HF 764 (LSB 1375HV (1) 89)

HOUSE FILE 764

BY  COMMITTEE ON HUMAN RESOURCES

(SUCCESSOR TO HSB 75)

A BILL FOR

An Act relating to disciplinary hearings conducted by professional licensing boards.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 272C.6, subsections 1, 3, 4, and 6, Code 2021, are amended to read as follows:
   1.  Disciplinary hearings held pursuant to this chapter shall be heard by the board sitting as the hearing panel, or by a panel of not less than three board members who are licensed in the profession, or by a panel of not less than three members appointed pursuant to subsection 2, or by an administrative law judge. Notwithstanding chapters 17A and 21, a disciplinary hearing shall be open or closed to the public at the discretion of the licensee.  If the licensee does not make an election, the hearing shall be open to the public.
   3.  a.  The presiding officer of a hearing panel may issue subpoenas pursuant to rules of the board on behalf of the board or on behalf of, the state, or the licensee. A licensee may have subpoenas issued on the licensee’s behalf.
   (1)  A subpoena issued under the authority of a licensing board may compel the attendance of witnesses and the production of professional records, books, papers, correspondence and other records, whether or not privileged or confidential under law, which are deemed necessary as evidence in connection with a disciplinary proceeding.
   (2)  Nothing in this subsection shall be deemed to enable a licensing board to compel an attorney of the licensee, or stenographer or confidential clerk of the attorney, to disclose any information when privileged against disclosure by section 622.10.
   (3)  In the event of a refusal to obey a subpoena, the licensing board may petition the district court for its enforcement. Upon proper showing, the district court shall order the person to obey the subpoena, and if the person fails to obey the order of the court the person may be found guilty of contempt of court.
   b.  The presiding officer of a hearing panel may also administer oaths and affirmations, take or order that depositions be taken, and pursuant to rules of the board, grant immunity to a witness from disciplinary proceedings initiated either by the board or by other state agencies which might otherwise result from the testimony to be given by the witness to the panel.
   4.  a.  In order to assure a free flow of information for accomplishing the purposes of this section, and notwithstanding section 622.10, all complaint files, investigation files, other investigation reports, and other investigative information in the possession of a licensing board or peer review committee acting under the authority of a licensing board or its employees or agents which relates to licensee discipline are privileged and confidential, and are not subject to discovery, subpoena, or other means of legal compulsion for their release to a person other than the licensee and the boards, their employees and agents involved in licensee discipline, and are not admissible in evidence in a judicial or administrative proceeding other than the proceeding involving licensee discipline. However, investigative disciplinary charges shall be public records and may contain investigative information to inform the licensee and the public of the allegations. After disciplinary charges have been filed, a board shall provide all investigative information pertaining to complaints upon which charges are based to the licensee upon request. A board may adopt rules pursuant to chapter 17A authorizing the release of investigative information to the licensee prior to disciplinary charges being filed to facilitate informal settlement of a complaint. In the absence of such rules, investigatory information shall be kept confidential, even from the licensee, until such time as the disciplinary charges have been filed. Investigative information in the possession of a licensing board or its employees or agents which relates to licensee discipline may be disclosed to appropriate licensing authorities within this state, the appropriate licensing authority authorities in another state, the coordinated licensure information system provided for in the nurse licensure compact contained in section 152E.1 or the advanced practice registered nurse compact contained in section 152E.3, the District of Columbia, or a territory or country in which the licensee is licensed or has applied for a license. If the investigative information in the possession of a licensing board or its employees or agents indicates a crime has been committed, the information shall may be reported to the proper law enforcement agency. However, a A final written decision and finding of fact of a licensing board in a disciplinary proceeding, including a decision referred to in section 272C.3, subsection 4, is a public record.
   b.  Pursuant to the provisions of section 17A.19, subsection 6, a licensing board upon an appeal by the licensee of the decision by the licensing board, shall transmit the entire record of the contested case to the reviewing court.
   c.  Notwithstanding the provisions of section 17A.19, subsection 6, if a waiver of privilege has been involuntary and evidence has been received at a disciplinary hearing, the court shall order withheld the identity of the individual whose privilege was waived.
   6.  a.  A board created pursuant to chapter 147, 154A, 155, 169, 542, 542B, 543B, 543D, 544A, or 544B may charge a fee not to exceed seventy-five dollars for conducting a disciplinary hearing pursuant to this chapter which results in disciplinary action taken against the licensee by the board, or for conducting a reinstatement hearing, and in addition to the fee, may recover from a licensee the costs for the following procedures and associated personnel:
   (1)  Transcript Court reporter fees and expenses and transcript costs.
   (2)  Witness fees and expenses.
   (3)  Depositions.
   (4)  Medical examination fees incurred relating to a person licensed under chapter 147, 154A, 155, or 169.
   (5)  Investigative costs.
   b.  The department of agriculture and land stewardship, the department of commerce, and the Iowa department of public health shall each adopt rules pursuant to chapter 17A which provide for the allocation of fees and costs collected pursuant to this section to the board under its jurisdiction collecting the fees and costs. The fees and costs shall be considered repayment receipts as defined in section 8.2.
   c.  The fees and costs may be recovered from a licensee as part of an order following a hearing or through an informal settlement. 
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to disciplinary hearings conducted by professional licensing boards, as defined in Code section 272C.1.
   The bill provides that disciplinary hearings may be heard by an administrative law judge, in addition to various panels of the board provided under current law. The bill provides that if a licensee subject to a hearing does not make an election as to whether the hearing shall be open or closed to the public, the hearing shall be open.
   The bill authorizes the presiding officer of a hearing panel to issue subpoenas on behalf of the state. The bill strikes duplicative language relating to subpoenas issued on behalf of licensees.
   Current law prohibits a board from compelling an attorney of a licensee to disclose certain privileged information. The bill provides that this prohibition applies to all attorneys, not only an attorney of a licensee. 
   The bill provides that disciplinary charges against a licensee shall be public records and may contain investigative information to inform the licensee and the public of the allegations. The bill requires a board to provide all investigative information pertaining to complaints upon which charges are based to the licensee upon request after disciplinary charges have been filed. The bill authorizes a board to adopt rules authorizing the release of investigative information to the licensee prior to disciplinary charges being filed to facilitate informal settlement of a complaint. In the absence of such rules, investigatory information shall be kept confidential, even from the licensee, until such time as the disciplinary charges have been filed.
   Current law requires a board to report to the proper law enforcement authority if investigative information in the possession of a licensing board or its employees or agents indicates a crime has been committed. The bill authorizes, but does not require, a board to make such a report. 
   The bill authorizes certain specified boards to charge a fee not to exceed $75 for conducting a reinstatement hearing. The bill authorizes such boards to recover costs from licensees for court reporter fees and expenses and investigative costs. The bill provides that fees for disciplinary hearings that result in disciplinary action and for reinstatement hearings, as well as costs recovered from licensees, collected by such boards may be recovered from a licensee as part of an order following a hearing or through an informal settlement. The bill strikes language authorizing the board of hearing aid specialists and the board of nursing home administrators to recover the cost of medical examination fees from licensees.