NO. 132.  AN ACT RELATING TO OVERSIGHT AND MANAGEMENT OF THE BOARD OF MEDICAL PRACTICE.

(H.755)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  3 V.S.A. § 121(2) is amended to read:

(2)  “Licensing board” or “board” refers to the boards, commissions and professions listed in section 122 of this title and, in the case of disciplinary matters or denials of licensure, an administrative law officer appointed under subsection 129(j) of this title.  Notwithstanding statutory language to the contrary except provisions relating to the powers of the medical practice board, this subchapter shall apply to all those boards.

Sec. 2.  REPEAL

Subdivision 122(9) of Title 3 (attachment of the board of medical practice to the office of professional regulation) is repealed.

Sec. 3.  26 V.S.A. § 1317 is added to read:

§ 1317.  UNPROFESSIONAL CONDUCT TO BE REPORTED TO BOARD

(a)  Any hospital, clinic, community mental health center or other health care institution in which a licensee performs professional services shall report to the commissioner of health, along with supporting information and evidence, any disciplinary action taken by it or its staff which significantly limits the licensee’s privilege to practice or leads to suspension or expulsion from the institution.  The report shall be made within 10 days of the date such disciplinary action was taken, and, in the case of a licensee who is employed by, or under contract with, a community mental health center, a copy of the report shall also be sent to the commissioner of developmental and mental health services.  This section shall not apply to cases of resignation or separation from service for reasons unrelated to disciplinary action.

(b)  Within 30 days of any judgment or settlements involving a claim of professional negligence by a licensee, any insurer of the licensee shall report the information to the commissioner of health.

(c)  Except as provided in section 1368 of this title, information provided to the department under this section shall be confidential unless the department decides to treat the report as a complaint, in which case, the provisions of section 1318 of this title shall apply.

(d)  A person who acts in good faith in accord with the provisions of this section shall not be liable for damages in any civil action.

(e)  A person who violates this section shall be subject to a civil penalty of not more than $1,000.00.

Sec. 4.  26 V.S.A. § 1318 is added to read:

§ 1318.  ACCESSIBILITY AND CONFIDENTIALITY OF DISCIPLINARY

              MATTERS

(a)  It is the purpose of this section both to protect the reputation of licensees from public disclosure of unwarranted complaints against them and to fulfill the public’s right to know of any action taken against a licensee when that action is based on a determination of unprofessional conduct.

(b)  All meetings and hearings of the board shall be open to the public, except in accord with section 313 of Title 1.

(c)  The commissioner of health shall prepare and maintain a register of all complaints, which shall be a public record, and which shall show:

(1)  with respect to all complaints, the following information:

(A)  the date and the nature of the complaint, but not including the identity of the licensee; and

(B)  a summary of the completed investigation; and

(2)  only with respect to complaints resulting in filing of disciplinary charges or stipulations or the taking of disciplinary action, the following additional information:

(A)  the name and business addresses of the licensee and complainant;

(B)  formal charges, provided they have been served or a reasonable effort to serve them has been made;

(C)  the findings, conclusions and order of the board;

(D)  the transcript of the hearing, if one has been made, and exhibits admitted at the hearing;

(E)  stipulations filed with the board; and

(F)  final disposition of the matter by the appellate officer or the courts.

(d)  The commissioner shall not make public any information regarding disciplinary complaints, proceedings or records, except the information required to be released under this section.

(e)  A licensee or applicant shall have the right to inspect and copy all information in the possession of the department of health pertaining to the licensee or applicant, except investigatory files which have not resulted in charges of unprofessional conduct and attorney work product.

(f)  For the purposes of this section, “disciplinary action” means action that suspends, revokes, limits or conditions a license in any way, and includes reprimands.

Sec. 5.  26 V.S.A. § 1351 is amended to read:

§ 1351.  BOARD OF MEDICAL PRACTICE

(a)  A state board of medical practice is created.  The board shall be composed of 12 17 members, nine of whom shall be licensed physicians, one of whom shall be a physician’s assistant certified pursuant to chapter 31 of this title, one of whom shall be a podiatrist as described in section 322 of this title, and three six of whom shall be persons not associated with the medical field.  The governor, with the advice and consent of the senate, shall appoint the members of the board.  Appointments shall be for a term of three five years, except that a vacancy occurring during a term shall be filled by an appointment by the governor for the unexpired term.  No member shall be appointed to more than two consecutive full terms, but a member appointed for less than a full term (originally or to fill a vacancy) may serve two full terms in addition to such part of a full term, and a former member shall again be eligible for appointment after a lapse of one or more years.  Any member of the board may be removed by the governor at any time.  The board shall elect from its members a chairman, vice-chairman, chair, vice chair and secretary and treasurer who shall serve for one year and until their successors are appointed and qualified.  The board shall meet upon the call of the chairman chair or the commissioner of health, or at such other times and places as the board may determine.  Except as provided in section 1360 of this title, seven nine members of the board shall constitute a quorum for the transaction of business.  The affirmative vote of the majority of the members present shall be required to carry any motion or resolution, to adopt any rule, to pass any measure or to authorize any decision or order of the board.

(b)  In the performance of their duties members of the board shall be paid $30.00 per diem and their actual and necessary expenses.

(c)  [Repealed.]

(d)  The treasurer shall receive license fees, keep a true account thereof and quarterly, on the first day of February, May, August and November, he shall make a report to the state treasurer of examinations given and licenses granted and pay into the state treasury all moneys received by him therefor.

(e)  Every three years in the month of July, the governor shall appoint a physician’s assistant to the state board of medical practice to participate in physician’s assistant’s related matters only.  The appointment shall be made from a list of physicians’ assistants certified pursuant to chapter 31 of this title and shall alternate between a physician’s assistant who has graduated from a program sponsored by an institution of higher education and a physician’s assistant who has completed a board-approved apprenticeship program.  The physician’s assistant appointed shall have a three-year term, and shall be entitled to the same compensation and reimbursement for expenses as other members of the board.

The board of medical practice is established as an office within the department of health.  With respect to the board, the commissioner shall have the following powers and duties to:

(1)  appoint a director of the office;

(2)  employ or contract for legal counsel and such assistants as may be required, to fix the compensation to be paid for these services, and to incur such other expenses as the commissioner determines are necessary;

(3)  employ, contract or make arrangements for the performance of administrative, investigative and similar services required or appropriate in the performance of the duties of the board;

(4)  act as custodian of the records of the board; and

(5)  prepare an annual budget and administer money appropriated to the board by the general assembly.  The budget of the board shall be part of the budget of the department.  A board of medical practice regulatory fee fund is created.  All board regulatory fees received by the department shall be deposited into this fund and used to offset up to two years of the costs incurred by the board, and shall not be used for any purpose other than professional regulation and responsibilities of the board, as determined by the commissioner of health.  To ensure that revenues derived by the department are adequate to offset the cost of regulation, the commissioner shall review fees from time to time, and present proposed fee changes to the general assembly.

(d)  The commissioner of health shall appoint, and may terminate the employment of, the director, administrative support staff, and any investigator or private legal counsel employed or retained by the board.

(e)  The commissioner of health may adopt, amend and repeal rules of the board which the commissioner determines necessary to carry out the provisions of this chapter.

Sec. 6.  26 V.S.A. § 1352 is amended to read:

§ 1352.  REPORTS

(a)  The board commissioner of health shall issue annually a report to the director of the office of professional regulation and secretary of human services and the secretary of the Vermont medical society which shall contain:

* * *

(b)  The commissioner of health shall issue annually a report to the house and senate committees on government operations which:

(1)  describes and evaluates the strengths and weaknesses of the department of health’s oversight and management of the board; and

(2)  details the progress of the data repository for licensee profiles described in section 1367 of this title, and recommends any necessary modifications to the requirements of that section.

Sec. 7.  26 V.S.A. § 1353 is amended to read:

§ 1353.  POWERS AND DUTIES OF THE BOARD

(a)  The board shall have the following powers and duties to:

(1)  To adopt, amend, and rescind such rules as it deems necessary to carry out the provisions of this chapter.

(2)  To investigate Investigate all complaints and charges of unprofessional conduct against any holder of a license or any medical practitioner practicing pursuant to section 1313 of this title, and to hold hearings to determine whether such charges are substantiated or unsubstantiated.

(3)  To employ or contract for legal counsel and such assistants as may be required, to fix the compensation to be paid for such services and to incur such other expenses as it may deem necessary.

(4)  To employ, contract or make arrangements for the performance of administrative, investigative and similar services required or appropriate in the performance of the board’s duties.

(5)(2)  To issue Issue subpoenas and administer oaths in connection with any investigations, hearings, or disciplinary proceedings held under this chapter.

(6)(3)  To take Take or cause depositions to be taken as needed in any investigation, hearing or proceeding.

(7), (8)  [Expired.]

(9)(4)  To undertake Undertake any such other actions and procedures specified in, or required or appropriate to carry out, the provisions of this chapter.

(10)(5)  To require Require a licensee or applicant to submit to a mental or physical examination, and an evaluation of medical knowledge and skill by individuals or entities designated by the board if the board has a reasonable basis to believe a licensee or applicant may be incompetent or unable to practice medicine with reasonable skill and safety.  The results of the examination or evaluation shall be admissible in any hearing before the board.  The results of an examination or evaluation obtained under this subsection and any information directly or indirectly derived from such examination or evaluation shall not be used for any purpose, including impeachment or cross‑examination against the licensee or applicant in any criminal or civil case, except a prosecution for perjury or giving a false statement.  The board shall bear the cost of any examination or evaluation ordered and conducted pursuant to this subdivision.  The licensee or applicant, at his or her expense, shall have the right to present the results or reports of independent examinations and evaluations for the board’s due consideration.  An order by the board that a licensee or applicant submit to an examination, test or evaluation shall be treated as a discovery order for the purposes of enforcement under sections 809a and 809b of Title 3.  The results of an examination or evaluation obtained under this subdivision shall be confidential except as provided in this subdivision and in section 131 of Title 3.

(11)  To direct the day-to-day activities and fix the compensation of an executive director who shall be an exempt employee. For purposes of subchapter 3 of chapter 5 of Title 1, the executive director shall be the custodian of the board’s public records.

(12)  To prepare an annual budget and administer moneys appropriated to the board by the general assembly.  The board’s budget shall not be part of the consolidated budget.

(b)  [Expired.]

(c)  The board shall be the appointing authority for and may terminate the employment of administrative support staff and any investigator or legal counsel employed or retained under this section.  Contracts entered into under this section shall not be subject to approval by the secretary of state, and shall serve to supplement services otherwise provided by the office of professional regulation under section 123 of Title 3.

(d)  The secretary of state shall be the appointing authority for the executive director of the board.  Whenever the secretary of state appoints an executive director, he or she shall do so from a list of names of at least three qualified candidates submitted by a committee consisting of the secretary of state or designee and at least three members of the board.  After consultation with the board, the secretary of state shall have the authority to terminate the employment of the executive director of the board.  All proceedings of the board related to the selection of an executive director, including the names and information about any candidates submitted to the secretary of state and not selected, shall remain confidential.

Sec. 8.  26 V.S.A. § 1354 is amended to read:

§ 1354.  UNPROFESSIONAL CONDUCT

(a)  The term “unprofessional conduct” as used in this chapter shall mean the following items or any one or combination thereof; whether or not the conduct at issue was committed within or without the state The board shall find that any one of the following, or any combination of the following, whether or not the conduct at issue was committed within or outside the state, constitutes unprofessional conduct:

* * *

(10)  failure to furnish a patient’s medical record to succeeding physicians or hospital upon proper request failure to make available promptly to a person using professional health care services, that person’s representative, succeeding health care professionals or institutions, when given proper written request and direction of the person using professional health care services, copies of that person’s records in the possession or under the control of the licensed practitioner;

* * *

(25)  failure to comply with an order of the board or violation of any term or condition of a license which is restricted or conditioned by the board;

(26)  any physician who, in the course of a collaborative agreement with a nurse practitioner allows the nurse practitioner to perform a medical act which is outside the usual scope of the physician’s own practice or which the nurse practitioner is not qualified to perform by training or experience, or which the ordinary reasonable and prudent physician engaged in a similar practice would not agree should be written into the scope of the nurse practitioner’s practice, shall be subject to disciplinary action by the board in accordance with chapter 23 of this title;

(27)  failure to comply with provisions of federal or state statutes or rules governing the practice of medicine or surgery;

(28)  practice of profession when medically or psychologically unfit to do so;

(29)  delegation of professional responsibilities to a person whom the licensed professional knows, or has reason to know, is not qualified by training, experience, education or licensing credentials to perform them;

(30)  conviction of a crime related to the practice of the profession or conviction of a felony, whether or not related to the practice of the profession.

(b)  The board may also find that failure to practice competently by reason of any cause on a single occasion or on multiple occasions constitutes unprofessional conduct.  Failure to practice competently includes, as determined by the board:

(1)  performance of unsafe or unacceptable patient care; or

(2)  failure to conform to the essential standards of acceptable and prevailing practice.

(c)  The burden of proof in a disciplinary action shall be on the state to show by a preponderance of the evidence that the person has engaged in unprofessional conduct.

     Sec. 9.  26 V.S.A. § 1355(b) is amended to read:

(b)  The chair may designate a hearing committee constituting less than a quorum of the board, to conduct hearings which would otherwise be heard by the board.  A hearing committee shall consist of at least one physician member of the board and one public member of the board.  No member of the hearing committee shall have been a member of the investigative committee which reviewed the matter at the investigative stage.  When the board is unable to assign one or more members to investigate a complaint or serve on a hearing committee by reason of disqualification, resignation, vacancy or necessary absence, the commissioner may, at the request of the board, appoint ad hoc members to serve on the investigation or the hearing for that matter only.  When a hearing is conducted by a hearing committee, the committee shall report its findings and conclusions to the board, within 60 days of the conclusion of the hearing unless the board grants an extension.  The board may take additional evidence and may accept, reject or modify the findings and conclusions of the committee.  Judgment on the findings shall be rendered by the board.  Nothing herein is intended to limit the discretion of the board to determine whether a matter will proceed to hearing before a hearing officer under subsection (f) of section 129 of Title 3, a hearing committee under this subsection, or by a quorum of the board.

Sec. 10.  26 V.S.A. § 1367 is added to read:

§ 1367.  APPEALS FROM BOARD ORDERS

A party aggrieved by a final order of the board may, within 30 days of the order, appeal that order to the Vermont supreme court on the basis of the record created before the board.

Sec. 11.  26 V.S.A. § 1397 is amended to read:

§ 1397.  RECORDING LICENSE

A person receiving a license, within thirty 30 days from the date thereof, shall cause the same to be recorded in the office of professional regulation with the department of health in a book kept for the purpose, and shall pay him  $5.00 for recording the same.  A license not so recorded shall be invalid.

Sec. 12.  26 V.S.A. § 1400(a) is amended to read:

(a)  Every person licensed to practice medicine and surgery by the board shall apply biennially for the renewal of his or her license.  One month prior to the date on which renewal is required, the board shall send to each licensee a license renewal application form and notice of the date on which the existing license will expire.  On or before the renewal date, the licensee shall file an application for license renewal and pay the required fee.  The board shall register the applicant and issue the renewal license.  Within one month following the date renewal is required, the board shall pay the license renewal fees into the medical practice board special fund and shall file a list of licensees with the office of professional regulation department of health.

Sec. 13.  26 V.S.A. § 1401a is amended to read:

§ 1401a.  FEES

(a)  The board department of health shall collect the following fees:

* * *

(b)  The department of health may charge the following fees:

(1)  Late renewal penalty of $25.00 for a renewal submitted less than 30 days late.  Thereafter, the department may increase the late renewal penalty by $5.00 for every additional month or fraction of a month, provided, the total penalty for a late renewal shall not exceed $100.00.

(2)  Reinstatement of revoked or suspended license, $20.00.

(3)  Replacement of license, $20.00.

(4)  Verification of license, $20.00.

Sec. 14.  26 V.S.A. § 1443 is amended to read:

§ 1443.  RECORDS IMMUNE FROM DISCOVERY

(a)  The proceedings, reports and records of committees defined in section 1441 of this title including information and evidence required to be reported pursuant to section 128 of Title 3 section 1317 of this title shall be confidential and privileged, and shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are subject to evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any findings, recommendations, evaluations, opinions, or other actions of such committees or any members thereof.  However, information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such action merely because they were presented during the proceedings of such committee, nor shall any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his or her knowledge, but such witness shall not be asked about his or her testimony before such committee or about opinions formed by him or her as a result of such committee hearings.

(b)  Notwithstanding the provisions of subsection (a) of this section, a peer review committee shall provide a board with all supporting information and evidence pertaining to information required to be reported under section 128 of Title 3 section 1317 of this title.

(c)  Notwithstanding the provisions of section 131 of Title 3 section 1318 of this title, relating to accessibility and confidentiality of disciplinary matters, the proceedings, reports, records, supporting information and evidence of a peer review committee provided by the committee to a board in accordance with the provisions of section 128 of Title 3 section 1317 of this title and subsection (b) of this section may be used by the board for disciplinary purposes but shall not be subject to public disclosure.

Sec. 15.  26 V.S.A. § 1368 is added to read:

§ 1368.  DATA REPOSITORY; LICENSEE PROFILES

(a)  A data repository is created within the department of health which will be responsible for the compilation of all data required under this section and any other law or rule which requires the reporting of such information.  Notwithstanding any provision of law to the contrary, the department shall collect the following information to create individual profiles on all health care professionals licensed, certified, or registered by the department, pursuant to the provisions of this title, in a format created that shall be available for dissemination to the public:

(1)  A description of any criminal convictions for felonies and serious misdemeanors, as determined by the commissioner of health, within the most recent 10 years.  For the purposes of this subdivision, a person shall be deemed to be convicted of a crime if he or she pleaded guilty or was found or adjudged guilty by a court of competent jurisdiction.

(2)  A description of any charges to which a health care professional pleads nolo contendere or where sufficient facts of guilt were found and the matter was continued without a finding by a court of competent jurisdiction.

(3)  A description of any formal charges served, findings, conclusions, and orders of the licensing authority, and final disposition of matters by the courts within the most recent 10 years.

(4)  A description of any formal charges served by licensing authorities, findings, conclusions, and orders of such licensing authorities, and final disposition of matters by the courts in other states within the most recent 10 years.

(5)  A description of revocation or involuntary restriction of hospital privileges for reasons related to competence or character that has been issued by the hospital’s governing body or any other official of the hospital after procedural due process has been afforded, or the resignation from, or nonrenewal of, medical staff membership or the restriction of privileges at a hospital taken in lieu of, or in settlement of, a pending disciplinary case related to competence or character in that hospital.  Only cases which have occurred within the most recent 10 years shall be disclosed by the board to the public.

(6)(A)  All medical malpractice court judgments and all medical malpractice arbitration awards in which a payment is awarded to a complaining party during the last 10 years, and all settlements of medical malpractice claims in which a payment is made to a complaining party within the last 10 years.  Dispositions of paid claims shall be reported in a minimum of three graduated categories, indicating the level of significance of the award or settlement. Information concerning paid medical malpractice claims shall be put in context by comparing an individual health care professional’s medical malpractice judgment awards and settlements to the experience of other health care professionals within the same specialty within the New England region or nationally.  The commissioner may, in consultation with the Vermont medical society, report comparisons of individual health care professionals covered under this section to all similar health care professionals within the New England region or nationally.

(B)  Comparisons of malpractice payment data shall be accompanied by:

(i)  an explanation of the fact that physicians treating certain patients and performing certain procedures are more likely to be the subject of litigation than others;

(ii)  a statement that the report reflects data for the last 10 years, and the recipient should take into account the number of years the physician has been in practice when considering the data;

(iii)  an explanation that an incident giving rise to a malpractice claim may have occurred years before any payment was made due to the time lawsuits take to move through the legal system;

(iv)  an explanation of the possible effect of treating high-risk patients on a physician’s malpractice history; and

(v)  an explanation that malpractice cases may be settled for  reasons other than liability.

(C)  Information concerning all settlements shall be accompanied by the following statement:  “Settlement of a claim may occur for a variety of reasons which do not necessarily reflect negatively on the professional competence or conduct of the health care professional.  A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred.”  Nothing herein shall be construed to limit or prevent the licensing authority from providing further explanatory information regarding the significance of categories in which settlements are reported.  Pending malpractice claims and actual amounts paid by or on behalf of a physician in connection with a malpractice judgment, award or settlement shall not be disclosed by the commissioner of health or by the licensing authority to the public.  Nothing herein shall be construed to prevent the licensing authority from investigating and disciplining a health care professional on the basis of medical malpractice claims that are pending.

(7)  The names of medical professional schools and dates of graduation.

(8)  Graduate medical education.

(9)  Specialty board certification.

(10)  The number of years in practice.

(11)  The names of the hospitals where the health care professional has privileges.

(12)  Appointments to medical school or professional school faculties, and indication as to whether the health care professional has had a responsibility for teaching graduate medical education within the last 10 years.

(13)  Information regarding publications in peer-reviewed medical literature within the last 10 years.

(14)  Information regarding professional or community service activities and awards.

(15)  The location of the health care professional’s primary practice setting.

(16)  The identification of any translating services that may be available at the health care professional’s primary practice location.

(17)  An indication of whether the health care professional participates in the Medicaid program and is currently accepting new patients.

(b)  The department shall provide individual health care professionals with a copy of their profiles prior to the initial release to the public and each time a physician’s profile is modified or amended.  A health care professional shall be provided a reasonable time to correct factual inaccuracies that appear in such profile, and may elect to have his or her profile omit the information required under subdivisions (a)(12) through (14) of this section.  In collecting information for such profiles and in disseminating the same, the department shall inform health care professionals that they may choose not to provide such information required under subdivisions (a)(12) through (14).

(c)  The profile shall include the following conspicuous statement:  “This profile contains information which may be used as a starting point in evaluating the physician.  This profile should not, however, be your sole basis for selecting a physician.”

Sec. 16.  TRANSFER OF OVERSIGHT AND MANAGEMENT OF BOARD

               OF MEDICAL PRACTICE

(a)  Under this act, the board of medical practice is transferred to the department of health.  All assets possessed or owned by the board of medical practice before the effective date of this act shall be transferred to the possession or ownership of the department of health. 

(b)  All personnel employed by the board before the effective date of this act shall be transferred to, and shall become employees of, the department of health until the commissioner of health determines otherwise.

(c)  All members of the board before the effective date of this act shall remain members of the board until the expiration of their terms.

(d)  All rules of the board in effect before the effective date of this act shall remain in effect until amended or repealed.

Sec. 17.  SUNSET

26 V.S.A. § 1352(b) (annual report of commissioner of health) shall expire on July 1, 2006.

Sec. 18.  REPEAL OF SUNSET

Sec. 210 of No. 49 of the Acts of 1999 (medical practice board fees; sunset) is repealed in its entirety so that 26 V.S.A. § 1401a shall not expire.

Approved:  June 13, 2002