Effective 28 Aug 2007

338.380. Refusal to issue a certificate, when — impaired license committee authorized, duties, procedures. — 1. As used in this section the term "committee" means the well-being committee established under subsection 3 of this section.

2. The board may refuse to issue any certificate of registration or authority, permit or license required under this chapter for one or any combination of causes stated in subsection 2 of section 338.055, or the board may, as a condition to issuing or renewing any such certificate of registration or authority, permit or license, require a person to submit himself or herself for identification, intervention, treatment, or rehabilitation by the well-being committee as provided in this section. The board shall notify the applicant in writing of the reasons for the refusal and shall advise the applicant of his or her right to file a complaint with the administrative hearing commission as provided by chapter 621.

3. The board may establish an impaired licensee committee, to be designated as the "Well-being Committee", to promote the early identification, intervention, treatment, and rehabilitation of licensees identified within this chapter, who may be impaired by reasons of illness, substance abuse, or as a result of any physical or mental condition. The board may enter into a contractual agreement for the purpose of creating, supporting and maintaining such a committee. The board may promulgate rules subject to the provisions of this section to effectuate and implement any committee formed under this section. The board may expend appropriated funds necessary to provide for operational expenses of the committee formed under this section. Any member of the committee, as well as any administrator, staff member, consultant, agent or employee of the committee, acting within the scope of his or her duties and without actual malice and all other persons who furnish information to the committee in good faith and without actual malice, shall not be liable for any claim of damages as a result of any statement, decision, opinion, investigation or action taken by the committee or by any individual member of the committee.

4. All information, interviews, reports, statements, memoranda or other documents furnished to or produced by the committee, as well as communications to or from the committee, any findings, conclusions, interventions, treatment, rehabilitation, or other proceedings of the committee which in any way pertain to a licensee who may be, or who actually is, impaired shall be absolutely privileged and confidential.

5. All records and proceedings of the committee which pertain or refer to a licensee who may be, or who actually is, impaired shall be privileged and confidential and shall be used by the committee and its members only in the exercise of the proper function of the committee and shall not be considered public records under chapter 610 and shall only be subject to discovery or introduction as evidence in any civil, criminal, or administrative proceedings except as provided in subsection 6 of this section.

6. The committee may disclose information relative to an impaired licensee only when:

(1) It is essential to disclose the information to further the intervention, treatment, or rehabilitation needs of the impaired licensee and only to those persons or organization with a need to know;

(2) Its release is authorized in writing by the impaired licensee;

(3) The committee is required to make a report to the board; or

(4) The information is subject to a court order.

7. In lieu of the pursuing discipline against a licensee for violating one or more causes stated in subsection 2 of section 338.055, the board may enter into a diversion agreement with a licensee to refer the licensee to the committee under such terms and conditions as are agreed to by the board and licensee. The board shall enter into no more than two diversion agreements with any individual licensee. If the licensee violates a term or condition of a diversion agreement entered into under this section, the board may elect to pursue discipline against the licensee under chapter 621 for the original conduct that resulted in the diversion agreement, or for any subsequent violation of subsection 2 of section 338.055. While the licensee participates in the committee, the time limitations of section 620.154 shall toll under subsection 7 of section 620.154. All records pertaining to diversion agreements are confidential and may only be released under subdivision (7) of subsection 14 of section 620.010.

8. The committee shall report to the board the name of any licensee who fails to enter treatment within forty-eight hours following the provider's determination that the pharmacist needs treatment or any failure by a licensee to comply with the terms of a diversion agreement during inpatient or outpatient treatment or aftercare or report a licensee who resumes the practice of pharmacy before the treatment provider has made a clear determination that the pharmacist is capable of practicing according to acceptable and prevailing standards.

9. The board may disclose information and records to the committee to assist the committee in the identification, intervention, treatment, and rehabilitation of any licensee who may be impaired by reason of illness, substance abuse, or as the result of any physical or mental condition. The committee shall keep all information and records provided by the board confidential to the extent the board is required to treat the information and records as closed to the public under chapter 620.

10. Any rule or portion of a rule, as that term is defined in section 536.010, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536 and, if applicable, section 536.028. This section and chapter 536 are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536 to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2007, shall be invalid and void.

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(L. 2007 S.B. 195)