32-4254. Investigative powers; emergency action; disciplinary proceedings; formal interview; hearing; civil penalty

A. The board on its own motion may investigate any evidence that appears to show that a licensee is or may be incompetent or is or may be subject to discipline under this chapter. On written request of a complainant, the board shall review a complaint and take any action it deems appropriate. The board or the executive director shall notify the licensee as to the content of the complaint as soon as reasonable. A licensee shall, and any other person may, report to the board any information the person may have that appears to show grounds for disciplinary action against a licensee. Any person or entity that reports or provides information to the board in good faith is not subject to an action for civil damages. If requested, the board shall not disclose the name of a person who supplies information regarding a licensee's drug or alcohol impairment. It is an act of unprofessional conduct for any licensee to fail to report as required by this section.

B. If the board finds, based on the information it receives under subsection A of this section, that the public health, safety or welfare requires emergency action and incorporates a finding to that effect in its order, the board may restrict, limit or order a summary suspension of a license pending proceedings for revocation or other action. If the board takes action pursuant to this subsection, it shall also serve the licensee with a written notice that states the charges and that the licensee is entitled to a formal hearing before the board or an administrative law judge within sixty days.

C. If, after completing its investigation, the board finds that the information provided pursuant to subsection A of this section is not of sufficient seriousness to merit disciplinary action against the license of the licensee, the board or a board committee may take any of the following nondisciplinary actions:

1. Dismiss if, in the opinion of the board, the information is without merit.

2. File an advisory letter. The licensee may file a written response with the board within thirty days after receiving the advisory letter.

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.

D. If the board finds that it can take rehabilitative or disciplinary action without the presence of the licensee at a formal interview, it may enter into a consent agreement with the licensee to limit or restrict the licensee's practice or to rehabilitate the licensee, protect the public and ensure the licensee's ability to safely engage in the practice of massage therapy. The board may also require the licensee to successfully complete a board approved rehabilitative, retraining, continuing education or assessment program.

E. If, after completing its investigation, the board believes that the information is or may be true, it may request a formal interview with the licensee. If the licensee refuses the invitation for a formal interview or accepts and the results indicate that grounds may exist for revocation or suspension of the licensee's license for more than twelve months, the board shall issue a formal complaint and order that a hearing be held pursuant to title 41, chapter 6, article 10. If, after completing a formal interview, the board finds that the protection of the public requires emergency action, it may order a summary suspension of the license pending formal revocation proceedings or other action authorized by this section.

F. If, after completing the formal interview, the board finds the information provided under subsection A of this section is not of sufficient seriousness to merit suspension for more than twelve months or revocation of the license, it may take one or more of the following actions:

1. Dismiss if, in the opinion of the board, the complaint is without merit.

2. File an advisory letter. The licensee may file a written response with the board within thirty days after the licensee receives the advisory letter.

3. File a letter of reprimand.

4. Issue a decree of censure. A decree of censure is an official action against the licensee's license.

5. Fix a period and terms of probation best adapted to protect the public health and safety and to rehabilitate or educate the licensee concerned. Probation may include temporary suspension not to exceed twelve months or restriction of the licensee's license to practice massage therapy. If a licensee fails to comply with the terms of probation, the board shall serve the licensee with a written notice that states that the licensee is subject to a formal hearing based on the information considered by the board at the formal interview and on any other acts or conduct alleged to be in violation of this chapter or rules adopted pursuant to this chapter, including noncompliance with the terms of probation, a consent agreement or a stipulated agreement.

6. Enter into an agreement with the licensee to restrict or limit the licensee's practice in order to rehabilitate, retrain or assess the licensee, protect the public and ensure the licensee's ability to safely engage in the practice of massage therapy.

7. Order the payment of restitution, including an order to repay fees paid by a massage therapy client and for the cost of the investigation.

8. 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.

G. If the board finds that the information provided in subsection A or E of this section warrants suspension or revocation of a license issued pursuant to this chapter, it shall initiate formal proceedings pursuant to title 41, chapter 6, article 10. If after a formal proceeding the board finds that a licensee has been convicted of prostitution, solicitation or another similar offense, the board shall revoke the license.

H. A licensee shall respond in writing to the board within thirty days after notice of the hearing is served. 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 pursuant to this chapter without conducting a hearing.

I. In a formal interview pursuant to subsection E of this section or in a hearing pursuant to subsection G of this section, the board in addition to any other action may impose a civil penalty of not more than ten thousand dollars for each violation of this chapter or a rule adopted pursuant to this chapter.

J. An advisory letter is a public document.

K. A licensee who after a formal hearing is found by the board to be subject to discipline pursuant to this chapter is subject to censure, probation or restitution as provided in this section, suspension or revocation of license or any combination of these, including a stay of action, for a period of time or permanently and under conditions the board deems appropriate for the protection of the public health and safety and just in the circumstance. The board may charge the costs of formal hearings to a licensee whom it finds to be in violation of this chapter.

L. If the board, during the course of any investigation, determines that a criminal violation involving the practice of massage therapy may have occurred, it shall make the evidence of a violation available to the appropriate criminal justice agency for its consideration.

M. The board shall deposit, pursuant to sections 35-146 and 35-147, all monies it collects from civil penalties paid pursuant to this section in the state general fund.

N. Notice of a complaint and hearing is effective by a true copy of it being sent by certified mail to the licensee's last known address of record in the board's files. Notice of the complaint and hearing is complete on the date of its deposit in the mail. The board shall begin a formal hearing within one hundred twenty days after that date.

O. The board may accept the surrender of a license from a person who admits in writing to any of the following:

1. Being unable to safely engage in the practice of massage therapy.

2. Having committed an act subject to discipline pursuant to this chapter.

3. Having violated this chapter or a board rule.

P. In determining the appropriate disciplinary action under this section, the board shall consider all previous nondisciplinary and disciplinary actions against a licensee.