32-1744

32-1744. Board investigations; duty to report
violations; hearing; decision of board; informal settlement
conference

A. The board on its own motion shall investigate any evidence that appears to show
that a licensee may be guilty of a violation of section 32-1743. Any person may report
to the board information the person may have that appears to show that a licensee may be
guilty of unprofessional conduct or of practice without regard for the safety and welfare
of the public. A person who reports or provides information to the board in good faith is
not subject to civil damages as a result, and the name of the person reporting shall not
be disclosed unless the information is necessary to conduct an investigation or is
essential to disciplinary proceedings conducted pursuant to this section.

B. The board, its designee or the executive director shall require a licensee to
provide a written response to a complaint within twenty days after the licensee receives
the notification of complaint.

C. Except as provided in subsection E of this section, if in the opinion of the
board it appears that information provided under subsection A of this section may be
accurate and a violation of this chapter, the board shall request an informal interview
with the licensee before proceeding to a formal hearing. If the licensee refuses an
invitation for an informal interview, or if the licensee accepts the invitation and if
the results of the interview indicate suspension or revocation of license may be in
order, a complaint shall be issued and a formal hearing held pursuant to title 41,
chapter 6, article 10. If at the informal interview the board finds the information
provided under subsection A of this section is accurate but not of sufficient seriousness
to merit suspension exceeding thirty days or revocation of the license, it may take any
or all of the following actions:

1. Issue a decree of censure or written reprimand.

2. Fix a period and terms of probation best adapted to protect the public health
and safety and rehabilitate the licensee. Probation may include a requirement for a
refund of fees and charges to professional services clients resulting from services
performed in violation of this chapter or rules adopted pursuant to this chapter,
restriction of a license to practice or temporary suspension not to exceed thirty
days. Failure to comply with probation is cause for filing a complaint and holding a
formal hearing pursuant to title 41, chapter 6, article 10.

3. Impose a civil penalty of not more than one thousand dollars for each violation
of this chapter.

4. Issue a nondisciplinary order requiring the licensee to complete a prescribed
number of hours of continuing education in an area or areas prescribed by the board to
provide the licensee with the necessary understanding of current developments, skills,
procedures or treatment.

D. If the board determines that a reasonable basis exists to believe that a
violation of this chapter or rules adopted pursuant to this chapter has occurred and the
violation is not sufficiently serious to warrant disciplinary action, it may send a
letter of concern to the licensee. The letter of concern shall advise the licensee of the
possible violation and the board's decision not to initiate proceedings. If violations
occur after the board sends a letter of concern, the board may initiate proceedings on
all violations, including the violation that was the subject of the letter of concern.

E. If in the opinion of the board it appears that information provided under
subsection A of this section may be accurate, the board may issue a complaint and hold a
formal hearing pursuant to title 41, chapter 6, article 10 without first holding an
informal interview if the probable violation involves one or more of the following:

1. Gross negligence.

2. Fraud, forgery, unsworn falsification, false swearing or perjury.

3. Three or more repeated offenses.

4. Conviction of a felony.

5. Conviction of an offense involving moral turpitude.

6. Incompetence.

7. Failing to comply with a board order or consent agreement.

8. Wilfully and without legal justification failing to furnish in a timely manner
information necessary for the board to conduct an investigation under this chapter that
has been requested or subpoenaed by the board.

F. The board shall serve on the licensee a notice fully setting forth the conduct
or inability concerned and returnable at a hearing to be held before the board or an
administrative law judge in not less than thirty days, stating the time and place of the
hearing.

G. The board may require a mental and physical examination and make an
investigation, including, if necessary, the issuance of subpoenas, the appointment of
advisory committees, the employment of expert witnesses, the taking of depositions or
otherwise, as may be required fully to inform itself with respect to the complaint.

H. A person may file a motion with the board for an expedited hearing pursuant to
section 41-1092.05.

I. If the licensee wishes to be present at the hearing in person or by
representation, or both, the licensee shall file with the board an answer to the charges
in the complaint. The answer shall be in writing, verified under oath and filed within
twenty days after service of the summons and complaint.

J. At the hearing held in compliance with subsection F of this section, a licensee
may be present in person together with any counsel and witnesses the licensee chooses.

K. The board shall issue subpoenas for witnesses it may need and, at the
respondent's expense, for witnesses the respondent may request. All provisions of law
compelling a person under subpoena to testify are applicable to a hearing held pursuant
to this section.

L. The board shall serve every notice or decision under this article by any method
reasonably calculated to effect actual notice on the board and every other party to the
action to the party's last address of record with the board. Each party shall inform the
board of any change of address within five days after the change.

M. A licensee who, after a hearing, is found to be guilty by the board of a
violation of this chapter is subject to censure, probation or civil penalty as provided
in subsection C of this section, suspension of license or revocation of license, or any
combination of these, and for the period of time or permanently and under the conditions
the board deems appropriate for the protection of the public health and safety and just
in the circumstances. The board may charge the costs of formal hearings to the licensee
who is in violation of this chapter.

N. The board shall issue a written decision within twenty days after the hearing is
concluded. The written decision shall contain a concise explanation of the reasons
supporting the decision. The board shall serve a copy of the decision on the licensee.
On the licensee's request, the board shall also transmit to the licensee the record of
the hearing.

O. Except as provided in this subsection, all materials, documents and evidence
associated with a pending or resolved complaint or investigation are confidential and are
not public records. The following materials, documents and evidence are not confidential
and are public records if they are related to resolved complaints and comply with
subsection A of this section:

1. The complaint.

2. The response and any rebuttal statements submitted by the licensee.

3. Written or recorded board discussions of the complaint.

4. Written reports of an investigation of a complaint.

5. Disposition of the complaint, including any written comments of the board.

P. This section or any other law making communications between a licensee and the
licensee's patient a privileged communication does not apply to investigations or
proceedings conducted pursuant to this chapter. The board and its employees, agents and
representatives shall keep in confidence the names of any patients whose records are
reviewed during the course of investigations and proceedings pursuant to this chapter.

Q. Any action of the board shall be included in the minutes of the meeting at which
the action is taken, including any determination by the board not to proceed under this
section. The person reporting information to the board shall receive a copy of any final
decision.

R. Pursuant to sections 35-146 and 35-147, the board shall deposit civil penalties
collected pursuant to this chapter in the state general fund.

S. A licensee who is the subject of a disciplinary action may request an informal
settlement conference. The licensee must submit a request for an informal settlement
conference to the board in writing. The board shall hold an informal settlement
conference within fifteen days after it receives a request to do so from the licensee.
Only a person with the authority to act on behalf of the board may represent the board at
the informal settlement conference. The board representative shall notify the licensee in
writing that any written or oral statement made by the licensee at the informal
settlement conference, including statements for the purpose of settlement negotiations,
is inadmissible in any subsequent hearing. A licensee who participates in an informal
settlement conference waives the right to object to the participation of the board
representative in the final administrative decision.