32-1263.02. Investigation and adjudication of complaints; subpoena authority

A. The board on its motion may investigate any evidence that appears to show the existence of any of the causes or grounds for disciplinary action as provided in section 32-1263.

B. The board may investigate a complaint signed by the complainant that appears to show the existence of any of the causes or grounds for disciplinary action as provided in section 32-1263. At the request of the complainant, the board shall not disclose to the respondent the name of the complainant unless the information is essential to proceedings conducted pursuant to this article. Patient information pursuant to subsection I of this section shall not be disclosed unless that person's testimony is essential to the disciplinary proceedings conducted pursuant to this section. All investigative material, including dental records, is confidential and shall not be disclosed unless the information is essential to the disciplinary proceedings conducted pursuant to this section.

C. After a motion by the board or on receipt of a complaint signed by the complainant, as provided in subsections A and B of this section, the president of the board or the president's designee shall request either an informal interview with the licensee against whom the complaint was filed or motion to investigate was made or shall refer the complaint or motion to investigate to an investigator appointed by the board, who need not be a member of the board. The board may appoint more than one investigator. If the circumstances warrant an emergency suspension pursuant to section 41-1092.11, the board may dispense with the procedures required by this section. If the licensee against whom the complaint was filed or motion to investigate was made refuses to cooperate with the board or if the license has been summarily suspended pursuant to section 41-1092.11, the matter shall be immediately advanced to a formal board hearing as provided in title 41, chapter 6, article 10, at which time the evidence supporting the imposition of disciplinary actions shall be presented and formal board action shall be taken. If the licensee chooses to cooperate with the board, the procedures shall be as follows:

1. If a complaint signed by the complainant refers to quality of care, the patient may be referred for a clinical evaluation, the results of which may be used for deliberation in an informal interview, for an investigator's recommendation or for a formal hearing.

2. If an informal interview is requested, the president or the president's designee shall appoint a member of the board to act as the informal interviewing officer and the board shall notify the licensee in writing of the reasons for the interview and the date of the interview. The date of the interview shall not be less than twenty days after notification. Within ninety days of appointment the informal interviewing officer shall hold the interview and make a written recommendation to the board on whether disciplinary action is appropriate and, if it is appropriate, the type of disciplinary action that the board should take.

3. If the matter is referred to an investigator, the investigator shall begin to investigate the charges within ten days and shall exercise all the powers of the board in that investigation. Within ninety days of referral, unless good cause requires longer, the investigator shall make a written recommendation to the board on whether disciplinary action is appropriate and, if it is appropriate, the type of disciplinary action that the board should take.

4. In cases in which the informal interviewing officer or the investigator recommends sanctions, a copy of the reports shall be made available to the licensee.

5. The board may refer the matter to mediation if the complaint does not appear to include dental incompetence, malpractice or grounds that involve criminal allegations. A mediator shall not be involved in any further investigation of the complaint. The board shall review and approve all mediation.

D. Within sixty days after receipt of the written report of the informal interviewing officer or the investigator, the board shall issue preliminary findings based on the written report. The findings shall be made as follows:

1. If the board finds that the evidence would, if proved true, warrant suspension or revocation of a license issued under this chapter, formal proceedings for the revocation or suspension of the license shall be immediately initiated as provided in title 41, chapter 6, article 10.

2. If the board finds that the evidence does not warrant suspension or revocation of a license, the preliminary order shall either dismiss the complaint or order other disciplinary action pursuant to section 32-1263.01, subsection A.

E. A copy of a preliminary order shall be given to the complainant and to the licensee. Pursuant to title 41, chapter 6, article 10, the licensee or applicant for licensure may move for rehearing or review.

F. Any person who in good faith makes a report as provided in this section to the board or to any person or committee acting on behalf of the board is not subject to liability for civil damages as a result of the report.

G. The board, through its president or the president's designee, may issue subpoenas to compel the attendance of witnesses and the production of documents and may administer oaths, take testimony, hear proof and receive exhibits in evidence in connection with an investigation initiated by the board or a complaint filed with the board. In case of disobedience to a subpoena the board may invoke the aid of any court of this state in requiring the attendance and testimony of witnesses and the production of documentary evidence.

H. The person in charge of any disciplinary proceeding conducted pursuant to this section may require testimony to be given under oath. The person in charge of the proceeding shall administer the oath.

I. Patient records, including clinical records, medical reports, laboratory statements and reports, files, films, reports or oral statements relating to diagnostic findings or treatment of patients, any information from which a patient or a patient's family may be identified or information received and records kept by the board as a result of the investigation procedures taken pursuant to this chapter are not available to the public.

32-1263.02. Investigation and adjudication of complaints; subpoena authority

A. The board on its motion may investigate any evidence that appears to show the existence of any of the causes or grounds for disciplinary action as provided in section 32-1263.

B. The board may investigate a complaint signed by the complainant that appears to show the existence of any of the causes or grounds for disciplinary action as provided in section 32-1263. At the request of the complainant, the board shall not disclose to the respondent the name of the complainant unless the information is essential to proceedings conducted pursuant to this article. Patient information pursuant to subsection I of this section shall not be disclosed unless that person's testimony is essential to the disciplinary proceedings conducted pursuant to this section. All investigative material, including dental records, is confidential and shall not be disclosed unless the information is essential to the disciplinary proceedings conducted pursuant to this section.

C. After a motion by the board or on receipt of a complaint signed by the complainant, as provided in subsections A and B of this section, the president of the board or the president's designee shall request either an informal interview with the licensee against whom the complaint was filed or motion to investigate was made or shall refer the complaint or motion to investigate to an investigator appointed by the board, who need not be a member of the board. The board may appoint more than one investigator. If the circumstances warrant an emergency suspension pursuant to section 41-1092.11, the board may dispense with the procedures required by this section. If the licensee against whom the complaint was filed or motion to investigate was made refuses to cooperate with the board or if the license has been summarily suspended pursuant to section 41-1092.11, the matter shall be immediately advanced to a formal board hearing as provided in title 41, chapter 6, article 10, at which time the evidence supporting the imposition of disciplinary actions shall be presented and formal board action shall be taken. If the licensee chooses to cooperate with the board, the procedures shall be as follows:

1. If a complaint signed by the complainant refers to quality of care, the patient may be referred for a clinical evaluation, the results of which may be used for deliberation in an informal interview, for an investigator's recommendation or for a formal hearing.

2. If an informal interview is requested, the president or the president's designee shall appoint a member of the board to act as the informal interviewing officer and the board shall notify the licensee in writing of the reasons for the interview and the date of the interview. The date of the interview shall not be less than twenty days after notification. Within ninety days of appointment the informal interviewing officer shall hold the interview and make a written recommendation to the board on whether disciplinary action is appropriate and, if it is appropriate, the type of disciplinary action that the board should take.

3. If the matter is referred to an investigator, the investigator shall begin to investigate the charges within ten days and shall exercise all the powers of the board in that investigation. Within ninety days of referral, unless good cause requires longer, the investigator shall make a written recommendation to the board on whether disciplinary action is appropriate and, if it is appropriate, the type of disciplinary action that the board should take.

4. In cases in which the informal interviewing officer or the investigator recommends sanctions, a copy of the reports shall be made available to the licensee.

5. The board may refer the matter to mediation if the complaint does not appear to include dental incompetence, malpractice or grounds that involve criminal allegations. A mediator shall not be involved in any further investigation of the complaint. The board shall review and approve all mediation.

D. Within sixty days after receipt of the written report of the informal interviewing officer or the investigator, the board shall issue preliminary findings based on the written report. The findings shall be made as follows:

1. If the board finds that the evidence would, if proved true, warrant suspension or revocation of a license issued under this chapter, formal proceedings for the revocation or suspension of the license shall be immediately initiated as provided in title 41, chapter 6, article 10.

2. If the board finds that the evidence does not warrant suspension or revocation of a license, the preliminary order shall either dismiss the complaint or order other disciplinary action pursuant to section 32-1263.01, subsection A.

E. A copy of a preliminary order shall be given to the complainant and to the licensee. Pursuant to title 41, chapter 6, article 10, the licensee or applicant for licensure may move for rehearing or review.

F. Any person who in good faith makes a report as provided in this section to the board or to any person or committee acting on behalf of the board is not subject to liability for civil damages as a result of the report.

G. The board, through its president or the president's designee, may issue subpoenas to compel the attendance of witnesses and the production of documents and may administer oaths, take testimony, hear proof and receive exhibits in evidence in connection with an investigation initiated by the board or a complaint filed with the board. In case of disobedience to a subpoena the board may invoke the aid of any court of this state in requiring the attendance and testimony of witnesses and the production of documentary evidence.

H. The person in charge of any disciplinary proceeding conducted pursuant to this section may require testimony to be given under oath. The person in charge of the proceeding shall administer the oath.

I. Patient records, including clinical records, medical reports, laboratory statements and reports, files, films, reports or oral statements relating to diagnostic findings or treatment of patients, any information from which a patient or a patient's family may be identified or information received and records kept by the board as a result of the investigation procedures taken pursuant to this chapter are not available to the public.