ll) Board of veterinary medicine under RSA 332-B.
(mm) Electricians’ board under RSA 319-C.
(nn) Electrology advisory committee under RSA 314.
(oo) Genetic counselors governing board established under RSA 328-F and RSA 326-K.
(pp) Governing board of athletic trainers established under RSA 328-F and RSA 326-G.
(qq) Guardians ad litem board under RSA 490-C.
(rr) Installation standards board under RSA 205-D.
(ss) Mechanical licensing board under RSA 153:27-a.
(tt) Midwifery council under RSA 326-D.
(uu) Naturopathic board of examiners under RSA 328-E.
(vv) Occupational therapy governing board established under RSA 326-F; and RSA 326-C.
(ww) Physical therapy governing board established under RSA 328-F and 328-A.
(xx) Real estate appraiser board under RSA 310-B.
(yy) Real estate commission under RSA 331-A.
(zz) Registration of ophthalmic dispensers under RSA 327-A.
(aaa) Speech-language pathology and hearing care provider governing board established under RSA 328-F and 326-F.
(bbb) Assessing certification board under RSA 310-C.
310:3 Executive Director; Directors; Unclassified Personnel.
I. The executive director of the office of professional licensure and certification shall be an unclassified employee of the state. The executive director shall be appointed by the governor, with consent of the council, and shall serve for a term of 4 years. The executive director shall be qualified to hold that position by reason of professional competence, education, and experience. A vacancy shall be filled for the remainder of the unexpired term in the same manner as the original appointment.
II. The executive director shall nominate for appointment by the governor and council the unclassified positions of director of the division of licensing and board administration and director of the division of enforcement. Each director shall be qualified for the position by reason of education, competence, and experience and shall serve at the pleasure of the executive director for a term of 4 years.
III. The executive director shall nominate for appointment by the governor and council the unclassified position of chief pharmacy compliance investigator and 2 unclassified pharmacy investigator positions. Each inspector shall be qualified for the position by reason of education, competence, and experience and shall serve at the pleasure of the executive director.
IV. The executive director shall nominate for appointment by the governor and council the unclassified positions of agency chief legal officer and board chief legal officer. Each officer shall be qualified for the position by reason of education, competence, and experience and shall serve at the pleasure of the executive director.
V. The salaries of the executive director, each division director, each legal officer, the chief pharmacy investigator, and each pharmacy investigator shall be as specified in RSA 94:1-a.
310:4 Duties of Executive Director.
I. The executive director, as the administrative head of the office of professional licensure and certification, may employ such clerical or other assistants as are necessary for the proper performance of the office's work and may make expenditures for any purpose which are reasonably necessary, according to the executive director, for the proper performance of the office's duties under this chapter. The office shall contract for the services of investigators, presiding officers, legal counsel, and industry experts as necessary and in consultation with the appropriate board.
II. The executive director of the office of professional licensure and certification shall be responsible for:
(a) Supervision of the division directors and chief legal officers.
(b) Employment of personnel needed to carry out the functions of the office and the boards.
(c) The examination, processing and approval or denial of an application for licensure, certification, or registration for all license types governed by the office or a board listed in RSA 310:2, based on set objective standards developed by the boards, and in accordance with RSA 541-A.
(d) The investigation of all complaints of professional misconduct in accordance with RSA 310:9.
(e) Maintenance of the official record of the office and the boards in accordance with the retention policy established by the office.
(f) Drafting and coordinating rulemaking for all boards within the office in accordance with RSA 541-A, with the advice and recommendations of the boards.
(g) Maintaining the confidentiality of information, documents, and files in accordance with RSA 91-A.
(h) Submitting, by November 1, to the speaker of the house of representatives, the president of the senate, the chairpersons of the house and senate executive departments and administration committees, and the governor, an annual report summarizing the transactions of the preceding fiscal year and a complete statement of the receipts and expenditures of the office of professional licensure and certification. The report shall be posted on the website of the office of professional licensure and certification immediately upon submission.
(i) Notwithstanding any other provisions of law to the contrary, for the performance of the administrative, clerical, and business processing responsibilities under paragraph II(b), the office and all boards shall accept electronic signatures and scans of signed documents in addition to original signatures.
310:5 Administration of the Office of Professional Licensure and Certification; Funding.
I. The executive director of the office of professional licensure and certification shall establish and collect all license, certification, and renewal fees, as well as any necessary administrative fees for each professional regulatory board administered by the office. Such fees shall be sufficient to produce estimated revenues up to 125 percent of the total operating expenses for the office, as determined by averaging the operating expenses for the office for the previous 2 fiscal years.
II. There is hereby established the office of professional licensure and certification fund into which the fees collected under paragraph I shall be deposited. The fund shall be a separate, dedicated, nonlapsing fund, continually appropriated to the office for the purpose of paying all costs and salaries associated with the office. Funds in excess of $5,000,000 shall lapse to the general fund at the close of each biennium.
III. There is hereby established a dedicated, nonlapsing fund to be known as the New Hampshire health professionals' program administration fund for the administration of the professionals' health program, including the professionals' health program in RSA 329:13-b, the alternative recovery monitoring program in RSA 326-B:36-a, and the impaired pharmacist program set forth in RSA 318:29-a, with a fee charged to licensees at the time of initial licensure, renewal licensure, or reinstatement of licensure, for the board of medicine, board of dental examiners, pharmacy board, board of nursing, board of veterinary medicine, board of psychologists, board of chiropractic examiners, board of mental health practice, midwifery council, board of registration in optometry, board of podiatry, board of licensed dietitians, and board of licensing for alcohol and other drug use professionals, not to exceed 125 percent of the actual cost of providing the services. Other health and technical professions boards may be added to program at the same annual fee per licensee. The moneys in this fund shall be continually appropriated to the office.
IV. The office of professional licensure and certification shall be responsible for the financing of any interstate compact joined by the state that affects a profession governed by a board listed in RSA 310:2. Such financing shall be from funds deposited in the office of professional licensure and certification fund.
310:6 Rulemaking Authority. The executive director of the office of professional licensure and certification shall adopt rules, relative to RSA 541-A, for the following:
I. All fees set forth in RSA 310:5, with the advice and recommendations of the respective board. Fees shall be reassessed, at a minimum, every five years.
II. Such organizational and procedural rules necessary to administer the boards in the office, including rules governing the administration of complaints and investigations, hearings, disciplinary and non-disciplinary proceedings, inspections, payment processing procedures, and application procedures.
III. The rate of per diem compensation and reimbursable expenses for all boards within the office.
IV. Rules governing the professionals' health program as set forth in RSA 310:5.
V. Temporary licenses to out-of-state health care professionals who present evidence of an active license in good standing from another jurisdiction. The temporary license shall be valid for 120 days, or until the office acts on an application for full licensure, whichever happens first, and shall not be renewed, except that a complete application for full licensure before the expiration of the temporary license shall continue the validity of the temporary license until the office has acted on the application. All individuals licensed under rules adopted pursuant to this subparagraph shall be subject to the jurisdiction of the state licensing body for that profession.
310:7 Telemedicine and Telehealth Services.
I. For this section:
(a) "Asynchronous interaction" means an exchange of information between a patient and a health care professional that does not occur in real time.
(b) "Synchronous interaction" means an exchange of information between a patient and a health care professional that occurs in real time.
(c) "Telemedicine" means the use of audio, video, or other electronic media and technologies by a health care professional in one location to a patient at a different location for the purpose of diagnosis, consultation, or treatment, including the use of synchronous or asynchronous interactions.
(d) "Telehealth" means the use of audio, video, or other electronic media and technologies by a health care professional in one location to a patient at a different location for the purpose of diagnosis, consultation, or treatment, including the use of synchronous or asynchronous interactions.
II. Individuals licensed, certified, or registered pursuant to RSA 137-F; RSA 151-A; RSA 315; RSA 316-A; RSA 317-A; RSA 326-B; RSA 326-D; RSA 326-H; RSA 327; RSA 328-D; RSA 328-E; RSA 328-F; RSA 328-G; RSA 329-B; RSA 330-A; RSA 330-C; RSA 327-A; RSA 329; RSA 326-B; RSA 318; RSA 328-I; RSA 328-J may provide services through telemedicine or telehealth, provided the services rendered are authorized by scope of practice. Nothing in this provision shall be construed to expand the scope of practice for individuals regulated under this chapter.
III. Unless otherwise prescribed by statute, an out-of-state healthcare professional providing services by means of telemedicine or telehealth shall be required to be licensed, certified, or registered by the appropriate New Hampshire licensing body, or pursuant to a licensing compact or endorsement, if the patient is physically located in New Hampshire at the time of service. This paragraph shall not apply to out-of-state physicians who provide consultation services pursuant to RSA 329:21, II.
IV. An individual providing services by means of telemedicine or telehealth directly to a patient shall:
(a) Use the same standard of care as used in an in-person encounter;
(b) Maintain a medical record;
(c) Subject to the patient's consent, forward the medical record to the patient's primary care or treating provider, if appropriate; and
(d) Provide meaningful language access if the individual is practicing in a facility that is required to ensure meaningful language access to limited-English proficient speakers pursuant to 45 C.F.R. section 92.101 or RSA 354-A, or to deaf or hard of hearing individuals pursuant to 45 C.F.R. section 92.102, RSA 521-A, or RSA 354-A.
V. Under this section, Medicaid coverage for telehealth services shall comply with the provisions of 42 C.F.R. section 410.78 and RSA 167:4-d.
VI. Physicians and physician assistants, governed by RSA 329 and RSA 328-D; advanced practice nurses, governed by RSA 326-B and registered nurses under RSA 326-B employed by home health care providers under RSA 151:2-b; midwives, governed by RSA 326-D; psychologists, governed by RSA 329-B; allied health professionals, governed by RSA 328-F; dentists, governed by RSA 317-A; mental health practitioners governed by RSA 330-A; community mental health providers employed by community mental health programs pursuant to RSA 135-C:7; alcohol and other drug use professionals, governed by RSA 330-C; and dietitians, governed by RSA 326-H shall be authorized to provide consultation services or follow-up care via telehealth to a patient who previously received services from the provider in the state where the provider is licensed.
VII. Nothing in this section shall limit a provider's ability to diagnose, assess, or treat an individual patient.
310:8 License Renewals; Lapse.
I. The executive director of the office of professional licensure and certification shall issue licenses, as set forth in RSA 310:4, to applicants meeting the eligibility requirements as defined in statute, and rules adopted by each individual board.
II. Licenses shall be valid from the date of issuance and for the term stated on the license, except that timely and complete application for license renewal by eligible applicants shall continue the validity of the licenses being renewed until the office has acted on the renewal application.
III. Applicants shall submit completed applications for renewal, the renewal fee, and any supporting documents required for that renewal on or before the expiration of the license. Licenses shall lapse when completed renewal applications, renewal fee, and supporting documents have not been filed by the expiration of the license and the holders of a lapsed license are not authorized to practice until the licenses have been reinstated. Holders of lapsed licenses shall not be able to renew, but shall be eligible to reinstate licenses by submitting an application and meeting the eligibility requirements as defined in statute, and rules adopted by each individual board.
IV. The office of professional licensure and certification shall provide licensees, at least 2 months before the date of expiration of their license, with notice of the need to complete their renewal applications. Failure to receive notice shall not relieve any licensee of the obligation to renew their license, comply with the rules of the office, the rules of the board, or this section. Timeliness of submission of renewal applications shall be evidenced by the date stamp of receipt, or for applications submitted electronically the electronic time stamp of submission.
V. Upon the request of a licensee who is a member of any reserve component of the armed forces of the United States or the national guard and is called to active duty, the office of professional licensure and certification shall place the person's license on inactive status. The license may be reactivated within one year of the licensee's release from active status by payment of the renewal fee and with proof of completion of the most current continuing education requirement unless still within the renewal period.
310:9 Complaints and Investigations.
I. Allegations of professional misconduct shall be brought in accordance with RSA 332-G and rules adopted by the executive director, subject to the following:
(a) The office or the boards within the office may disclose information acquired in an investigation to law enforcement, if it involves suspected criminal activity, to health licensing agencies in this state or any other jurisdiction, or in response to specific statutory requirements or court orders.
(b) Allegations of professional misconduct shall be brought within 5 years from the time the office reasonably could 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. 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 5-year limitation period prescribed by this paragraph.
II. Upon receipt of an allegation of professional misconduct, the office shall determine whether the allegation states a claim of professional misconduct on its face.
(a) If the office determines that the allegation does not state a claim, it shall make a recommendation to the board for dismissal. The board shall review the office’s recommendation and dismiss the allegation if it agrees with the office's recommendation. Each board may dismiss a complaint if the board concludes that the allegations do not state a claim of professional misconduct.
(b) If the office determines that the allegation does state a claim on its face, the office shall make a recommendation to the board for investigation.
III. Notwithstanding any other law to the contrary, upon direction by the board, the office shall investigate allegations of misconduct by licensees (a) upon its own initiative or (b) upon confirmation that a written complaint alleging misconduct should be investigated, except as provided for the board of accountancy pursuant to RSA 309-B.
IV. Allegations of misconduct received by the office, information and records acquired by the office during an investigation, and reports and records made by the office because of its investigation, shall be held confidential and shall be exempt from the disclosure requirements of RSA 91-A, unless such information subsequently becomes part of a public disciplinary hearing. However, the office may disclose information acquired in an investigation to law enforcement or licensing agencies in this state or any other jurisdiction, or in accordance with specific statutory requirements or court orders.
V. To carry out investigations, the executive director is authorized to:
(a) Retain qualified experts, approved by the appropriate board, that have sufficient knowledge on appropriate statutes or professions and their practices.
(b) Conduct inspections of places of business of a profession regulated under the office, which may include only the portion of a residence where professional equipment is located.
(c) Issue subpoenas for persons, relevant documents and relevant materials 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 materials 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 office 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 Professional Licensure and Certification."
VI. When an allegation of misconduct is determined to be unfounded after an investigation, the board shall dismiss the allegation and explain in writing to the complainant and the licensee its reason for dismissing the complaint. The office shall retain all information concerning investigations in accordance with the retention policy established by the office.
VII. Subject to the limitations of RSA 329-B:26 and RSA 330-A:32, the office shall obtain, handle, archive, and destroy mental health and psychological records as follows:
(a) If a client or patient owning a privilege is the person who has made a complaint against a licensee, the office may access the records of such client or patient. The complaint form provided by the office and initial follow-up correspondence shall clearly indicate that the submission of the complaint by the client or patient who is the owner of the privilege shall override the privacy of that record for the purposes of the office’s confidential investigation and proceedings. The client or patient’s identity shall not be disclosed to the public in any manner or in any proceeding of the board without his or her consent. If the client or patient named in the complaint is a child, the legitimate assertion of the privilege by one natural or adoptive parent or legal guardian is sufficient for this paragraph to apply. The office may act on that parent or guardian’s initiation of complaint regardless of the objection of the other parent or guardian.
(b) If the person who has made the allegations against the licensee is not the owner of the privilege for the records of the client or patient named in the complaint whose treatment is under investigation by the office, the records for investigation shall be treated as follows:
(1) When the office reviews the initial complaint and upon all further reviews of the case by the office or the board, the identity of the named client or patient shall be redacted from the documents reviewed.
(2) The names of clients or patients may be made available only to office staff and consultants assigned to investigate or adjudicate the matter, and in instances where the board has decided to proceed with discipline, to board members for purposes of determining recusal issues as described in subparagraph (f).
(3) The record of a client or patient under this subparagraph that has been specifically named in a complaint may be obtained by office staff as specified:
(A) Office staff and consultants may request permission from the client or patient to obtain the record for the investigation, informing the client or patient about the bounds of confidentiality of such records and the nature of the investigative process. If the client or patient grants permission, office staff may obtain the copies of the record.
(B) If the client or patient denies permission for access to the record, the office may only obtain the record pursuant to a court order.
(4) Personally identifiable information pertaining to a client or patient under this subparagraph shall remain known only to staff and consultants assigned to the matter, which may include an employee of the office’s investigations bureau, an employee of the office’s prosecutions bureau, professional conduct investigator, the board administrator, and only those additional investigative assistants as the office’s investigation team deems necessary to accomplish the investigation of the complaint.
(5) All communication beyond the office staff and consultants, or the board, pertaining to these clients or patients shall be conducted without the use of personally identifiable information.
(6) The identity of a client or patient shall not be disclosed to the public in any manner or in any proceeding of a board without his or her consent.
(c) Records of clients or patients who are not named in the initial complaint shall be treated as follows:
(1) If office staff and consultants assigned to the matter wish to obtain records of, or contact, clients or patients not named in the initial complaint, they shall make a request to the board with reasons for the request, specify the scope of cases and types of records requested, and state the name of the individual for whom authorization is requested to contact the client or patient.
(2) Upon board approval of a request pertaining to treatment of clients or patients defined in this subparagraph, the names of the clients or patients that fulfill the criteria of selection may be made available to office staff and consultants for purposes of determining whether recusal issues pertain to their selection for the investigation as described in subparagraph (f).
(3) If the board approves an investigation into client or patient cases who are not named in the original complaint, the board shall specify whether the clients or patients may be contacted directly.
(4) For records requested under this subparagraph, the keeper of the record shall be instructed to provide records that are redacted of personally identifiable information as defined in subparagraph (g). Each record shall be marked with an identifying code and the keeper of the record shall provide to the office’s staff and consultants the contact information for corresponding clients or patients.
(5) The office shall store in a secure manner the list of these client or patient codes with corresponding contact information.
(6) If office staff and consultants have just cause to verify redacted copies against originals records of specified cases they shall request permission of the board, giving reason for the request. Upon board approval, office staff and consultants may have access to the identified unredacted records, which may be viewed at a time and location of their choosing. Office staff and consultants may request a copy of the identified original records be sent to the office. Copies and corrections to the redacted records may be made by the office staff and consultants, after which any identified unredacted copies shall be destroyed and original records returned to the keeper of the records.
(7) Office staff and consultants contacting the clients or patients pursuant to subparagraph (c)(1) shall request permission from the clients or patients to conduct an interview, include an explanation that the individual(s) may grant or refuse permission for such interview, and explain there are no adverse personal consequences of any kind for refusal to grant permission or for withdrawing permission at any time during the interview. Office staff and consultants may inform the individual(s) that refusal to participate may prevent the investigation from proceeding or reaching a satisfactory conclusion.
(8) The identity of each client or patient shall be redacted from any documents reviewed by the board.
(9) The identity of a client or patient defined in this subparagraph shall not be disclosed to the public in any manner or in any proceeding of the board without the client or patient’s consent.
(d) Mental health or psychological records obtained through subparagraphs (a)-(c) shall be archived or destroyed at the conclusion of the matter in accordance with a retention schedule established by the office. The identification and contact information collected during the investigation for clients or patients other than a client or patient complainant shall be destroyed.
(e) For the purposes of this paragraph:
(1) “Record” means health or psychological information collected from or about an individual that:
(A) Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and
(B) Relates to the individual, the past, present, or future physical or mental health or psychological condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual.
(2) “Personally identifiable information” means information which identifies an individual or which a reasonable person would believe could be used to identify an individual, including common and uncommon identifiers, including, but not limited to, name, address, birth date, social security number, court docket number, insurance policy number, and any other identifiers of an individual and of the individual’s known relatives, household members, and employers that a reasonable person would believe could identify the individual to whom the record pertains.
(f) In the process of determining recusal, the security of the client or patient’s identity shall be preserved as follows:
(1) Before engaging in any matter as defined in subparagraph (a), board members, investigators, and others as specified in this paragraph with access to case files shall first review the name of the client/patient before proceeding. If a conflict of interest is identified, that person shall recuse himself or herself from the matter.
(2) Before engaging in any cases defined in subparagraph (b), office staff and consultants at the onset of the investigation, board members at the time of reviewing the findings of the investigation, and any others authorized to have access to the case prior to commencing review of such cases shall first determine if there is a need for recusal.
(3) If a client or patient as defined in subparagraph (b) or (c) testifies or intends to attend the hearing of the case involving his or her treatment and the board may see the client or patient inadvertently or directly, the client or patient’s name shall be revealed to the board members so they may have the opportunity to recuse themselves prior to the proceeding. The client or patient shall be informed beforehand of such disclosure.
(4) For recusals pertaining to clients or patients under subparagraph (c) of this section, office staff and consultants shall review the names of the clients or patients who qualify for the scope of investigation as approved by the board, to determine if there is cause for recusal.
(5) When board members review any report of investigation that includes case information pertaining to clients or patients as defined in subparagraph (c), they shall review their names prior to reading such reports in the following manner:
(A) If there are 10 or fewer cases with individual clinical information presented, then the methods of testing for recusal shall follow the recusal procedures in subparagraph (f)(2).
(B) When the report includes clinical information pertaining to more than 10 cases, the recusal methods of subparagraph (f)(4) shall apply.
(C) When such client or patients’ information is presented only in aggregate form, no recusal is required.
(g) A keeper of the record shall comply with board and the office’s investigative team’s requests for client or patient records and all redaction requirements specified under this section. The board may seek a court order to enforce valid requests for such records under this section.
VIII. Any board member who has had a personal relationship or has worked in a professional capacity with a complainant or with a licensee against whom a complaint has been filed or whose personal or professional views regarding the licensee or the complainant could prevent the board member from being impartial in considering the complaint shall recuse himself or herself from any investigation or disciplinary action against such licensee.
310:10 Disciplinary Proceedings; Non-Disciplinary Remedial Proceedings.
I. Disciplinary proceedings shall be open to the public in accordance with RSA 91-A. All non-disciplinary remedial proceedings shall be exempt from the provisions of RSA 91-A, except that the board shall disclose any final remedial action that affects the status of a license, including any non-disciplinary restrictions imposed. The docket file for each such proceeding shall be retained in accordance with the retention policy established by the office of professional licensure and certification.
II. Boards shall conduct disciplinary and non-disciplinary remedial proceedings in accordance with procedural rules adopted by the executive director.
III. The office shall employ sufficient administrative prosecutors qualified by reason of education, competence, and relevant experience to serve as hearing counsel in all disciplinary proceedings before the boards.
IV. The office shall employ sufficient personnel qualified by reason of education, competence, and relevant experience to serve as presiding officer in all disciplinary or non-disciplinary remedial proceedings before the boards. The presiding officer shall have the authority to preside at such hearing and to issue oaths or affirmations to witnesses, rule on questions of law and other procedural matters, and issue final orders based on factual findings of the board.
V. The presiding officer in disciplinary and non-disciplinary remedial proceedings may issue subpoenas for persons, relevant documents and relevant materials in accordance with the following conditions:
(a) Subpoenas for persons shall not require compliance in less than 48 hours after receipt of service.
(b) Subpoenas for documents and materials shall not require compliance in fewer than 15 days after receipt of service.
(c) Service shall be made on licensees and certified individuals by certified mail to the address on file with the office or by hand and shall not entitle them to witness or mileage fees.
(d) 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 Professional Licensure and Certification."
VI. In carrying out disciplinary or non-disciplinary remedial proceedings, the presiding officer, as defined in RSA 541-A, shall have the authority to hold pre-hearing conferences, which shall be exempt from the provisions of RSA 91-A; to administer oaths and affirmations; and, to render legal opinions and make conclusions of law.
VII. Boards shall be the triers of fact in all disciplinary and non-disciplinary remedial proceedings, and shall determine sanctions, if any.
VIII. At any time before or during disciplinary or non-disciplinary remedial proceedings, complaints may be dismissed or disposed of, in whole or in part:
(a) By written settlement agreement approved by the board, provided that any complainant shall have the opportunity, before the settlement agreement has been approved by a board, to comment on the terms of the proposed settlement; or
(b) Through an order of dismissal for default, for want of jurisdiction, or failure to state a proper basis for disciplinary action.
IX. Disciplinary action taken by the board at any time, and any dispositive action taken after the issuance of a notice of public hearing, shall be reduced to writing and made available to the public. Such decisions shall not be public until they are served upon the parties, in accordance with rules adopted by the executive director.
X. Except as otherwise provided by RSA 541-A:30, the board shall furnish the respondent at least 15 days' written notice of the date, time and place of a hearing. Such notice shall include an itemization of the issues to be heard, and, in the case of a disciplinary hearing, a statement as to whether the action has been initiated by a written complaint or upon the board's own motion, or both. If a written complaint is involved, the notice shall provide the complainant with a reasonable opportunity to intervene as a party.
XI. Neither the office nor the boards shall have an obligation or authority to appoint attorneys or pay the fees of attorneys representing licensees or witnesses during investigations or disciplinary or non-disciplinary remedial proceedings.
XII. No civil action shall be maintained against the office or the board, or any member of the board, office, or its agents or employees, against any organization or its members, or against any other person for or by reason of any statement, report, communication, or testimony to the board or determination by the board or office in relation to proceedings under this chapter.
XIII. For matters involving individuals identified in mental health records, testimony by client or patients shall be handled with utmost regard for the privacy and protection of their identity from public disclosure.
(a) A noncomplainant client or patient shall not be compelled to testify at a hearing.
(b) If a noncomplainant client or patient testifies at a hearing, the identity of the individual shall be screened from the public view and knowledge, although the respondent and attorneys shall be within the view of the client patient. The board may view the client or patient. The public’s access to view or information that would identify the client or patient shall be restricted. The hearing may be closed to the public for the duration of the client or patient’s testimony, at the board’s discretion.
(c) If a complainant client or patient requests the privacy safeguards in subparagraph (b), the presiding officer may make such accommodations.
310:11 Licensing Proceedings.
I. Boards shall conduct licensing proceedings in accordance with procedural rules adopted by the executive director.
II. If a board denies a license following a licensing proceeding, its final decision shall be issued in accordance with RSA 541-A:35.
III. In carrying out licensing proceedings, the 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; and
(c) Administer, and authorize an appointed presiding officer to administer, oaths and affirmations.
IV. Neither the office nor the boards shall have an obligation or authority to appoint or pay the fees of attorneys representing licensees, certified individuals, or witnesses during investigations or adjudicatory proceedings.
V. Licensing proceedings shall be open to the public in accordance with RSA 91-A.
310:12 Sanctions.
I. Upon making an affirmative finding that a licensee has committed professional misconduct, boards may take disciplinary action in any one or more of the following ways:
(a) By reprimand.
(b) By suspension of a license for a period of time as determined reasonable by the board.
(c) By revocation of license.
(d) By placing the licensee on probationary status. The board may require the person to submit to any of the following:
(1) Regular reporting to the board concerning the matters which are the basis of the probation.
(2) Continuing professional education until a satisfactory degree of skill has been achieved in those areas which are the basis of probation.
(3) Submitting to the care, counseling, or treatment of a physician, counseling service, health care facility, professional assistance program, or any comparable person or facility approved by the board.
(4) Practicing under the direct supervision of another licensee for a period of time specified by the board.
(e) 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.
II. The board may issue a non-disciplinary confidential letter of concern to a licensee advising that while there is insufficient evidence to support disciplinary action, the board believes the licensee or certificate holder 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 to establish a relevant pattern or course of conduct in subsequent adjudicatory proceedings by the board.
III. In the case of sanctions for discipline in another jurisdiction, the decision of the other jurisdiction's disciplinary authority may not be collaterally attacked and the board may impose any of the sanctions set forth in this chapter, but shall provide notice and an opportunity to be heard prior to imposing any sanctions.
IV. In cases involving imminent danger to public health, safety, or welfare, a board may order immediate suspension of a license or certification pending an adjudicative proceeding before the board to determine if the suspension should remain in place pending final adjudication of the matter, and which shall commence not later than 10 working days after the date of the order suspending the license unless the licensee or certified individual agrees in writing to a longer period. In such cases of immediate danger, the board shall comply with RSA 541-A:30.
V. For any order issued in resolution of a disciplinary proceeding by the board, where the board has found misconduct sufficient to support disciplinary action, the board may require the licensee or certificate holder who is the subject of such finding to pay the office the reasonable cost of investigation and prosecution of the proceeding, but which shall not exceed $10,000. This sum may be imposed in addition to any otherwise authorized administrative fines levied by the board as part of the penalty. The investigative and prosecution costs shall be assessed by the office and any sums recovered shall be credited to the office's fund and disbursed by the office for any future investigations of complaints and activities that violate this chapter or rules adopted under this chapter.
310:13 Unlicensed Practice. Whoever, not being licensed or otherwise authorized to practice according to the laws of this state, advertises oneself as engaging in a profession licensed or certified by the office of professional licensure and certification, engages in activity requiring professional licensure, or in any way holds oneself out as qualified to do so, or calls oneself a licensed professional, or whoever does such acts after receiving notice that such person's license to practice has been suspended or revoked, is engaged in unlawful practice. After providing notice and opportunity to be heard, and upon making an affirmative finding of unlawful practice, the board may impose a fine not to exceed the amount of any gain or economic benefit that the person derived from the violation, or up to $10,000 for each offense, whichever amount is greater. Each violation of unlicensed or unlawful practice shall be deemed a separate offense. The board, the state’s attorney general, or a 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 any board.
310:14 Rehearing; Appeals.
I. Any person who has been denied a license or certification by the office or a board shall have the right to a rehearing before the appropriate board. Requests for a rehearing shall be made in writing to the appropriate board within 30 days of receipt of the original final decision.
II. Any person who has been disciplined by a board shall have the right to petition in writing for a rehearing within 30 days of receipt of the original final decision.
III. Appeals from a decision on rehearing shall be by appeal to the supreme court pursuant to RSA 541, except as specified in RSA 674:34. No sanction shall be stayed by the board during an appeal.
310:15 Oversight Committee; Establishment; Purpose.
I. There shall be an oversight committee for the office of professional licensure and certification (OPLC) consisting of the following members:
(a) Three members of the house executive departments and administration committee, one of whom shall be a minority member of that committee, appointed by the speaker of the house of representatives.
(b) Two members of the senate executive departments and administration committee, one of whom shall be a minority member of that committee, appointed by the president of the senate.
II. Membership on the oversight committee shall be for the duration of the biennium and shall be coterminous with membership in the general court. The first meeting of the committee shall be called by the first-named house member. The committee shall elect a chair from among the members at the first meeting of each biennium. Meetings shall be called as needed, but at least quarterly. The members of the committee shall receive mileage at the legislative rate when performing the duties of the committee. Three members of the committee shall constitute a quorum.
III. The committee shall provide legislative oversight and informational meetings on the policies and rules of the office as brought to its attention by office personnel, legislators, members of the boards, councils, committees, and commissions overseen by OPLC, and members of the professions under the jurisdiction of OPLC. The committee's work shall include analyzing the division of duties between administration and the boards in order to promote more productive and efficient interactions.
IV. The oversight committee shall recommend legislation deemed necessary to correct issues it identifies.
310:16 Military Service Members and Spousal Temporary Licensure. The office of professional licensure and certification shall issue temporary licenses to a member of the armed forces or their spouse, if the applicant holds a current, valid unencumbered occupational or professional license in good standing issued by a state or territory of the United States, in accordance with rules adopted by executive director of the office of professional licensure and certification under RSA 541-A, provided that the applicant meets the requirements of this section, within 30 days of having received an application or, if the applicant is subject to a criminal records check, within 14 days of having received the results of a criminal records check. The rules shall contain the following provisions:
I. The applicant shall obtain a temporary license for a period of not less than 180 days while completing any requirements for licensure in New Hampshire so long as no cause for denial of a license exists under this title, or under any other law.
II. The license applicant must submit a notarized affidavit affirming, under penalty of law, that the applicant is the person described and identified in the application, that all statements made on the application are true and correct and complete, that the applicant has read and understands the requirements for licensure and certifies that they meet those requirements, and that the applicant is in good standing in all jurisdictions in which the applicant holds or has held a license.
III. The applicant may request a one-time 180-day extension of the temporary license if necessary to complete the New Hampshire licensing requirements. The applicant must make this request within 15 days prior to the temporary license's expiration date.
IV. All individuals licensed under this section shall be subject to the jurisdiction of the state licensing body for that profession.
9 Dedicated Fund; Office of Professional Licensure and Certification. Amend 6:12, I(b)(340) to read as follows:
(340) Moneys deposited in the office of professional licensure and certification fund established in RSA [310-A:1-e] 310:5.
10 Transition; Administrative Rules; Recodification of Office of Professional Licensure and Certification. The rules adopted for any occupation or profession under the office of professional licensure and certification under former RSA 310-A:1-a in effect on the effective date of this act shall, to the extent practicable, continue and be effective and apply to such respective occupation or profession until they expire or are amended or repealed.
11 Reference Changed; Mechanical Licensing; OPLC. Amend RSA 153:16-b, III to read as follows:
III. The mechanical licensing board with the approval of the executive director of the office of professional licensing and certification shall adopt rules, which shall not be subject to RSA 541-A, relative to the establishment of fees for voluntary certification under this section. After the first year of this program, such fees shall be sufficient to produce estimated revenues equal to 125 percent of the direct operating expenses of the previous fiscal year. Fees collected shall be deposited in the office of professional licensure and certification fund established in RSA [310-A:1-e] 310:5.
12 Reference Changed; Mechanical Licensing; OPLC. Amend RSA 153:28, II to read as follows:
II. Notwithstanding RSA 21-G:9, the board, with an affirmative vote of at least 4 of the appointed board members, in consultation with the office of professional licensure and certification and with the approval of the executive director of the office of professional licensure and certification, shall establish application fees for licensure, for renewal, for late renewal, and for reinstatement of licenses under this subdivision pursuant to RSA 541-A. Such licensing fees including any endorsements shall not exceed $500 per individual. The board shall also adopt fees for replacement licenses, for certified copies and reports, for inspections done pursuant to this subdivision, for letters of verification requested by individuals or jurisdictions relating to licensure and certification, and for transcribing and transferring records and other services. The fee for examination by third parties shall be separate from the fees established by the board. Fees established by the board shall be sufficient to produce estimated revenues equal to 125 percent of the direct operating expenses of the board budgeted for the biennium in which they will apply. Fees collected shall be deposited in the office of professional licensure and certification fund established in RSA [310-A:1-e] 310:5.
13 Reference Changed; Accountancy. Amend RSA 309-B:4, III to read as follows:
III. The office of professional licensure and certification shall establish fees for examination of applicants, for licenses, for certificates of authorization, for reissuance of licenses, for renewal and reinstatement of licenses and certificates to practice under this chapter, for late renewals, for verification of licensure or examination, and for transcribing and transferring records and other services. All moneys collected by the office of professional licensure and certification from fees authorized under this chapter shall be received and accounted for by the office of professional licensure and certification, shall be deposited in the office of professional licensure and certification fund established in RSA [310-A:1-e] 310:5. Administration expenses shall be limited to the funds collected and may include, but shall not be limited to, the costs of conducting investigations and of taking testimony and procuring the attendance of witnesses before the board or its committees; all legal proceedings taken under this chapter for the enforcement of this chapter; and educational programs for the benefit of the public or licensees and their employees.
14 Reference Changed; Architects. Amend RSA 310-A:32, II to read as follows:
II. In adopting any rule under this section, the board shall consult with the office of professional licensure and certification established under RSA [310-A:1 through RSA 310-A:1-e] 310.
15 Reference Changed; Body Art. Amend RSA 314-A:2, II to read as follows:
II. There shall be a fee for an initial license and a renewal license. The procedure and timeframe for license renewals shall be as described in RSA [310-A:1-h] 310.
16 Reference Changed; Chiropractic. Amend RSA 316-A:14-a to read as follows:
316-A:14-a Licenses and Certificates. Each applicant who qualifies under this chapter and who attains a minimum grade of 70 percent upon the examination given under RSA 316-A:13, I shall receive a license from the board as a chiropractor permitted to practice in New Hampshire. Each applicant who qualifies under this chapter shall pay a fee for an initial license and a license renewal. The initial license and license renewals shall be valid for the terms established under RSA [310-A:1-h] 310.
17 Reference Changed; Dentists Professional Health. Amend RSA 317-A:16-a, VII to read as follows:
VII. Rules governing the professional health program shall be implemented through the office of professional licensure and certification pursuant to RSA [310-A:1-d, II(h)(4)] 310.
18 Reference Changed; Pharmacists. Amend RSA 318:1, XV-a to read as follows:
XV-a. "Practitioner-patient relationship" means a medical connection between a licensed practitioner and a patient that includes an in-person exam or an exam using telemedicine, as defined in RSA [310-A:1-g, I-b] 310, provided the health care practitioner: (i) verifies the identity of the patient receiving health care services through telemedicine; (ii) discloses to the patient the health care practitioner's name, contact information, and the type of health occupation license held by the health care practitioner; (iii) obtains oral or written consent from the patient or from the patient's parent or guardian, if state law requires the consent of a parent or guardian for use of telemedicine services; and (iv) meets the standard of care. A health care practitioner shall complete or review a history, a diagnosis, a treatment plan appropriate for the practitioner's scope of practice, and documentation of all prescription drugs including name and dosage. A practitioner may prescribe for a patient whom the practitioner does not have a practitioner-patient relationship under the following circumstances: for a patient of another practitioner for whom the prescriber is taking call; for a patient examined by another New Hampshire licensed practitioner; or for medication on a short-term basis for a new patient prior to the patient's first appointment. The definition of a practitioner-patient relationship shall not apply to a practitioner licensed in another state who is consulting to a New Hampshire licensed practitioner with whom the patient has a relationship.
19 Reference Changed; Nurse Practice Act. Amend RSA 326-B:36-a, VI-a, (c) to read as follows:
(c) Rules governing this program shall be implemented through the office of professional licensure and certification pursuant to RSA [310-A:1-d, II(h)(4)] 310.
20 Reference Changed; Acupuncture. Amend RSA 328-G:9, IX to read as follows:
IX. The procedure and timeframe for license renewals shall be as described in RSA [310-A:1-h] 310.
21 Reference Changed; Reflexologists. Amend RSA 328-H:2, IV-a to rad as follows:
IV-a. "Executive director" means the executive director of the office of professional licensure and certification established under RSA [310-A:1 through RSA 310-A:1-e] 310.
22 Reference Changed; Physicians. Amend RSA 329:1-c to read as follows:
329:1-c Physician-Patient Relationship. "Physician-patient relationship" means a medical connection between a licensed physician and a patient that includes an in-person exam or an exam using telemedicine, as defined in RSA [310-A:1-g, I-b] 310, provided the physician: (i) verifies the identity of the patient receiving health care services through telemedicine; (ii) discloses to the patient the physician's name, contact information, and the type of health occupation license held by the physician; (iii) obtains oral or written consent from the patient or from the patient's parent or guardian, if state law requires the consent of a parent or guardian for use of telemedicine services; and (iv) meets the standard of care. A physician shall complete or review a history, a diagnosis, a treatment plan appropriate for the licensee's medical specialty, and documentation of all prescription drugs including name and dosage. A licensee may prescribe for a patient whom the licensee does not have a physician-patient relationship under the following circumstances: writing admission orders for a newly hospitalized patient; for a patient of another licensee for whom the prescriber is taking call; for a patient examined by a physician assistant, nurse practitioner, or other licensed practitioner; or for medication on a short-term basis for a new patient prior to the patient's first appointment or when providing limited treatment to a family member in accordance with the American Medical Association Code of Medical Ethics. Prescribing drugs to individuals without a physician-patient relationship shall be unprofessional conduct subject to discipline under RSA 329:17, VI. The definition of a physician-patient relationship shall not apply to a physician licensed in another state who is consulting to a New Hampshire licensed physician with whom the patient has a relationship.
23 Reference Changed; Physicians. Amend RSA 329:1-d, I to read as follows:
I. "Telemedicine" means the use of audio, video, or other electronic media and technologies by a physician in one location to a patient in a different location for the purpose of diagnosis, consultation, or treatment, including the use of synchronous or asynchronous interactions as defined in RSA [310-A:1-g] 310.
24 Reference Changed; Physicians Health. Amend RSA 329:13-b, VII to read as follows:
VII. Rules governing the program shall be implemented through the office of professional licensure and certification pursuant to RSA [310-A:1-d, II(h)(4)] 310.
25 Reference Changed; Administrative Procedures. Amend 541-A:29-a, I to read as follows:
I. If an agency fails to take any required action on an application, petition, or request within the time limits prescribed by RSA 541-A:29 or any other provisions of law, the application, petition, or request shall be deemed approved and any permit, approval or other item requested shall be deemed granted to or received by the applicant, petitioner, or requestor, except as provided in RSA [310-A:1-d, V] 310.
26 Reference Changed; Planning Boards. Amend RSA 676:4-b, V to read as follows:
V. Any person who becomes aware of a failure by a third party inspector to report properly and promptly a construction defect or deviation from the terms of the approval or approved project plans, may file a written complaint to the [joint board established under RSA 310-A:1] office of professional licensure and certification under RSA 310 for possible [peer review or] disciplinary action.
27 Repeals; OPLC Administrative Attachment; Obsolete References. The following are repealed:
I. RSA 5:13-a, relative to the administrative attachment of the real estate commission.
II. RSA 205-A:29-a, relative to the administrative attachment of the board of manufactured housing.
III. RSA 205-D:3-a, relative to the administrative attachment of the manufactured housing installation board.
IV. RSA 309-B:4, VIII, relative to the administrative attachment of the board of accountancy.
V. RSA 310-B:4, X, relative to the administrative attachment of the real estate appraiser's board.
VI. RSA 319-C:4, III, relative to the administrative attachment of the electricians board.
VII. RSA 328-C:13, relative to the administrative attachment of the board of family mediators.
VIII. RSA 331-A:5, X, relative to the administrative attachment of the real estate commission.
IX. RSA 332-B:3, IV, relative to the administrative attachment of the board of veterinary medicine.
X. RSA 490-C:7, relative to the administrative attachment of the GAL board.
28 Repeal; OPLC Investigations. RSA 310-A:1-j, relative to the investigations by the office of professional licensure and certification, is repealed.
2023-1499s
AMENDED ANALYSIS
This bill:
I. Establishes the licensure and regulation of music therapists under the allied health professionals.
II. Consolidates administrative authority for the office of professional licensure and certification (OPLC) in a new chapter of law.