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BILL AS INTRODUCED 2007-2008

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H.837

Introduced by Representative Chen of Mendon

Referred to Committee on

Date:

Subject:  Professions and occupations; medicine and surgery; podiatry; anesthesiologist assistants; physician’s assistants; medical practice board; unprofessional conduct; hearings commission

Statement of purpose:  This bill proposes to create a medical practice hearings commission to hear cases of unprofessional conduct involving persons regulated by the state board of medical practice.

AN ACT RELATING TO THE CREATION OF A MEDICAL PRACTICE BOARD HEARINGS COMMISSION

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

Sec. 1.  26 V.S.A. § 321 is amended to read:

§ 321.  DEFINITIONS

In this chapter, unless the context requires another meaning:

(1)  "Board" means the board of medical practice.

(2)  “Commission” means the state medical practice hearing commission established under section 1351 of this title.

(3)  "Disciplinary action" means any action against a licensee or an applicant by the board or commission, the appellate officer, or on appeal therefrom, when that action suspends, revokes, limits or conditions licensure in any way, and includes reprimands.

(3)(4) "Practice of podiatry," by a podiatric physician, means any medical, mechanical, surgical, electrical, manipulation, strapping or bandaging treatment of the ailments pertaining to the human foot and lower leg distal to the myotendinous junction of the triceps surae.  If spinal or general anesthesia is required, it shall be administered by a health care professional regulated under this title who is authorized to administer anesthesia within the scope of his or her practice.  In the case of amputations other than toe amputations and in the case of surgical treatment at or above the ankle, the surgical treatment shall be performed only in a general hospital licensed under chapter 43 of Title 18 or a certified ambulatory surgical center as defined in section 9432 of Title 18.  For purposes of this section, "ankle" means the joint between the tibia and fibula proximally and the talus distally.

Sec. 2.  26 V.S.A. § 375 is amended to read:

§ 375.  UNPROFESSIONAL CONDUCT

* * *

(b)  The following conduct by a licensed podiatrist constitutes unprofessional conduct.  When that conduct is by an applicant or person who later becomes an applicant, it may constitute grounds for denial of licensure:

* * *

(4)  failing to comply with provisions of federal or state statutes or rules governing the profession, failing to comply with an order of the commission, violating any term or condition of a license which is restricted or conditioned by the board or commission, or failing to respond or cooperate in an investigation conducted by the board;

* * *

(d)  A person aggrieved by a determination of the board commission 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 commission.

Sec. 3.  26 V.S.A. § 376 is amended to read:

§ 376.  DISPOSITION OF COMPLAINTS

(a)  Complaints and allegations of unprofessional conduct shall be processed in a manner consistent with chapter 23 of this title and in accordance with the rules of procedure of the board of medical practice and the commission.

(b)  The board shall accept complaints from any person including a state or federal agency and the attorney general.  The board may initiate disciplinary action in any complaint against a podiatrist and may act without having received a complaint.  After a hearing and upon a finding of unprofessional conduct, the commission may suspend, revoke, limit, or condition a license, or may issue a public reprimand.

(c)  After hearing and upon a finding of unprofessional conduct, the board may suspend or revoke a license, refuse to issue or renew a license, issue a warning, or limit or condition a license.

(d)  The board commission may approve a negotiated agreement between the parties when it is in the best interest of the public health, safety or welfare to do so.  Such an agreement may include, without limitation, any of the following conditions or restrictions which may be in addition to, or in lieu of, suspension:

* * *

(e)(d)  Upon application by a licensee, the board commission may modify the terms of an order under this section and, if licensure has been revoked or suspended, may order reinstatement on terms and conditions it deems proper.

Sec. 4.  26 V.S.A. § 1311 is amended to read:

§ 1311.  DEFINITIONS

For the purposes of this chapter:

(1)  A person who advertises or holds himself or herself out to the public as a physician or surgeon, or who assumes the title or uses the words or letters "Dr.," "Doctor," "Professor," "M.D.," or "M.B.,"  "M.D." in connection with his or her name, or any other title implying or designating that he or she is a practitioner of medicine or surgery in any of its branches, or shall advertise or hold himself or herself out to the public as one skilled in the art of curing or alleviating disease, bodily injuries or physical or nervous ailments, or shall prescribe, direct, recommend, or advise, give or sell for the use of any person, any drug, medicine or other agency or application for the treatment, cure or relief of any bodily injury, infirmity or disease, or who follows the occupation of treating diseases by any system or method, shall be deemed a physician, or practitioner of medicine or surgery.

(2)  "Board" means the state board of medical practice established under section 1351 of this title.

(3)  “Commission” means the state medical practice hearing commission established under section 1351 of this title.

(4)  "License" means license to practice medicine and surgery in the state as defined in subchapter 3 of this chapter. "Licensee" includes individuals licensed under this chapter and chapter 7 of this title and registrants and holders of certificates issued by the board.

(4)(5)  "Medical director" means, for purposes of this chapter, a physician who is board-certified or board-eligible in his or her field of specialty, as determined by the American Board of Medical Specialties (ABMS), and who is charged by a health maintenance organization with responsibility for overseeing all clinical activities of the plan in this state, or his or her designee.

(5)(6)  "Health maintenance organization", as used in this section, shall have the same meaning as defined in subdivision 9402(10) of Title 18.

(6)(7)  "Members" means members of the board or commission, as applicable.

(7)(8) "Secretary" means the secretary of the board.

Sec. 5.  26 V.S.A. § 1318 is amended to read:

§ 1318.  ACCESSIBILITY AND CONFIDENTIALITY OF DISCIPLINARY

              MATTERS

* * *

(b)  All meetings and hearings of the board or the commission 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 the report date and the recommendation of a board committee appointed to investigate a complaint and any attorney general recommendation presented to the board, but not including the identity of the licensee; and

(C)  any attorney general recommendation presented to the board if that recommendation contradicts a board committee recommendation, but not including the identity of the licensee; and

(D)  the decision date and the decision of the board on a committee recommendation, but not including the identity of the licensee unless the decision is to file disciplinary charges. 

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

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

(B)  any motion filed with the commission by the attorney general for a summary suspension of a license;

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

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

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

(E)(F)  stipulations filed with the board commission; and

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

* * *

Sec. 6.  26 V.S.A. § 1351 is amended to read:

§ 1351.  BOARD OF MEDICAL PRACTICE; STATE MEDICAL

              PRACTICE HEARING COMMISSION

(a)  A state board of medical practice is created. The board shall be composed of 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 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 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 chair, vice chair and secretary who shall serve for one year and until their successors are appointed and qualified.  The board shall meet upon the call of the chair or the commissioner of health, or at such other times and places as the board may determine.  Except as provided in section 1355 or 1360 of this title, 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)  A state medical practice hearing commission is created.  The commission shall comprise five members, at least three of whom shall be persons licensed in a profession regulated by the board, and at least one of whom shall be a person not associated with the medical field.  The commission shall adjudicate claims of unprofessional conduct and shall not engage in any board business.

(c)  The governor, with the advice and consent of the senate, shall appoint the members of the board and the members of the commission.  Appointments shall be for a term of 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 or the commission may be removed by the governor at any time.  The board and the commission shall elect from its members a chair, vice chair, and secretary who shall serve for one year and until their successors are appointed and qualified.  The board and the commission shall meet upon the call of the chair or the commissioner of health, or at such other times and places as the board or the commission may determine.  Nine members of the board shall constitute a quorum for the transaction of business.  The affirmative vote of the majority of the members of the board 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.  Three members of the commission shall constitute a quorum for the transaction of business.  The affirmative vote of the majority of the members of the commission 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.

(d)  In the performance of their duties members of the board and the commission shall be paid $30.00 the per diem authorized by law and their actual and necessary expenses.

(c)(e)  The board of medical practice is and the medical practice hearing commission are established as an office a unit within the department of health. With respect to the board unit, the commissioner shall have the following powers and duties to:

(1)  appoint a director of the office unit;

(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 and the commission;

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

(5)  prepare an annual budget and administer money appropriated to the board unit by the general assembly.  The budget of the board unit 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 the commission, and shall not be used for any purpose other than professional regulation and responsibilities of the board or the commission, 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)(f)  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 to provide services to the board or the commission.

(e)(g)  The commissioner of health shall adopt, amend and repeal rules of the board which the commissioner determines necessary to carry out the provisions of this chapter and chapters 7, 29, and 31 of this title.

(f)(h)  Classified state employees who are employed as investigators by the department of health who have successfully met the standards of training for a full-time law enforcement officer under chapter 151 of Title 20 shall have the same powers as sheriffs in criminal matters and the enforcement of the law and in serving criminal process, and shall have all the immunities and matters of defense now available or hereafter made available to sheriffs in a suit brought against them in consequence for acts done in the course of their employment.

Sec. 7.  26 V.S.A. § 1352(a) is amended to read:

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

* * *

(3)  a summary of all disciplinary actions undertaken by the board commission during the year of the report; and

(4)  an accounting of all fees and fines received by the board unit and all expenditures and costs of the board for such year.  A sufficient number of copies shall be printed to supply the needs of the board unit and the state library.

Sec. 8.  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)  Investigate all complaints and charges of unprofessional conduct against any holder of a license or certificate, 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.

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

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

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

(5)  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.

(b)  The chair of the board or a person designated by the chair may issue subpoenas to compel the attendance of persons and the production of documents or other tangible things in connection with any investigation held under this chapter.


Sec. 9.  26 V.S.A. § 1353a is added to read:

§ 1353a.  Powers and duties of the commission

(a)  The commission shall have the power or duty to:

(1)  Hold hearings to determine whether charges of unprofessional conduct against a holder of a license or certificate, or against a medical practitioner practicing pursuant to section 1313 of this title are substantiated or unsubstantiated.

(2)  Hold hearings to determine whether a refusal to issue the licenses provided for in section 1391 of this title is substantiated or unsubstantiated.

(3)  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 commission if the commission 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 commission.  The results of an examination or evaluation obtained under this subsection and information directly or indirectly derived from the examination or evaluation shall not be used for any purpose, including impeachment or cross-examination against the licensee or applicant in a criminal or civil case, except a prosecution for perjury or giving a false statement.  The commission shall bear the cost of an 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 commission’s due consideration.  An order by the commission 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.

(4)  Undertake other actions and procedures incidental to the express duties and powers granted under this chapter as may be necessary or proper for the effective performance of its functions.

(b)  The chair of the commission, a member of the commission conducting a hearing, a hearing officer appointed by the commission, or a licensed attorney representing a party before the commission may compel, by subpoena, the attendance and testimony of witnesses at a hearing.  The chair of the commission, a member of the commission conducting a hearing, or a hearing officer appointed by the commission may administer oaths and may issue orders to compel discovery authorized by this chapter.

Sec. 10.  26 V.S.A. § 1354 is amended to read:

§ 1354.  UNPROFESSIONAL CONDUCT

(a)  The board commission 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:

* * *

(25)  failure to comply with an order of the board or commission, violation of any term or condition of a license which is restricted or conditioned by the board or commission, or failure to respond or cooperate in an investigation conducted 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 commission in accordance with chapter 23 of this title;

* * *

(b)  The board commission 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 commission:

* * *

Sec. 11.  26 V.S.A. § 1355 is amended to read:

§ 1355.  COMPLAINTS; HEARING COMMITTEE

(a)  Any person, firm, corporation, or public officer may submit a written complaint to the secretary charging board alleging that any person practicing medicine or surgery in the state with has engaged in unprofessional conduct, and specifying the grounds therefor.  If the board determines that such complaint merits consideration, or if the board shall have reason to believe, without a formal complaint, that any person practicing medicine or surgery in the state has been guilty of unprofessional conduct, and in the case of every formal complaint received, the chairman chair of the board shall designate four three or more members, including one or more public member members to serve as a committee to hear or investigate and report upon such charges the complaint.  Upon receipt of the committee report, the board shall meet and consider the committee’s report and any recommendation that may be offered by the attorney general and then decide whether charges should be filed with the commission.

(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 committee under this subsection or by a quorum of the board.


Sec. 12.  26 V.S.A. § 1356 is amended to read:

§ 1356.  SPECIFICATION OF CHARGES

If the board or committee determines that a hearing is warranted, the secretary or his or her designee shall prepare a specification of the charge or charges of unprofessional conduct made against a medical practitioner, a copy of which shall be filed with the committee and served upon the person complained against, together with a notice of the hearing, as provided in section 1357 of this title.

Sec. 13.  26 V.S.A. § 1357 is amended to read:

§ 1357.  TIME AND NOTICE OF HEARING

The After a charge has been filed, the time of hearing shall be fixed by the secretary commission as soon as convenient, but not earlier than 30 days after service of the charge upon the person complained against.  The secretary commission shall issue a notice of hearing of the charges, which notice shall specify the time and place of hearing and shall notify the person complained against that he or she may file with the secretary commission a written response within 20 days of the date of service.  Such The notice shall also notify the person complained against that a stenographic record of the proceeding will be kept, that he or she will have the opportunity to appear personally and to have counsel present, with the right to produce witnesses and evidence in on his or her own behalf, to cross-examine witnesses testifying against him or her, and to examine such documentary evidence as may be produced against him or her.

Sec. 14.  26 V.S.A. § 1358 is amended to read:

§ 1358.  SUBPOENAS; CONTEMPT

Subpoenas may be issued by the board a hearing committee or an investigative committee to compel the attendance of witnesses or production of documents or other tangible things at any investigation or hearing.  The board A hearing committee shall issue subpoenas at the request and on the behalf of the person complained against.  Upon consultation with one or more members of the board, the attorney general may apply to the commission for a summary suspension of a license.  The commission may issue a notice of summary suspension of a license in the event the commission determines that the public health, safety, or welfare imperatively requires emergency action and incorporates a finding to that effect in its order.  Notice of summary suspension shall be provided to the licensee, the attorney general, and the board.  A hearing shall be promptly instituted and determined.

Sec. 15.  26 V.S.A. § 1359 is amended to read:

§ 1359.  REPORT OF HEARING

Within 30 days after holding a hearing under the provisions of section 1357 and section 1358 of this title, the committee shall make a written report of its findings of fact and its recommendations, and the same shall be forthwith transmitted to the secretary, with a transcript of the evidence.

(a)  When the board is unable to assign one or more members to investigate a complaint by reason of disqualification, resignation, vacancy, or necessary absence, the commissioner may, at the request of the board, appoint one or more ad hoc members to serve on the board for that matter only.

(b)  When one or more members of the commission are unable to serve at a hearing by reason of disqualification, resignation, vacancy or necessary absence, the commissioner may, at the request of a member of the commission, appoint one or more ad hoc members to serve at a hearing for that matter only.

Sec. 16.  26 V.S.A. § 1359a is added to read:

§ 1359a.  STIPULATIONS

If the parties propose to resolve the matter through stipulation either before or after charges have been filed, and the board votes in agreement with the terms of the stipulation, a copy of the proposed stipulation shall be filed with the commission.  The stipulation shall become final and effective 15 days after it has been filed with the commission unless the commission decides within that time that the matter should be set for a hearing to consider whether the stipulation should be accepted or rejected by the commission.  In the event that the commission decides to set a hearing to consider a stipulation, the parties shall be notified and given an opportunity to attend and be heard before the commission makes a decision.

Sec. 17.  26 V.S.A. § 1360 is amended to read:

§ 1360.  HEARING BEFORE BOARD HEARINGS; EVIDENCE

(a)  If the board deems it necessary, the board may, after further notice to the person complained against, take testimony at a hearing before the board, conducted as provided for hearings before the hearing committee. In any event, whether the board makes its determination on the findings of the hearing committee, on the findings of the committee as supplemented by a second hearing before the board or on its own findings, the board shall determine the charge or charges upon the merits on the basis of the evidence in the record before it. Five members of the board, including at least one public member, shall constitute a quorum for purposes of this section.  The chair of the commission may appoint one or more members constituting less than a quorum of the commission to conduct hearings, or a hearing officer to conduct, or assist the commission in conducting hearings.

(b)  Members of the committee designated under section 1355 of this title to investigate the complaint shall not sit with the board when it conducts hearings under this section.  In the event a hearing is conducted by a number of members constituting less than a quorum of the commission or by a hearing officer, the member or members or the hearing officer may exercise the powers of the commission properly incidental to the conduct of the hearing and shall make findings of fact in writing to the commission in the form of a proposal for decision, which shall be considered a public document.  A copy of the proposal for decision shall be served upon the parties pursuant to section 811 of Title 3.  Judgment on the hearing officer’s proposal for decision shall be rendered by a majority of the commission.

(c)  Hearings shall be conducted in accordance with chapter 25 of Title 3.

(d)  In any proceeding under this section hearing which addresses an applicant’s or licensee’s alleged sexual misconduct, evidence of the sexual history of the victim of the alleged sexual misconduct shall neither be subject to discovery nor be admitted into evidence.  Neither opinion evidence of nor evidence of the reputation of the victim’s sexual conduct shall be admitted.  At the request of the victim, the hearing committee The commission may close portions of hearings to the public if the board commission deems it appropriate to close portions of the hearing in order to protect the identity of the victim and the confidentiality of his or her medical records.

Sec. 18.  26 V.S.A. § 1361 is amended to read:

§ 1361.  DECISION AND ORDER

(a)  If a majority of the members of the board commission vote in favor of finding the person complained against guilty of unprofessional conduct as specified in one or more of the charges, or any of them, the board the commission shall prepare written findings of fact, conclusions, and order, a copy of which shall be served upon the person complained against.

(b)  In such the order, the board commission may reprimand the person complained against, as it deems appropriate; condition, limit, suspend or revoke the license or practice of the person complained against; or take such other action relating to discipline or practice as the board commission determines is proper.

(c)  If the person complained against is found not guilty, or the proceedings against him or her are dismissed, the board commission shall forthwith order a dismissal of the charges and the exoneration of the person complained against.

(d)  Any order issued under this section shall be in full force and effect until further order of the board commission or a court of competent jurisdiction.

Sec. 19.  26 V.S.A. § 1365 is amended to read:

§ 1365.  NOTICE OF CONVICTION OF CRIME; INTERIM SUSPENSION

              OF LICENSE

(a)  The board shall treat a certified copy of the judgment of conviction of a crime for which a licensee may be disciplined under subdivision 1354(a)(3) 1354(a)(30) of this title as an unprofessional conduct complaint. The record of conviction shall be conclusive evidence of the fact that the conviction occurred. If a person licensed under this chapter is convicted of a crime by a court in this state, the clerk of the court shall within 10 days of such conviction transmit a certified copy of the judgment of conviction to the board.  The board shall review the documents provided to it and in appropriate cases shall file the certified copy of the judgment with the commission.

(b)  Upon receipt of the certified copy of the judgment of conviction of a crime for which a licensee may be disciplined for unprofessional conduct, the board commission may immediately suspend that person's license until the time for appeal has elapsed and no appeal has been taken, or until the judgment of conviction has been affirmed on appeal or has otherwise become final, and until further order of the board commission.  The board commission shall notify the licensee whose license has been suspended under this section and advise the licensee of his or her right to request a hearing, within 90 days. At such hearing, the licensee shall have the burden of showing why the suspension should not remain in effect pending appeal.

(c)  The disciplinary hearing shall not be commenced until all appeals from the conviction are concluded unless the licensee requests that the matter not be deferred.  The sole issue to be determined at such hearing shall be the nature of the disciplinary action to be taken by the board commission.

(d)  An interim suspension ordered under subsection (b) of this section shall automatically terminate if the licensee demonstrates that the conviction which served as the basis of the interim suspension has been reversed or vacated. However, a reversal or vacated conviction shall not prohibit the board commission from pursuing disciplinary action based on any cause other than the overturned conviction.

Sec. 20.  26 V.S.A. § 1366 is amended to read:

§ 1366.  OUT-OF-STATE DISCIPLINE; INTERIM SUSPENSION OF

              LICENSE

* * *

(c)  Upon receipt of the certified copy of an order or statement referred to in subsections subsection (a) or (b) of this section, the board shall file these documents with the commission.  The commission shall follow the procedures for interim suspension set forth in subsection 1365(b) of this title.

(d)  The sole issue to be determined at the disciplinary hearing on a complaint filed under subsection (a) of this section shall be the nature of the disciplinary action to be taken by the board commission.

Sec. 21.  26 V.S.A. § 1367 is amended to read:

§ 1367. APPEALS FROM BOARD ORDERS

A party aggrieved by a final order of the board commission 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 commission.


Sec. 22.  26 V.S.A. § 1398 is amended to read:

§ 1398.  REFUSAL OR REVOCATION OF LICENSES

The board may refuse to issue the licenses provided for in section 1391 of this title to persons who have been convicted of the practice of criminal abortion, or who, by false or fraudulent representations, have obtained or sought to obtain practice in their profession, or by false or fraudulent representations of their profession, have obtained or sought to obtain money or any other thing of value, or who assume names other than their own, or for any other immoral, unprofessional or dishonorable conduct.  For like cause, or when a licensee has been admitted to a mental hospital or has become incompetent by reason of senility mentally or physically unfit to practice medicine or surgery, the board commission may suspend or revoke any license certificate issued by it the board.  However, a license certificate shall not be suspended, revoked or refused until the holder or applicant is given a hearing before the board commission.  Likewise, a certificate shall not be suspended or revoked until the holder is given a hearing before the commission.  In the event of a license revocation, the holder of any a license certificate so revoked shall forthwith relinquish the same to the secretary of the board unit.


Sec. 23.  26 V.S.A. § 1651 is amended to read:

§ 1651.  DEFINITIONS

As used in this chapter:

* * *

(4)  “Commission” means the state medical practice hearing commission established under section 1351 of this title.

(5)  "Contract" means a legally binding written agreement containing the terms of employment of an anesthesiologist assistant.

(5)(6)  "Disciplinary action" means any action taken against a certified anesthesiologist assistant or an applicant by the board or commission or an appeal of that action when that action suspends, revokes, limits, or conditions certification in any way, or when it results in a reprimand of the person.

(6)(7)  "NCCAA" means the National Commission for Certification of Anesthesiologist Assistants, or its successor, as recognized by the board.

(7)(8)  "Protocol" means a detailed description of the duties and scope of practice delegated by an anesthesiologist to an anesthesiologist assistant.

(8)(9)  "Supervision" means the direction and review by the supervising physician, as determined to be appropriate by the board, of the medical services provided by the anesthesiologist assistant.  At a minimum, supervision shall mean that an anesthesiologist is readily available at the facility for consultation and intervention.

Sec. 24.  26 V.S.A. § 1658 is amended to read:

§ 1658.  UNPROFESSIONAL CONDUCT

(a)  The following conduct by a certified anesthesiologist assistant constitutes unprofessional conduct.  When that conduct is by an applicant or person who later becomes an applicant, it may constitute grounds for denial of certification:

* * *

(4)  failing to comply with provisions of federal or state statutes or rules governing the profession, failing to comply with an order of the commission, violating any term or condition of a license which is restricted or conditioned by the board or commission, or failing to respond or cooperate in an investigation conducted by the board;

* * *

(16)  failing to comply with an order of the board commission or violating any term or condition of a license certification restricted by the board or commission;

* * *

(b)  A person aggrieved by a final order of the board commission 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 commission.


Sec. 25.  26 V.S.A. § 1659 is amended to read:

§ 1659.  DISPOSITION OF COMPLAINTS

(a)  Complaints and allegations of unprofessional conduct shall be processed in a manner consistent with chapter 23 of this title and in accordance with the rules of procedure of the board and commission.

(b)  The board shall accept complaints from a member of the public, a physician, a hospital, an anesthesiologist assistant, a state or federal agency, or the attorney general.  The board shall initiate an investigation of an anesthesiologist assistant when a complaint is received or may act on its own initiative without having received a complaint.

(c)  After giving opportunity for hearing, the board commission shall take disciplinary action against an anesthesiologist assistant or applicant found guilty of unprofessional conduct.

(d)(c)  The board commission may approve a negotiated agreement between the parties when it is in the best interest of the public health, safety, or welfare to do so.  That agreement may include any of the following conditions or restrictions which may be in addition to, or in lieu of, suspension:

* * *

(e)(d)  Upon application, the board commission may modify the terms of an order under this section and, if certification has been revoked or suspended, and upon consultation with the board, may order reinstatement on terms and conditions it deems proper.

Sec. 26.  26 V.S.A. § 1732 is amended to read:

§ 1732.  DEFINITIONS

As used in this chapter:

* * *

(3)  “Commission” means the state medical practice hearing commission established under section 1351 of this title.

(4)  "Physician" means an individual licensed to practice medicine pursuant to chapters 23 and 33 of this title.

(4)(5)  "Physician's assistant" means an individual certified by the state of Vermont who is qualified by education, training, experience, and personal character to provide medical services under the direction and supervision of a Vermont licensed physician.

(5)(6)  "Physician's assistant trainee" means a person who is not certified as a "physician's assistant" under this chapter but who assists a physician under the physician's direct supervision for the purpose of acquiring the basic knowledge and skills of a physician's assistant by the apprentice-preceptor mode of education.

(6)(7)  "Protocol" means a detailed description of the duties and scope of practice delegated by a physician to a physician's assistant.

(7)(8)  "Supervision" means the direction and review by the supervising physician, as determined to be appropriate by the board, of the medical services provided by the physician's assistant.

(8)(9)  "Disciplinary action" means any action taken against a certified physician's assistant, a registered physician's assistant trainee, or an applicant by the board or commission, the appellate officer, or on appeal therefrom, when that action suspends, revokes, limits, or conditions certification or registration in any way, and includes reprimands.

Sec. 27.  26 V.S.A. § 1736 is amended to read:

§ 1736.  UNPROFESSIONAL CONDUCT

(a)  The following conduct by a certified physician's assistant or registered physician's assistant trainee constitutes unprofessional conduct.  When that conduct is by an applicant or person who later becomes an applicant, it may constitute grounds for denial of certification or registration:

* * *

(4)  failing to comply with provisions of federal or state statutes or rules governing the profession, failing to comply with an order of the commission, violating a term or condition of a license which is restricted or conditioned by the board or commission, or failing to respond or cooperate in an investigation conducted by the board;

* * *

(c)  A person aggrieved by a determination of the board commission 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 commission.

Sec. 28.  26 V.S.A. § 1737 is amended to read:

§ 1737.  DISPOSITION OF COMPLAINTS

(a)  Complaints and allegations of unprofessional conduct shall be processed in a manner consistent with chapter 23 of this title and in accordance with the rules of procedure of the board of medical practice and the commission.

(b)  The board shall accept complaints from any member of the public, any physician, and any physician's assistant, any state or federal agency or the attorney general.  The board may initiate disciplinary action in any complaint against a physician's assistant and may act without having received a complaint.

(c)  After giving opportunity for hearing, the board commission shall take disciplinary action against a physician's assistant, physician's assistant trainee, or applicant found guilty of unprofessional conduct.

(d)(c)  The board commission may approve a negotiated agreement between the parties when it is in the best interest of the public health, safety or welfare to do so. Such an agreement may include, without limitation, any of the following conditions or restrictions which may be in addition to, or in lieu of, suspension:

* * *

(e)(d)  Upon application, the board commission may modify the terms of an order under this section and, if certification or registration has been revoked or suspended, and upon consultation with the board, may order reinstatement on terms and conditions it deems proper.

Sec. 29.  26 V.S.A. § 1739a is amended to read:

§ 1739a.  INAPPROPRIATE USE OF SERVICES BY PHYSICIAN;

                 UNPROFESSIONAL CONDUCT

Use of the services of a physician's assistant or a physician's assistant trainee by a physician in a manner which is inconsistent with the provisions of this chapter constitutes unprofessional conduct by the physician and such physician shall be subject to disciplinary action by the board in accordance with the provisions of chapter 23 or 33 of this title, as appropriate.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us