Senate Study Bill 1018 - Introduced SENATE/HOUSE FILE _____ BY (PROPOSED BOARD OF MEDICINE BILL) A BILL FOR An Act relating to disciplinary procedures before the board of 1 medicine. 2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 3 TLSB 1224DP (4) 86 ec/nh

S.F. _____ H.F. _____ Section 1. Section 148.7, Code 2015, is amended to read as 1 follows: 2 148.7 Procedure for licensee discipline. 3 A proceeding for the revocation or suspension of a license 4 to practice medicine and surgery or osteopathic medicine and 5 surgery , or acupuncture or to discipline a person licensed 6 to practice medicine and surgery or osteopathic medicine and 7 surgery , or acupuncture shall be substantially in accord with 8 the following procedure and with section 272C.6, subsection 9 4, to the extent the provisions in that subsection are not 10 inconsistent with this section : 11 1. The board may, upon its own motion or upon receipt of 12 a complaint in writing , order an investigation. The board 13 may, upon its own motion, order a hearing. A written notice 14 of the time and place of the hearing together with a statement 15 of the charges shall be served upon the licensee at least ten 16 days before the hearing in the manner required for the service 17 of notice of the commencement of an ordinary action or by 18 restricted certified mail. 19 2. If the whereabouts of the licensee is unknown, service 20 may be had by publication as provided in the rules of civil 21 procedure upon filing the affidavit required by the rules. 22 In case the licensee fails to appear, either in person or 23 by counsel at the time and place designated in the notice, 24 the board shall proceed with the hearing as provided in this 25 section . 26 3. a. The hearing shall be before a member or members 27 designated by the board or before an administrative law 28 judge appointed by the board according to the requirements of 29 section 17A.11, subsection 1 . The presiding board member or 30 administrative law judge may issue subpoenas, administer oaths, 31 and take or cause depositions to be taken in connection with 32 the hearing. The presiding board member or administrative law 33 judge shall issue subpoenas at the request and on behalf of the 34 licensee. 35 -1- LSB 1224DP (4) 86 ec/nh 1/ 6

S.F. _____ H.F. _____ b. The administrative law judge shall be an attorney vested 1 with full authority of the board to schedule and conduct 2 hearings. The administrative law judge shall prepare and file 3 with the board the administrative law judge’s findings of 4 fact and conclusions of law, together with a complete written 5 transcript of all testimony and evidence introduced at the 6 hearing and all exhibits, pleas, motions, objections, and 7 rulings of the administrative law judge. 8 At the sole discretion of the board, a disciplinary hearing 9 shall be held before one of the following: 10 a. A quorum of the board. A quorum of the board shall 11 include not less than six members, at least half of whom are 12 board members, and the remaining alternate members appointed 13 pursuant to section 148.2A, with no more than half of the 14 quorum being public members or alternate members of the board. 15 b. A panel of not less than three board members, at least 16 two of whom are licensed in the profession. 17 c. A panel of not less than three specialists appointed 18 pursuant to section 272C.6, subsection 2. 19 d. An administrative law judge. The decision to assign 20 an administrative law judge shall be within the sole 21 discretion of the board. The board may only assign cases to 22 an administrative law judge to serve as the presiding officer 23 at hearing that involve allegations of one or more violations 24 of the laws or rules governing the practice of medicine which 25 do not involve a standard of medical care determination, 26 professional practice, medical ethics, sexual misconduct, or 27 impairment. The board may assign cases involving issues of 28 law and administrative violations including but not limited 29 to violations of a board order, violations of an initial 30 agreement or contract entered into with the Iowa physician 31 health committee, disciplinary action by another licensing 32 board or regulatory authority, and criminal convictions. The 33 board shall define by rule those cases which may be assigned 34 to an administrative law judge, and the process for using 35 -2- LSB 1224DP (4) 86 ec/nh 2/ 6

S.F. _____ H.F. _____ an administrative law judge as the presiding officer. The 1 administrative law judge shall be assigned by the division of 2 administrative hearings pursuant to section 10A.801, and shall 3 be vested with full authority of the board to schedule and 4 conduct hearings. 5 4. Disciplinary hearings held pursuant to section 272C.6, 6 subsection 1 , shall be heard by the board, or by a panel of 7 not less than six members, at least three of whom are board 8 members, and the remaining appointed pursuant to section 9 148.2A , with no more than three of the six being public 10 members. Notwithstanding chapters 17A and 21 , a disciplinary 11 hearing shall be open to the public at the discretion of the 12 licensee. 13 5. The presiding officer may issue subpoenas, administer 14 oaths, and take or cause depositions to be taken in connection 15 with the hearing. The presiding officer shall issue subpoenas 16 at the request and on behalf of the parties. If a person 17 refuses to obey a subpoena issued by the presiding officer or 18 to answer a proper question during the hearing, the presiding 19 officer may invoke the aid of the district court in requiring 20 the attendance and testimony of a person or the production 21 of papers. A failure to obey the order of the court may be 22 punished by the court as a civil contempt. 23 6. A record of the proceedings shall be kept. The licensee 24 shall have the opportunity to appear personally and by an 25 attorney, with the right to produce evidence on the licensee’s 26 own behalf, to examine and cross-examine witnesses, and to 27 examine documentary evidence produced against the licensee. 28 6. If a person refuses to obey a subpoena issued by the 29 presiding member or administrative law judge or to answer a 30 proper question during the hearing, the presiding member or 31 administrative law judge may invoke the aid of a court of 32 competent jurisdiction or judge of this court in requiring 33 the attendance and testimony of the person and the production 34 of papers. A failure to obey the order of the court may be 35 -3- LSB 1224DP (4) 86 ec/nh 3/ 6

S.F. _____ H.F. _____ punished by the court as a civil contempt may be punished. 1 7. Unless the hearing is held before a quorum of the entire 2 board, the presiding officer shall prepare and file with the 3 board the proposed findings of fact, conclusions of law, and 4 decision and order, with a complete written transcript of the 5 proceeding, together with all exhibits presented , shall be 6 considered by the entire board at the earliest practicable time 7 pleadings, motions, objections, and rulings within sixty days 8 of the date of the hearing absent compelling circumstances . 9 The licensee and the licensee’s attorney shall have the 10 opportunity to appear personally to present the licensee’s 11 position and arguments to the board. The board shall determine 12 the charge or charges upon the merits on the basis of the 13 evidence in the record before it. 14 8. The proposed findings of fact, conclusions of law, and 15 decision and order may be appealed to the full board by either 16 party by serving on the executive director, either in person or 17 by certified mail, a notice of appeal within thirty days after 18 service of the proposed findings of fact, conclusions of law, 19 and decision and order on the appealing party. 20 9. If a majority of the members of the board vote in favor 21 of finding the licensee guilty of an act or offense specified 22 in section 147.55 or 148.6 , the board shall prepare written 23 findings of fact and its decision , conclusions of law, and 24 a decision and order imposing one or more of the following 25 disciplinary measures: 26 a. Suspend the licensee’s license to practice the profession 27 for a period to be determined by the board. 28 b. Revoke the licensee’s license to practice the profession. 29 c. Suspend imposition of judgment and penalty or impose 30 the judgment and penalty, but suspend enforcement and place 31 the physician or licensed acupuncturist on probation. The 32 probation ordered may be vacated upon noncompliance. The board 33 may restore and reissue a license to practice medicine and 34 surgery or osteopathic medicine and surgery, or acupuncture, 35 -4- LSB 1224DP (4) 86 ec/nh 4/ 6

S.F. _____ H.F. _____ but may impose a disciplinary or corrective measure which the 1 board might originally have imposed. A copy of the board’s 2 order, findings of fact, conclusions of law, and decision and 3 order , shall be served on the licensee in the manner of service 4 of an original notice or by certified mail return receipt 5 requested. 6 9. 10. Judicial review of the board’s action may be 7 sought in accordance with the terms of the Iowa administrative 8 procedure Act, chapter 17A . 9 10. 11. The board’s order revoking or suspending a license 10 to practice medicine and surgery or osteopathic medicine 11 and surgery , or acupuncture, or to discipline a licensee 12 shall remain in force and effect until the appeal is finally 13 determined and disposed of upon its merit. 14 EXPLANATION 15 The inclusion of this explanation does not constitute agreement with 16 the explanation’s substance by the members of the general assembly. 17 This bill relates to disciplinary procedures before the 18 board of medicine. The bill rewrites the existing provisions 19 to provide additional detail. The bill specifies that the 20 procedures for licensee discipline in Code section 148.7 apply 21 to persons licensed to practice acupuncture. 22 The bill specifies that a disciplinary hearing may be 23 presided over by any of the following, at the discretion 24 of the board: a quorum of the entire board; a panel of at 25 least three board members; a panel made up of specialists; 26 or an administrative law judge. The bill rewrites existing 27 provisions relating to the power of the presiding officer to 28 issue subpoenas and the enforcement of those subpoenas. 29 The bill allows an administrative law judge to preside 30 at certain contested cases, when those cases do not require 31 medical expertise or involve sexual misconduct or impairment. 32 The bill codifies in Code chapter 148 provisions that are 33 generally set out in Code chapter 17A relating to the decision 34 in a contested case. If a quorum of the entire board hears the 35 -5- LSB 1224DP (4) 86 ec/nh 5/ 6

S.F. _____ H.F. _____ case, the board decision is final agency action. If less than 1 a quorum or an administrative law judge hears the case, the 2 decision may be appealed to the entire board. 3 -6- LSB 1224DP (4) 86 ec/nh 6/ 6