HB 258: "An Act relating to the State Medical Board; and amending Rule 609(b), Alaska Rules of Appellate Procedure."
00 HOUSE BILL NO. 258 01 "An Act relating to the State Medical Board; and amending Rule 609(b), Alaska Rules 02 of Appellate Procedure." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 08.64.103 is amended to read: 05 Sec. 08.64.103. Investigator; executive secretary. (a) After consulting with 06 the board, the department shall employ two persons who are not members of the 07 board; one shall be assigned as the investigator for the board; the other shall be 08 assigned as the executive secretary for the board. Subject to the provisions of (b) - 09 (f) of this section, the [THE] investigator shall 10 (1) conduct investigations into alleged violations of this chapter and 11 into alleged violations of regulations and orders of the board; 12 (2) at the request of the board, conduct investigations based on 13 complaints filed [WITH THE DEPARTMENT OR] with the board; and 14 (3) be directly responsible and accountable to the board, except that
01 only the department has authority to terminate the investigator's employment and the 02 department shall provide day to day and administrative supervision of the investigator. 03 * Sec. 2. AS 08.64.103 is amended by adding new subsections to read: 04 (b) In matters assigned to the investigator, the investigator shall promptly 05 make a preliminary determination. If the preliminary determination is that a complaint 06 or alleged violation of this chapter is frivolous, trivial, unfounded, or outside the scope 07 of the board's jurisdiction, or there is insufficient evidence to warrant a full 08 investigation, the investigator shall terminate the investigation and, by the next 09 meeting of the board, notify the board and the department of the termination. A 10 licensee who is the subject of an investigation terminated under this subsection is not 11 considered to have been the subject of a disciplinary investigation. 12 (c) If an investigator does not terminate an investigation under (b) of this 13 section, the investigator may proceed with the investigation only if a member of the 14 board has reviewed the matter and determined that there is sufficient justification to 15 proceed further with the investigation. If the subject of the investigation is a 16 physician, the reviewing board member shall be a physician. If a board member 17 determines that an investigation should proceed, the complaint or allegation is 18 considered to be a formal complaint or allegation. If no board member authorizes the 19 investigator to proceed with the investigation, the investigator shall terminate the 20 investigation. A licensee who is the subject of an investigation terminated under this 21 subsection is not considered to have been the subject of a disciplinary investigation. A 22 board member who authorizes continuation of an investigation under this subsection is 23 not precluded from participating in a subsequent disciplinary proceeding about the 24 complaint or allegation based solely on the authorization to continue the investigation. 25 (d) A person licensed under this chapter has 30 days to respond to a request 26 from an investigator for information unless the investigator has obtained a court order 27 from the superior court requiring production of information in less than 30 days. 28 (e) An investigator may not make a verbatim recording in any manner of a 29 conversation that is part of an investigation under this section unless the investigator 30 has informed all of the other parties to the conversation of the intent to record the 31 conversation before recording it, an acknowledgment of each party's consent to the
01 recording is contained on the recording, and the investigator has made each person 02 aware of all parties that are present at the investigator's end of the conversation. 03 (f) An investigator may not offer to settle a potential or actual disciplinary 04 action against a person licensed under this chapter by way of a memorandum of 05 agreement or similar document unless a majority of the membership of the board has 06 approved the offer before is it presented to the licensee. 07 (g) A licensee about whom an investigation has been conducted shall be 08 informed by the board within 30 days after 09 (1) an investigation is terminated under (b) or (c) of this section; or 10 (2) the board decides not to impose a disciplinary sanction after a 11 complaint or allegation becomes a formal complaint under (c) of this section. 12 * Sec. 3. AS 08.64.130(a) is amended to read: 13 (a) Except as provided in (d) of this section, the [THE] board shall preserve 14 a record of its proceedings, which must contain the name, age, residence, and duration 15 of residence of each applicant for a license, the time spent by the applicant in medical 16 study, the place of medical study, and the year and school from which degrees were 17 granted. The record must also show whether the applicant was granted a license or 18 rejected. 19 * Sec. 4. AS 08.64.130 is amended by adding a new subsection to read: 20 (d) Board records concerning an investigation that was terminated under 21 AS 08.64.103(b) or (c) or for which no disciplinary action was taken after the 22 complaint or allegation became a formal complaint under AS 08.64.103(c) are 23 confidential and not subject to public inspection or copying under AS 40.25.110 - 24 40.25.220. 25 * Sec. 5. AS 08.64.160 is amended to read: 26 Sec. 08.64.160. Applicability of Administrative Procedure Act. (a) The 27 board shall comply with AS 44.62 (Administrative Procedure Act) with respect to 28 adoption of regulations. The board shall comply with AS 44.62.330 - 44.62.630 as 29 to matters covered by those sections except to the extent that the provisions of (b) 30 - (f) of this section are inconsistent with AS 44.62.330 - 44.62.630; in those 31 matters, (b) - (f) of this section shall take precedence.
01 * Sec. 6. AS 08.64.160 is amended by adding new subsections to read: 02 (b) The board may not delegate to a hearing officer the board's authority to act 03 in relation to, to hear, or to decide a case that is covered by AS 44.62.330 - 44.62.630. 04 The chair of the board shall preside over a hearing required under AS 44.62.450 unless 05 disqualified under AS 44.62.450(c), in which case the remaining members of the 06 board shall select from among themselves a member who is qualified to preside over 07 the hearing. The board may not assign to a hearing officer the reconsideration of a 08 decision under AS 44.62.540. 09 (c) A member of the board who has heard or attested in writing to having 10 reviewed the evidence may participate in a decision governed by AS 44.62.330 - 11 44.62.630. 12 (d) The board shall render a decision, which must include proposed sanctions, 13 within 60 days after completion of a hearing held under AS 44.62.330 - 44.62.630. 14 The board shall render its decision at a meeting that coincides with a regularly 15 scheduled meeting of the board unless a regularly scheduled meeting of the board will 16 not be held within 60 days after completion of the hearing held under AS 44.62.330 - 17 44.62.630. Unless an emergency situation exists that would result in immediate harm 18 to the public if board action is delayed by more than 10 days, the licensee and the 19 licensee's attorney, if any, shall be given at least 10 days' written notice of a board 20 meeting at which a decision will be rendered about a disciplinary sanction. At the 21 meeting where a decision will be rendered about a disciplinary sanction, the board 22 must afford the licensee the opportunity to provide oral and written testimony from 23 any source regarding the proposed sanction before the board makes its decision. 24 (e) Except in a case that involves illegal procurement, sale, dispensing, or 25 prescription of drugs, or otherwise involves an intentional act or omission that violates 26 state or federal laws relating to drugs, and notwithstanding AS 44.62.570(d), if a 27 decision of the board to revoke a license, suspend a license for more than 30 days, or 28 impose a fine greater than $10,000 is timely appealed to the superior court, 29 (1) the court shall hold the hearing on the appeal de novo if requested 30 by the licensee; and 31 (2) the licensee is entitled to a jury trial on request.
01 (f) In a disciplinary action against a licensee, the board has the burden of proof 02 by clear and convincing evidence except that, if the disciplinary action involves illegal 03 procurement, sale, dispensing, or prescription of drugs, or otherwise involves an 04 intentional act or omission that violates state or federal laws relating to drugs, the 05 board has the burden of proof by a preponderance of the evidence. 06 * Sec. 7. AS 08.64.331(a) is amended to read: 07 (a) If the board finds by clear and convincing evidence that a licensee has 08 committed an act set out in AS 08.64.326(a), the board may 09 (1) permanently revoke a license to practice; 10 (2) suspend a license for a determinate period of time; 11 (3) censure a licensee; 12 (4) issue a letter of reprimand; 13 (5) place a licensee on probationary status and require the licensee to 14 (A) report regularly to the board on matters involving the basis 15 of probation; 16 (B) limit practice to those areas prescribed; 17 (C) continue professional education until a satisfactory degree 18 of skill has been attained in those areas determined by the board to need 19 improvement; 20 (6) impose limitations or conditions on the practice of a licensee; 21 (7) impose a civil fine of not more than $25,000; or 22 (8) impose one or more of the sanctions set out in (1) - (7) of this 23 subsection. 24 * Sec. 8. AS 08.64.331(c) is amended to read: 25 (c) The board may summarily suspend a license before final hearing or during 26 the appeals process if the board finds by clear and convincing evidence that the 27 licensee poses a clear and immediate danger to the public health and safety if the 28 licensee continues to practice. A person whose license is suspended under this section 29 is entitled to a hearing by the board not [NO] later than seven days after the effective 30 date of the order and the person may appeal the suspension after a hearing to the 31 superior [A] court [OF COMPETENT JURISDICTION].
01 * Sec. 9. AS 08.64.331 is amended by adding a new subsection to read: 02 (g) When considering imposition of a disciplinary sanction on a licensee, the 03 board shall consider the following factors: (1) the safety of the public, (2) the public's 04 need for medical care, and (3) the potential for rehabilitation of the licensee. When 05 considering imposition of a fine under this section, the board shall also consider the 06 ability of the licensee to pay the fine. 07 * Sec. 10. AS 44.62.330(a)(8) is repealed. 08 * Sec. 11. The uncodified law of the State of Alaska is amended by adding a new section to 09 read: 10 INDIRECT COURT RULE AMENDMENT. AS 08.64.160(e)(1), enacted by sec. 6 11 of this Act, has the effect of changing Rule 609(b), Alaska Rules of Appellate Procedure, by 12 limiting the court's discretion as to whether or not an appeal of certain decisions by the State 13 Medical Board will be heard by the court de novo. 14 * Sec. 12. The uncodified law of the State of Alaska is amended by adding a new section to 15 read: 16 CONDITIONAL EFFECT. AS 08.64.160(e)(1), enacted by sec. 6 of this Act, takes 17 effect only if sec. 11 of this Act receives the two-thirds majority vote of each house required 18 by art. IV, sec. 15, Constitution of the State of Alaska.