32-3553. Disciplinary action; duty to report; immunity; proceedings; board action; confidentiality

A. The board on its own motion may investigate any evidence that relates to a licensee and that appears to show the existence of any of the causes for disciplinary action prescribed in section 32-3552 or that a licensed respiratory care practitioner is or may be professionally incompetent or is or may be mentally or physically unable to engage safely in the practice of respiratory care. A licensed respiratory care practitioner or a health care institution as defined in section 36-401 shall, and any other person may, report to the board information the licensed respiratory practitioner, health care institution or individual may have that appears to show the existence of any of the causes for disciplinary action prescribed in section 32-3552 or that a licensed respiratory care practitioner is or may be professionally incompetent or is or may be mentally or physically unable to engage safely in the practice of respiratory care.

B. A licensed respiratory care practitioner, a health care institution or any other person that reports or provides information to the board in good faith is not subject to an action for civil damages as a result of reporting the information, and on request the name of the reporter shall not be disclosed unless the information is essential to proceedings conducted pursuant to this section. The board shall report a health care institution that fails to report as required by this section to the institution's licensing agency.

C. Within ninety days of receipt of information, the board shall notify the licensed respiratory care practitioner about whom information has been received as to the content of the information. Within twenty days after notification, the licensed respiratory care practitioner shall submit to the board an answer to the allegation contained in the initial complaint notification.

D. A health care institution shall inform the board if a licensed respiratory care practitioner is terminated due to a cause listed in section 32-3552, along with a general statement of the reasons that led the health care institution to take the action.

E. If the board finds, based on the information it receives pursuant to this section, that the public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, the board may order a summary suspension of a license pending proceedings for revocation or other action. If an order of summary suspension is issued, the licensee shall also be served with a written notice of complaint and formal hearing pursuant to title 41, chapter 6, article 10 setting forth the charges made against the licensee and is entitled to a formal hearing before the board on the charges within sixty days.

F. On determination of reasonable cause, the board or, if delegated by the board, the executive director may require a licensee or applicant to undergo at the expense of the licensee or applicant any combination of mental, physical or psychological examinations, assessments or skills evaluations necessary to determine the person's competence or ability to practice safely. These examinations may include bodily fluid testing and other examinations known to detect the presence of alcohol or drugs. If the executive director orders the licensee or applicant to undertake an examination, assessment or evaluation pursuant to this subsection and the licensee or applicant fails to affirm to the board in writing within fifteen days after receipt of the notice of the order that the licensee or applicant intends to comply with the order, the executive director shall refer the matter to the board to allow the board to determine whether to issue an order pursuant to this subsection. At each regular meeting of the board, the executive director shall report to the board data concerning orders issued by the executive director pursuant to this subsection since the last regular meeting of the board and any other data requested by the board.

G. If, after completing its investigation, the board finds that the information provided pursuant to this section is not of sufficient seriousness to merit direct action against the license of the licensed respiratory care practitioner, it may take any of the following actions:

1. Dismiss the complaint if the board believes that the information is without merit.

2. File a letter of concern if the board believes that while there is insufficient evidence to support direct action against the license of the licensed respiratory care practitioner there is sufficient evidence for the board to notify the licensee that continuing the activities that led to the information being submitted to the board may result in action against the license.

3. 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.

H. If after completing the investigation the board believes that the information provided pursuant to this section is or may be true, the board may request an interview with the licensee. If the licensee refuses this request or is interviewed and the results indicate that suspension or revocation of the license might be in order, the board shall issue a formal complaint and hold a formal hearing pursuant to title 41, chapter 6, article 10. If, after completing the informal interview, the board finds that the information provided pursuant to this section is not of sufficient seriousness to merit suspension or revocation of the license, the board may either dismiss the complaint if the board believes the complaint is without merit or take any combination of the following actions:

1. File a letter of concern if the board believes that while there is insufficient evidence to support direct action against the license there is sufficient evidence for the board to notify the licensee that continuation of the activities that led to the information being submitted to the board may result in action against that person's license.

2. Issue a decree of censure, which constitutes an official action against the respiratory care practitioner's license.

3. Fix a period and terms of probation best adapted to protect the public health and safety and rehabilitate or educate the licensed respiratory care practitioner concerned.

4. Restrict the licensee's practice to specific settings in a manner the board determines best protects the public health and safety.

5. Issue a civil penalty of up to five hundred dollars per violation.

6. 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.

I. Failure to comply with probation is cause for initiation of a formal proceeding for suspension or revocation of a license pursuant to this section based on the information considered by the board at the informal interview and any other acts or conduct alleged to be in violation of this chapter or rules adopted pursuant to this chapter.

J. If the board finds that the information provided pursuant to this section warrants suspension or revocation of a license issued under this chapter, the board shall immediately initiate formal proceedings for the revocation or suspension of the license as provided in title 41, chapter 6, article 10. If notice of the hearing is served by certified mail, service is complete on the date the notice is placed in the mail. At the conclusion of that hearing the board may dismiss the complaint or revoke or suspend the license and may take any combination of actions listed in subsection H of this section.

K. A licensee shall respond in writing to the board within thirty days after notice of the hearing is served as prescribed in subsection J of this section. The board may consider a licensee's failure to respond within this time as an admission by default to the allegations stated in the complaint. The board may then take any disciplinary action allowed by this chapter without conducting a hearing.

L. In connection with the board investigation the board or its duly authorized agents or employees at all reasonable times may examine and copy any documents, reports, records or other physical evidence of any person being investigated, or the reports, the records and any of the documents maintained by and in the possession of any hospital, clinic, physician's office, or other public or private agency, and any health care institution as defined in section 36-401, that relate to the person's professional competence, unprofessional conduct or mental or physical ability to safely practice respiratory care. These requests shall be made in writing.

M. Patient records, hospital records, medical staff records, medical staff review committee records, clinical records, medical reports, laboratory statements and reports, any file, film, other report or oral statement relating to the care of patients, any information from which a patient or a patient's family may be identified or information received or reports kept by the board as a result of the investigation procedure prescribed in this chapter and testimony concerning these records and proceedings relating to their creation are not available to the public, shall be kept confidential by the board and are subject to the same provisions concerning discovery and use and legal actions as are the original records in the possession and control of the hospital, the health care institutions or health care providers or other individual, practitioner or agency from which they are secured. The board shall use the records and testimony during the course of investigations and proceedings pursuant to this chapter.