1998 Legislation
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HOUSE BILL NO. 453 – Med Bd,investigatns/subpoenas


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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

Bill Text


 ||||              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

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-
19        tice.
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
53        Code.
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
 6    Code.
 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 / Fiscal Impact

    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.
                               FISCAL IMPACT
    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
    Phone: 334-2822
    Statement of Purpose/Fiscal Impact
    H 453