Senate Bill 958 would make the following changes to the Medical Practice Act:
- No investigation of a licensee could be initiated upon the direction of a single member of the Board without another Board member concurring. A Board member could not serve as an expert in determining the basis for the initiation of an investigation.
- At the time of first communication from the Board or agent of the Board to a licensee regarding a complaint or investigation, the Board would be required to provide notice in writing to the licensee that informs the licensee of certain basic rights and responsibilities related to the investigation process.
- After the Board has made a non-public determination to initiate disciplinary proceedings, but before public charges have been issued, the licensee upon written request would be entitled to an informal non-public pre-charge conference. Prior to the conference, the licensee would also be entitled to receive specific information gathered by the Board, including exculpatory evidence, expert opinions. At this stage, the licensee would also receive notice about the Board’s disciplinary procedures.
- Unless the Board determines that the public health safety or welfare requires emergency action, it would be prohibited from seeking to require a licensee to take any action adversely impacting the licensee’s medical practice or license without first giving the licensee notice of the proposed action, the basis for the proposed action, and certain information necessary for the licensee to understand their rights and responsibilities.
- The Board would be required to complete any investigation no later than six months from the date of its first communication with the licensee, unless the Board provides the licensee with a written explanation of the circumstances and reasons for extending the investigation.
- Generally, if a licensee retains counsel in any matter related to a complaint, investigation or proceeding, the Board would be required to communicate to the licensee through the licensee’s counsel. If the Board has not made a determination to initiate disciplinary proceedings, the Board would be permitted to serve orders to produce, orders to appear, or provide notice that the Board will not be taking any further action against a licensee to both the licensee and the licensee’s counsel simultaneously.
- Once charges have been issued against a licensee, neither counsel for the Board nor counsel for the licensee would be permitted to communicate ex parte, directly or indirectly, with a hearing officer or Board member.
- In conducting hearings, the Board would be required to retain independent counsel to provide advice to the Board or any hearing committee concerning contested matters of procedure and evidence.
- A majority of hearing officers participating in a hearing committee would be required to be licensees of the Board. The Board would be required to make a reasonable effort to include on the panel at least one physician licensed in the same or similar specialty as the licensee against whom the complaint has been filed. If a current or retired judge who is not a current or past Board member participates as a hearing officer, the Board may elect not to retain independent counsel for the hearing committee
- No member of the Board who served as a member of the hearing committee would be permitted to participate as a member of the quorum of the Board that issues a final agency decision.
- A Board member would not be permitted to testify as an expert witness
- Any final agency decision of the Board would be based upon a preponderance of the evidence admitted in the hearing.
- The law would be clarified to permit a licensee against whom the Board imposes any public disciplinary sanction to appeal the action within 30 days.
- A licensee against whom any public disciplinary sanction is imposed by the Board would be permitted to obtain a review of the decision of the Board in the Superior Court of Wake County, or the county in which the licensee resides. The court would be required to schedule and hear the case within six months of the filing of the appeal.
- When the Board receives a complaint regarding the care of a patient, the Board would be required to provide the licensee with a copy of the complaint as soon as practical and inform the complainant of the disposition of the Board’s inquiry into the complaint and the Board’s basis for that disposition. If providing a copy of the complaint identifies an anonymous complainant or compromises the integrity of an investigation, the Board would be required to provide the licensee with a summary of all substantial elements of the complaint.
If approved by the General Assembly, these changes would become effective October 1, 2009 and would apply to investigative or disciplinary actions initiated on or after that date. We applaud the leadership of Senator Nesbitt in sponsoring S958 and recognizing the need to ensure fair treatment of Medical Board licensees.