Print Friendly HOUSE BILL NO. 453 – Med Bd,investigatns/subpoenas
HOUSE BILL NO. 453
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H0453........................................................by MR. SPEAKER
Requested by: Idaho State Board of Medicine
MEDICINE BOARD - Amends existing law to change the compensation of members
of the State Board of Medicine and the Board of Professional Discipline; to
provide that the Board of Medicine, the Board of Professional Discipline or
its hearing officer shall have certain powers during investigations; and to
provide for subpoenas in contested case proceedings.
01/12 House intro - 1st rdg - to printing
01/12 Rpt prt - to Health/Wel
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fourth Legislature Second Regular Session - 1998
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 453
BY MR. SPEAKER
Requested by: Idaho State Board of Medicine
1 AN ACT
2 RELATING TO PHYSICIANS AND SURGEONS; AMENDING SECTION 54-1805, IDAHO CODE, TO
3 CHANGE THE COMPENSATION OF MEMBERS OF THE STATE BOARD OF MEDICINE; AMEND-
4 ING SECTION 54-1806, IDAHO CODE, TO PROVIDE THAT THE BOARD OF MEDICINE,
5 THE BOARD OF PROFESSIONAL DISCIPLINE OR ITS HEARING OFFICER SHALL HAVE
6 CERTAIN POWERS DURING INVESTIGATIONS, TO PROVIDE FOR SUBPOENAS IN CON-
7 TESTED CASE PROCEEDINGS AND TO MAKE TECHNICAL CORRECTIONS; AND AMENDING
8 SECTION 54-1806A, IDAHO CODE, TO CHANGE THE COMPENSATION FOR MEMBERS OF
9 THE BOARD OF PROFESSIONAL DISCIPLINE AND TO MAKE TECHNICAL CORRECTIONS.
10 Be It Enacted by the Legislature of the State of Idaho:
11 SECTION 1. That Section 54-1805, Idaho Code, be, and the same is hereby
12 amended to read as follows:
13 54-1805. THE STATE BOARD OF MEDICINE ESTABLISHED. (1) There is hereby
14 established in the department of self-governing agencies a state board of med-
15 icine to be composed of ten (10) members. The membership of the state board of
16 medicine as it exists on the effective date of this act is hereby confirmed as
17 members of the board for the terms to which they were originally appointed.
18 (2) (a) The board shall consist of ten (10) members. The director of the
19 department of law enforcement shall be a member of the board. Seven (7)
20 members shall be physicians who are residents of this state and engaged in
21 the active practice of medicine in this state, and two (2) members shall
22 be public members.
23 (b) All physician appointments to the board shall be for six (6) year
24 terms. The physician members shall consist of six (6) members who are
25 licensed to practice medicine and surgery in this state and one (1) member
26 who is licensed to practice osteopathic medicine or osteopathic medicine
27 and surgery in this state. Whenever a term of a member of the board who is
28 licensed to practice medicine and surgery expires or becomes vacant, the
29 Idaho medical association shall nominate three (3) persons licensed to
30 practice medicine and surgery for each such vacancy, and forward such nom-
31 inations to the governor who shall appoint from among such nominees, one
32 (1) person to be a member of the board to fill such vacancy. Whenever a
33 term of the member of the board who is licensed to practice osteopathic
34 medicine or osteopathic medicine and surgery expires or becomes vacant,
35 the Idaho osteopathic association shall nominate three (3) persons
36 licensed to practice osteopathic medicine or osteopathic medicine and sur-
37 gery for such vacancy, and shall forward the nominations to the governor
38 who shall appoint from among such nominees one (1) person to be a member
39 of the board to fill such vacancy.
40 (c) All public members shall be appointed by the governor for three (3)
41 year terms. Public members must reside in the state and be persons of
42 integrity and good reputation who have lived in this state for at least
43 five (5) years immediately preceding their appointment, who have never
1 been authorized to practice a healing art, and who have never had a sub-
2 stantial personal, business, professional, or pecuniary connection with a
3 healing art or with a medical education or health care facility, except as
4 patients or potential patients.
5 (3) Appointments to fill vacancies occurring from some other reason than
6 expiration of a term for which a member was appointed, shall be made in the
7 same manner as hereinabove set forth for the unexpired term. The governor may
8 remove any member of the board from the membership of the board, who is guilty
9 of malfeasance, misfeasance or nonfeasance.
10 (4) The board shall elect a chairman from its membership. The members of
11 the board except for state employees shall be compensated as provided by sec-
12 tion 59-509( h n ), Idaho Code. Five (5) members of the
13 board shall constitute a quorum, and the board may act by virtue of a majority
14 vote of members present at a meeting.
15 SECTION 2. That Section 54-1806, Idaho Code, be, and the same is hereby
16 amended to read as follows:
17 54-1806. POWERS AND DUTIES. The board shall have the authority to:
18 (1) Hire or appoint employees, including an executive director, investi-
19 gators, attorneys, consultants and independent hearing examiners.
20 (2) Establish pursuant to the administrative procedures act rules
21 and regulations for administration of this chapter, including rules
22 and regulations governing all activities of persons employed as
23 physician's assistants by persons licensed to practice medicine in this state.
24 (3) Conduct investigations and examinations and hold hearings.
25 (4) The board, the board of professional discipline or its hearing offi-
26 cer shall have the power in any investigation or disciplinary
27 proceeding pursuant to this chapter to administer oaths, take depositions of
28 witnesses within or without the state in the manner provided by law in civil
29 cases, and shall have power throughout the state of Idaho to require the
30 attendance of such witnesses and the production of such books, records, and
31 papers as it may desire during an investigation or at any hearing
32 and for that purpose the board may issue a subpoena for any witnesses or a
33 subpoena duces tecum to compel the production of any books, records of
34 or papers, directed to the sheriff of any county of the
35 state of Idaho, where such witness resides, or may be found, which shall be
36 served and returned in the same manner as a subpoena in a criminal case is
37 served and returned. The fees and mileage of the witnesses shall be the same
38 as that allowed in the district courts in criminal cases, which fees and mile-
39 age shall be paid from any funds in the state treasury in the same manner as
40 other expenses of the board are paid. In any case of disobedience to, or
41 neglect of, any subpoena or subpoena duces tecum served upon any person, or
42 the refusal of any witness to testify to any matter regarding which he may
43 lawfully be interrogated, it shall be the duty of the district court of any
44 county in this state in which such disobedience, neglect or refusal occurs, or
45 any judge thereof, on application by the board to compel compliance with the
46 subpoena by proceedings for contempt as in the case of disobedience of the
47 requirements of a subpoena issued from such court or for refusal to testify
48 therein. The licensed person accused in such contested case
49 proceedings shall have the same right of subpoena upon making applica-
50 tion to the board therefor.
51 (5) Seek injunctive relief prohibiting the unlawful practice of medicine.
52 (6) Make and enter into contracts.
53 (7) Operate, manage, superintend and control the licensure of physicians.
1 (8) Develop and submit a proposed budget setting forth the amount neces-
2 sary to perform its functions.
3 (9) Perform such other duties as set forth in the laws of this state.
4 (10) Provide such other services and perform such other functions as are
5 necessary to fulfill its responsibilities.
6 (11) Provide for reasonable fees through rules and regulations
7 for administrative costs and assess costs reasonably and necessarily
8 incurred in the enforcement of this chapter when a licensee has been found to
9 be in violation of this chapter.
10 (12) Prepare an annual report.
11 SECTION 3. That Section 54-1806A, Idaho Code, be, and the same is hereby
12 amended to read as follows:
13 54-1806A. MEDICAL DISCIPLINARY ENFORCEMENT. The board of medicine is
14 authorized to create a board of professional discipline and to delegate to it
15 its role and authority in the enforcement and supervision of professional dis-
16 ciplinary enforcement under this chapter and particularly under sections
17 54-1810 and 54-1814, Idaho Code, including without limitation the power to
18 make rules and regulations and to provide forms and procedures
19 therefor, to the full extent that the board of medicine is authorized or
20 empowered to act; such board of professional discipline, however, shall not
21 act or be authorized to act in connection with licensing of applicants, except
22 as respects proceedings for reinstatement following voluntary surrender of
23 license while under investigation or prosecution for conduct allegedly
24 improper, or following restriction, suspension or revocation of license in the
25 state of Idaho or under any other duly constituted medical licensing authority
26 of any other state or territory of the United States or of any other nation.
27 By its order therefor, the state board of medicine shall provide as follows
28 respecting a board of professional discipline created under this chapter:
29 (1) Membership. Said board shall consist of five (5) members appointed
30 by the board of medicine. Initially, it shall consist of two (2) members
31 licensed to practice medicine and surgery in the state of Idaho, whose terms
32 shall expire midnight, June 30, 1979; and two (2) members licensed to practice
33 medicine and surgery in the state of Idaho, whose terms shall expire midnight,
34 June 30, 1978, and one (1) member who is an adult Idaho citizen of good char-
35 acter and reputation who shall not be licensed to practice medicine and sur-
36 gery in the state of Idaho, whose term shall expire midnight ,
37 June 30, 1977. Subsequent terms of all members appointed shall be for three
38 (3) years so that there shall be a rotation of membership of a portion of the
39 said board, each year; provided, the board of medicine may, in its discretion,
40 reappoint members and may but need not appoint members of the board of medi-
41 cine itself to any or all of the positions of membership upon said board ini-
42 tially and/or from time to time as vacancies occur. Subsequent appointees to
43 the board shall have the qualifications required of the original appointees.
44 (2) Chairman. The board of medicine shall designate one (1) member of
45 the board of professional discipline as its chairman, and he shall serve and
46 function in that capacity for one (1) year or until his successor is duly
47 appointed, whichever is later.
48 (3) Quorum. Three (3) members shall constitute a quorum though no meet-
49 ing of said board shall be held without reasonable prior notice of at least
50 three (3) days to all members, which notice may be given by the chairman or
51 any three (3) members. Notice may be waived unanimously; otherwise, it shall
52 be in writing and state the time, place and purpose of the meeting.
53 (4) Compensation. Members shall be compensated as provided by section
1 59-509( h n ), Idaho Code, from the state board of med-
2 icine fund for expenses incurred in the course of serving on said board or
3 acting on its behalf.
4 (5) Conflicts and Disqualification. Members shall disqualify themselves
5 and, on motion of any interested party may, on proper showing, be disqualified
6 in any proceeding concerning which they have an actual conflict of interest or
7 bias which interferes with their fair and impartial service.
8 (6) Additional Powers of Board of Professional Discipline. In addition
9 to its other powers, the board of professional discipline shall be empowered
10 and authorized:
11 (a) To initiate or commence proceedings, studies or investigations on its
12 own motion and initiative or to proceed on the request or complaint of any
13 person, whether formally or informally stated and whether or not verified;
14 provided, it may impose reasonable requirements respecting the form, con-
15 tent and sufficiency of complaints invoking its jurisdiction.
16 (b) To investigate or inquire into misconduct or unprofessional behavior,
17 whether real, apparent or merely suspected; and take such action with
18 respect thereto as it deems best in the interest of the public and jus-
20 (c) To retain and appoint staff to administer, process and assist in the
21 work assigned it under this chapter or by the board of medicine, includ-
22 ing, as deemed appropriate, legal counsel to assist in presentation of
23 matters before it and/or to advise it on matters of law.
24 (d) To appoint hearing committees to take evidence, conduct hearings and
25 make recommended findings and conclusions to it in any matter or proceed-
26 ing assigned to the committee, which hearing committees shall be of such
27 number and size as the disciplinary board directs composed of licensed
28 physicians resident and licensed to practice medicine and surgery in
29 Idaho, who shall serve without pay and for such term as the board may
30 specify, not to exceed one (1) year or during the pendency of any matters
31 referred to it, whichever is longer. Proceedings before such committees,
32 and before said board, except as otherwise provided or may be inconsistent
33 with the clear intent or conflicting specific provisions of this act,
34 shall be as provided by the A a dministrative
35 P p rocedure s A a
36 ct, chapter 52, title 67, Idaho Code; provided, there shall be no
37 hearings de novo on appellate review as a matter of right.
38 (e) To make findings respecting matters coming before it or before any
39 hearing committee or authorized hearing officer acting on its behalf, and
40 to make conclusions and enter orders dispositive of such proceedings,
41 including, without limitation, disciplinary orders as provided in and by
42 the Idaho Code respecting misconduct or other grounds for discipline
43 respecting any licensed physician and surgeon licensed to practice medi-
44 cine and surgery in the state of Idaho, which authority shall, for good
45 cause shown, include the power to suspend, restrict, condition, limit or
46 revoke the license or present or future right or privilege to practice
47 medicine of any physician, surgeon or other person licensed or purporting
48 to be qualified or authorized to practice medicine and surgery in the
49 state of Idaho.
50 (f) To reprimand by informal admonition any licensed physician and sur-
51 geon respecting any matter it finds is minor misconduct. Such reprimand
52 shall be subject to disclosure according to chapter 3, title 9, Idaho
54 (g) To accept the resignation and surrender of license of any physician
55 and surgeon under investigation or prosecution who tenders the same, and
1 to impose terms and conditions in connection therewith as it may deem
2 appropriate in the best interest of the public and of justice.
3 (h) To order, for good cause, nondisciplinary suspension or transfer to
4 inactive status of any licensed physician and surgeon incapacitated by
5 illness, senility, disability, or addiction to drugs, intoxicants or other
6 chemical or like substances, and to provide terms and conditions therefor,
7 including provisions and conditions controlling reinstatement and any
8 request therefor; provided, this subparagraph shall not be construed to
9 amend or repeal specific legislation expressly dealing with disabled phy-
10 sicians whether heretofore or hereafter enacted by the legislature of the
11 state of Idaho but rather shall be construed as complementary thereto.
12 (i) To provide by order in general and/or in particular for reciprocal
13 discipline in cases involving the discipline of a licensed physician and
14 surgeon disciplined in any other jurisdiction, provided that such licensee
15 or applicant shall be entitled on due motion and notice to appear and show
16 cause why such order should not apply in his or her case.
17 (j) To provide for and conduct informal proceedings and to provide rules
18 and practices to encourage fair and expeditious disposition of business,
19 complaints and matters properly coming before it.
20 (7) Substitution of Board of Professional Discipline in Matters of Disci-
21 pline and Self-Policing. From and after the effective date of the board of
22 medicine creating and establishing the board of professional discipline, ref-
23 erences in the laws of the state of Idaho, including the M m
24 edical P p ractice s A
25 a ct, this chapter and the Idaho Code in general, to the
26 board shall, when concerned with matters of self-policing or professional dis-
27 cipline within the medical profession, be deemed and construed to be refer-
28 ences to the board of professional discipline.
29 (8) Openness. Except as specifically otherwise ordered in the interest
30 of justice or the public health, hearings and proceedings before the board of
31 professional discipline shall be open in all cases in which the board has
32 determined that there is probable cause to proceed to formal hearing; pro-
33 vided, as respects reprimands for minor misconduct, proceedings shall be sub-
34 ject to disclosure according to chapter 3, title 9, Idaho Code, unless the
35 respondent physician in writing rejects the reprimand within ten (10) days of
36 the order providing therefor, in which cases said matters shall promptly be
37 set for hearing and such proceedings and hearings thereafter shall be public
38 and open unless, as hereinabove authorized, the board for good cause otherwise
39 orders and directs. Determination that there is probable cause to proceed may
40 be made informally by the chairman and also by written expression of a major-
41 ity of the members of the board of professional discipline. The determination
42 that there is not probable cause to proceed shall be made in writing and a
43 copy forwarded to such person whose complaint may have initiated or commenced
44 the proceedings, which person shall have standing to request en banc review of
45 such determination by the entire committee which shall have jurisdiction to
46 reverse or affirm such determination as in its discretion it deems in the
47 interest of justice and the public health.
48 (9) Voluntary Restriction of Licensure. A physician may request in writ-
49 ing to the board of professional discipline a restriction of his license to
50 practice medicine and the board is authorized to grant such request and, if it
51 deems it appropriate to do so, it is granted the authority in such cases to
52 attach conditions to the licensure of the physician to practice medicine
53 within specified limitations. The board is also authorized in such cases
54 thereafter to waive the commencement of proceedings under this act or other
55 provisions of the M m edical P p
1 ractice A a ct if in the interest of justice it
2 determines that such voluntary proceedings have rendered the same unnecessary.
3 Removal of a voluntary restriction on or suspension of licensure to practice
4 medicine shall be subject to the procedures for reinstatement elsewhere in
5 this act, in the M m edical P p
6 ractice A a ct or by rule and regulation
7 of the board of professional discipline provided; also, such reinstate-
8 ments may be subject to further conditions specially imposed in the individual
9 case as a condition of the order entered therein.
10 (10) Adjudication of Discipline or Exoneration. At the conclusion of the
11 proceedings the board of professional discipline shall make a determination of
12 the merits and, if grounds therefor are found to exist, may issue its order:
13 (a) Revoking the respondent physician's license to practice medicine;
14 (b) Suspending or restricting the respondent physician's license to prac-
15 tice medicine;
16 (c) Imposing conditions or probation upon the respondent physician and
17 requiring rehabilitation planning, commitment and conditions upon such
18 respondent physician's licensure;
19 (d) Imposing an administrative fine not to exceed ten thousand dollars
20 ($10,000) for each count or offense; and/or
21 (e) Assessing costs and attorney's fees against the respondent physician
22 for any investigation and/or administrative proceeding.
23 If grounds for any of the foregoing are not found to exist, the board shall
24 enter its order so stating and dismissing the proceedings and shall provide
25 the respondent and, if there be one, the complainant or petitioner in the pro-
26 ceedings a true copy thereof.
27 (11) Temporary Suspension or Restriction Pending Final Order. The board
28 of professional discipline may temporarily suspend or restrict the license of
29 any physician or enter an appropriate order of temporary probation, ex parte,
30 on its own motion or on verified petition of any person, pending further or
31 final order, without prior hearing, simultaneously with or at any time after
32 the institution of proceedings under this chapter or the M m
33 edical P p ractice A a
34 ct, but only if it first finds, on the basis of a responsible showing
35 which satisfactorily demonstrates that the physician in his capacity as such
36 and for reasons set forth by petition, affidavit, or other verified showing,
37 or determined by it in reliance upon other reliable proof, is causing great
38 harm to the public or to any patient or group of patients, or is imminently
39 likely to cause such harm, for which reason he or she and his or her license
40 to practice medicine should be immediately suspended or restricted or he or
41 she should be specially controlled, suspended in or restricted from the prac-
42 tice of medicine. In such cases, the board may summarily, and ex parte, order
43 temporary conditions of probation, suspension or restriction of said physician
44 and his or her license and authority to practice medicine in the state of
45 Idaho, pending further or final order in the proceedings. Thereafter the phy-
46 sician may, for good cause, request dissolution or amendment of any such tem-
47 porary order by petition filed with the board of professional discipline,
48 which petition shall be set for prompt hearing before said board or, if neces-
49 sary and if requested by the affected respondent physician in the interest of
50 early consideration, before a designated hearing officer or special committee
51 appointed by the board for that purpose, which officer or committee shall
52 forthwith hear said matter and report to the board its report and recommenda-
53 tions. The board, consistent with due process, shall rule on such petition for
54 dissolution or amendment with the least amount of delay reasonably possible.
55 Neither the record of the proceeding nor any order entered therein may be used
1 against the respondent physician in any other legal proceeding except upon
2 judicial review as provided elsewhere herein.
3 (12) Judicial Review. All final decisions by the board of professional
4 discipline shall be subject to judicial review pursuant to the procedures of
5 the administrative procedure s act, chapter 52, title 67, Idaho
7 (13) Protected Action and Communication. There shall be no liability on
8 the part of and no action for damages against:
9 (a) Any member of the board of professional discipline or the staff or
10 officials thereof for any action undertaken or performed within the scope
11 of the functions of said board or this chapter; or
12 (b) Any person providing information or testimony to the said board or
13 its staff or officials.
STATEMENT OF PURPOSE
The purpose of this legislation is to change the method of compensating Board Members so
they are not considered to be State employees. In addition, the purpose of this legislation is to
clarify that the Idaho State Board of Medicine and Board of Discipline have the power to issue
subpoenas during investigations.
The change in the method of compensating the Board Members may actually reduce the fiscal
impact to the State since Board Members would no longer be considered State employees and
would no longer participate in the Public Employer Retirement System.
The fiscal impact of the legislation related to administrative subpoenas will be no fiscal impact
on either licensing fees or the dedicated fund.
Name: Darleene Thorsted
Agency: Idaho State Board of Medicine
Statement of Purpose/Fiscal Impact