Bill Text: HI HB2430 | 2016 | Regular Session | Introduced

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Bill Title: Licensing; Applicants for Licensure; Competency; Discipline; Summary Suspension; Hearing; Board of Dental Examiners; Hawaii Medical Board; Board of Nursing; Board of Pharmacy

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2016-02-03 - This measure has been deleted from the meeting scheduled on Friday 02-05-16 9:15AM in conference room 329. [HB2430 Detail]

Download: Hawaii-2016-HB2430-Introduced.html

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HOUSE OF REPRESENTATIVES	H.B. NO.	2430
TWENTY-EIGHTH LEGISLATURE, 2016
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to licensing.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  The legislature finds that a recent Honolulu Star-Advertiser investigation found dozens of examples of physicians who were disciplined in other states and either received new Hawaii licenses or kept their existing medical licenses for long periods without receiving reciprocal sanctions in Hawaii.  The investigation found that after other states imposed sanctions on physicians who were also licensed in Hawaii, Hawaii regulators often took more than two years to issue reciprocal discipline.  Furthermore, Hawaii consumers often would not learn that a Hawaii-licensed physician faced sanctions in another state until reciprocal discipline was issued in Hawaii.  In other situations, when other states declared emergencies to justify immediately pulling a license, Hawaii failed to take immediate action also.  The most egregious cases uncovered during the investigation involved physicians who lost the ability to practice in other states, either because of serious misconduct or to settle misconduct charges, but were able to maintain their Hawaii licenses for months or even years after that.

     The legislature further finds that timely action in reciprocal discipline cases is a vital aspect of consumer protection.  Furthermore, delayed action in reciprocal discipline cases, particularly in emergency situations, can put patients unnecessarily at risk.  The legislature additionally finds that ensuring timely reciprocal discipline of physicians and other health care professionals, including osteopathic physicians, physician assistants, nurses, dentists, and pharmacists, is necessary to protect the public.

     Accordingly, the purpose of this Act is to:

     (1)  Require dentist, physician, osteopathic physician, physician assistant, nurse, and pharmacist licensee applicants who have had a license, permit, or ability to practice suspended in another jurisdiction to undergo a hearing and investigation to determine competency prior to being issued a license to practice in Hawaii;

     (2)  Require the board of dental examiners, Hawaii medical board, board of nursing, and board of pharmacy to summarily suspend a Hawaii license upon a determination that a licensee has had a license, registration, or ability to practice suspended or revoked in any other jurisdiction, pending a hearing to prove competency; and

     (3)  Ensure consumer protection by requiring an order of summary suspension or any disciplinary action taken to be public record.

     SECTION 2.  Section 448-16.5, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§448-16.5[]]  Board of dental examiners; summary suspension.  (a)  The board of dental examiners [may] shall summarily suspend any license issued under this chapter upon a specific determination that the failure to take such an action may result in an immediate and unreasonable threat to personal safety or of fraud that jeopardizes or endangers the health or safety of patients as determined by the professional standards of care upon consumers, and that, for the protection of the public from the possible consequences of such practices, the license should be immediately suspended or restricted.

     (b)  The board shall summarily suspend any license issued under this chapter upon a determination that the licensee has had a license, registration, or the ability to practice dentistry suspended or revoked in any other jurisdiction.

     [(b)] (c)  The order of summary suspension shall include a brief statement of findings of fact and conclusions of law and shall be served upon the licensee as required by chapter 91.  The order of summary suspension shall be effective upon service.

     [(c)] (d)  A licensee served with an order of summary suspension shall have the right to request a hearing to show cause why the order of summary suspension should be terminated.  Any request for a hearing shall be made in writing and filed with the board of dental examiners within five business days of service of the order.  The board shall hold a hearing within seven business days of receipt of the licensee's request for the hearing to show cause.

     [(d)] (e)  Notwithstanding any law to the contrary, an order summarily suspending a license issued under this chapter shall remain in effect until the effective date of a final decision and order issued by the board of dental examiners in a disciplinary action or the effective date of an order issued by the board of dental examiners terminating the summary suspension following a hearing to show cause, whichever occurs first, but in either case shall not exceed thirty business days[.]; provided that for a licensee served with an order of summary suspension under subsection (b), the order summarily suspending the license shall remain in effect until the effective date of a final decision and order issued by the board terminating the summary suspension following a hearing to show cause, but shall not in any case exceed ninety business days.

     [(e)] (f)  The board of dental examiners shall conduct a hearing for disciplinary action against a licensee whose license has been summarily suspended under this section within twenty business days from the effective date of the order of summary suspension.

     (g)  Notwithstanding any law to the contrary, an order of summary suspension or any disciplinary action taken pursuant to this section shall be a matter of public record.

     [(f)] (h)  Any attempt by the licensee to continue the practice of dentistry or the practice of dentistry by the licensee while the license has been summarily suspended shall be grounds for revocation of the license."

     SECTION 3.  Section 448-17, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  The board shall refuse to issue a license to any applicant who fails to meet all of the requirements imposed by this chapter and may refuse to issue a license to any applicant who has previously committed any act that would, if committed by a licensee, result in the revocation or suspension of the license[.]; provided that if the disciplinary action against an applicant in any jurisdiction resulted in the suspension or revocation of a license, certificate, or ability to practice dentistry by the applicant in that jurisdiction, and would constitute a violation of the requirements under this chapter, the board shall refuse to grant a license until the applicant has undergone a hearing, in accordance with this chapter and chapter 91, to show cause why the suspension or revocation should be terminated.  Notwithstanding any law to the contrary, any disciplinary action taken pursuant to this subsection shall be a matter of public record."

     SECTION 4.  Section 453-8, Hawaii Revised Statutes, is amended to read as follows:

     "§453-8  Revocation, limitation, suspension, or denial of licenses.  (a)  In addition to any other actions authorized by law, any license to practice medicine and surgery may be revoked, limited, or suspended by the board at any time in a proceeding before the board, or may be denied, for any cause authorized by law, including but not limited to the following:

     (1)  Procuring, or aiding or abetting in procuring, a criminal abortion;

     (2)  Employing any person to solicit patients for one's self;

     (3)  Engaging in false, fraudulent, or deceptive advertising, including but not limited to:

         (A)  Making excessive claims of expertise in one or more medical specialty fields;

         (B)  Assuring a permanent cure for an incurable disease; or

         (C)  Making any untruthful and improbable statement in advertising one's medical or surgical practice or business;

     (4)  Being habituated to the excessive use of drugs or alcohol; or being addicted to, dependent on, or a habitual user of a narcotic, barbiturate, amphetamine, hallucinogen, or other drug having similar effects;

     (5)  Practicing medicine while the ability to practice is impaired by alcohol, drugs, physical disability, or mental instability;

     (6)  Procuring a license through fraud, misrepresentation, or deceit, or knowingly permitting an unlicensed person to perform activities requiring a license;

     (7)  Professional misconduct, hazardous negligence causing bodily injury to another, or manifest incapacity in the practice of medicine or surgery;

     (8)  Incompetence or multiple instances of negligence, including but not limited to the consistent use of medical service, which is inappropriate or unnecessary;

     (9)  Conduct or practice contrary to recognized standards of ethics of the medical profession as adopted by the Hawaii Medical Association, the American Medical Association, the Hawaii Association of Osteopathic Physicians and Surgeons, or the American Osteopathic Association;

    (10)  Violation of the conditions or limitations upon which a limited or temporary license is issued;

    (11)  Revocation, suspension, or other disciplinary action by another state or federal agency of a license, certificate, or medical privilege for reasons as provided in this section;

    (12)  Conviction, whether by nolo contendere or otherwise, of a penal offense substantially related to the qualifications, functions, or duties of a physician or osteopathic physician, notwithstanding any statutory provision to the contrary;

    (13)  Violation of chapter 329, the uniform controlled substances act, or any rule adopted thereunder except as provided in section 329-122;

    (14)  Failure to report to the board, in writing, any disciplinary decision issued against the licensee or the applicant in another jurisdiction within thirty days after the disciplinary decision is issued; or

    (15)  Submitting to or filing with the board any notice, statement, or other document required under this chapter, which is false or untrue or contains any material misstatement or omission of fact.

     (b)  If disciplinary action related to the practice of medicine has been taken against the applicant in any jurisdiction that would constitute a violation under this section, or if the applicant reveals a physical or mental condition that would constitute a violation under this section, then the board may impose one or more of the following requirements as a condition for licensure:

     (1)  Physical and mental evaluation of the applicant by a licensed physician or osteopathic physician approved by the board;

     (2)  Probation, including conditions of probation as requiring observation of the licensee by an appropriate group or society of licensed physicians, osteopathic physicians, or surgeons;

     (3)  Limitation of the license by restricting the fields of practice in which the licensee may engage;

     (4)  Further education or training or proof of performance competency; and

     (5)  Limitation of the medical practice of the licensee in any reasonable manner to assure the safety and welfare of the consuming public.

     (c)  Notwithstanding any other law to the contrary, if the disciplinary action against an applicant in any jurisdiction resulted in the suspension or revocation of a license, certificate, or medical privilege of the applicant in that jurisdiction, and would constitute a violation under this section, the board shall refuse to grant a license until the applicant has undergone a hearing, in accordance with this chapter and chapter 91, to show cause why the suspension or revocation should be terminated.  Notwithstanding any law to the contrary, any disciplinary action taken pursuant to this subsection shall be a matter of public record.

     [(c)] (d)  Where the board has reasonable cause to believe that a licensee is or may be unable to practice medicine with reasonable skill and safety to protect patients, the board may order the licensee to submit to a mental or physical examination or any combination thereof, by a licensed practitioner approved by the board, at the licensee's expense.  The examination may include biological fluid testing and other testing known to detect the presence of alcohol or other drugs.  In addition:

     (1)  Any licensee shall be deemed to have consented to submit to a mental or physical examination when so directed by the board and to have waived all objection to the use or referral of information by the board to determine whether the licensee is able to practice medicine with reasonable skill and safety to protect patients;

     (2)  The board may seek to enforce an order directing a licensee to submit to a mental or physical examination in the circuit court in the county in which the licensee resides;

     (3)  Failure of a licensee to submit to an examination ordered under this subsection shall constitute grounds for summary suspension of the licensee's license; and

     (4)  The board may take any action authorized under this chapter based on information obtained under this subsection.

     [(d)] (e)  Any person licensed by the board, including a physician, surgeon, or physician assistant, who provides information to the board indicating that a board licensee may be guilty of unprofessional conduct or may be impaired because of drug or alcohol abuse or mental illness shall not be liable for any damages in any civil action based on the communication.  The immunity afforded by this section shall be in addition to any immunity afforded by section 663-1.7, if applicable, and shall not be construed to affect the availability of any absolute privilege under sections 663-1.7 and 671D-10."

     SECTION 5.  Section 453-8.4, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§453-8.4[]]  Summary suspension.  (a)  The board [may] shall summarily suspend any license issued under this chapter upon a specific determination that the failure to take such an action may result in an immediate and unreasonable threat to personal safety or of fraud that jeopardizes or endangers the health or safety of patients as determined by the professional standards of care upon consumers, and that, for the protection of the public from the possible consequences of such practices, the license should be immediately suspended or restricted.

     (b)  The board shall summarily suspend any license issued under this chapter upon a determination that the licensee has had a license, registration, or medical privilege suspended or revoked in any other jurisdiction.

     [(b)] (c)  The order of summary suspension shall include a brief statement of findings of fact and conclusions of law and shall be served upon the licensee as required by chapter 91.  The order of summary suspension shall be effective upon service.

     [(c)] (d)  A licensee served with an order of summary suspension shall have the right to request a hearing to show cause why the order of summary suspension should be terminated.  Any request for a hearing shall be made in writing and filed with the board within five business days of service of the order.  The board shall hold a hearing within seven business days of receipt of the licensee's request for the hearing to show cause.

     [(d)] (e)  Notwithstanding any law to the contrary, an order summarily suspending a license issued under this chapter shall remain in effect until the effective date of a final decision and order issued by the board in a disciplinary action or the effective date of an order issued by the board terminating the summary suspension following a hearing to show cause, whichever occurs first, but in either case shall not exceed thirty business days[.]; provided that for a licensee served with an order of summary suspension under subsection (b), the order summarily suspending the license shall remain in effect until the effective date of a final decision and order issued by the board terminating the summary suspension following a hearing to show cause, but shall not in any case exceed ninety business days.

     [(e)] (f)  The board shall conduct a hearing for disciplinary action against a licensee whose license has been summarily suspended under this section within twenty business days from the effective date of the order of summary suspension.

     (g)  Notwithstanding any law to the contrary, an order of summary suspension or any disciplinary action taken pursuant to this section shall be a matter of public record.

     [(f)] (h)  Any attempt by the licensee to continue the practice of medicine or the practice of medicine by the licensee while the license has been summarily suspended shall be grounds for revocation of the license and shall subject the licensee to any penalties prescribed under this chapter, the applicable licensing laws, or any rule or order of the board."

     SECTION 6.  Section 457-12, Hawaii Revised Statutes, is amended to read as follows:

     "§457-12  Discipline; grounds; proceedings; hearings.  (a)  In addition to any other actions authorized by law, the board shall have the power to deny, revoke, limit, or suspend any license to practice nursing as a registered nurse or as a licensed practical nurse applied for or issued by the board in accordance with this chapter, and to fine or to otherwise discipline a licensee for any cause authorized by law, including but not limited to the following:

     (1)  Fraud or deceit in procuring or attempting to procure a license to practice nursing as a registered nurse or as a licensed practical nurse;

     (2)  Gross immorality;

     (3)  Unfitness or incompetence by reason of negligence, habits, or other causes;

     (4)  Habitual intemperance, addiction to, or dependency on alcohol or other habit-forming substances;

     (5)  Mental incompetence;

     (6)  Unprofessional conduct as defined by the board in accordance with its own rules;

     (7)  Wilful or repeated violation of any of the provisions of this chapter or any rule adopted by the board;

     (8)  Revocation, suspension, limitation, or other disciplinary action by another state of a nursing license for reasons as provided in this section;

     (9)  Conviction, whether by nolo contendere or otherwise, of a penal offense substantially related to the qualifications, functions, or duties of a nurse, notwithstanding any statutory provision to the contrary;

    (10)  Failure to report to the board any disciplinary action taken against the licensee in another jurisdiction within thirty days after the disciplinary action becomes final;

    (11)  Submitting to or filing with the board any notice, statement, or other document required under this chapter, which is false or untrue or contains any material misstatement of fact, including a false attestation of compliance with continuing competency requirements; or

    (12)  Violation of the conditions or limitations upon which any license is issued.

     (b)  Notwithstanding any other law to the contrary, if the disciplinary action against an applicant in any other jurisdiction resulted in the suspension or revocation of a license, certificate, or ability to practice nursing of the applicant in that jurisdiction, and would constitute a violation under this section, the board shall refuse to grant a license until the applicant has undergone a hearing, in accordance with this chapter and chapter 91, to show cause why the suspension or revocation should be terminated.

     (c)  The board shall order the summary suspension of a license issued under this chapter upon a determination that a licensee has had a license, certificate, or the ability to practice nursing suspended or revoked in any other jurisdiction; provided that the summary suspension shall be delegated in accordance with this section and section 436B-23; provided further that:

     (1)  The order summarily suspending the license shall remain in effect until the effective date of a final decision and order issued by the board terminating the summary suspension following a hearing to show cause, but shall not in any case exceed ninety business days;

     (2)  Within twenty business days from the effective date of the order of summary suspension, the board shall conduct a hearing to show cause why the summary suspension of a license pursuant to this subsection should be terminated; and

     (3)  Notwithstanding any law to the contrary, an order of summary suspension or any disciplinary action taken pursuant to this subsection or subsection (b) shall be a matter of public record.

     [(b)] (d)  Any fine imposed by the board after a hearing in accordance with chapter 91 shall be no less than $100 and no more than $1,000 for each violation.

     [(c)] (e)  The remedies or penalties provided by this chapter are cumulative to each other and to the remedies or penalties available under all other laws of this State."

     SECTION 7.  Section 461-4.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  In addition to any other powers and duties authorized by law, the board:

     (1)  Shall adopt, amend, and repeal rules pursuant to chapter 91, as it deems proper for the purposes of this chapter, Public Law 100-293, and 21 Code of Federal Regulations part 205;

     (2)  Shall examine, license, reinstate, and renew the licenses of qualified applicants for registered pharmacists and wholesale prescription drug distributors, and issue and renew permits to operate pharmacies;

     (3)  May require the inspection of any wholesale prescription drug distributor premises in the State to ensure compliance with this chapter and rules adopted under this chapter, or may require an applicant for a pharmacy license to submit a statement that the premises, including but not limited to security and sanitation, are in conformance with the board's requirements and that the applicant possesses the reference materials and technical clinical equipment and supplies as may be specified in rules adopted under this chapter; and

     (4)  May fine, suspend, or revoke any license or permit for any cause prescribed by this chapter, or for any violation of the rules adopted under this chapter, and refuse to grant or renew any license or permit for any cause which would be ground for revocation or suspension of a license or permit[.];

     (5)  Shall order the summary suspension of a license issued under this chapter upon a determination that a licensee has had a license, certificate, or ability to practice pharmacy suspended or revoked in any other jurisdiction; provided that the summary suspension shall be delegated in accordance with this section and section 436B-23; provided further that:

         (A)  The order summarily suspending the license shall remain in effect until the effective date of a final decision and order issued by the board terminating the summary suspension following a hearing to show cause, but shall not in any case exceed ninety business days;

         (B)  Within twenty business days from the effective date of the order of summary suspension, the board shall conduct a hearing to show cause why the summary suspension of a license pursuant to this subsection should be terminated; and

         (C)  Notwithstanding any law to the contrary, an order of summary suspension or any disciplinary action taken pursuant to this paragraph shall be a matter of public record."

     SECTION 8.  Section 461-5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  Any applicant for a license as a pharmacist shall submit an application on a form prescribed by the board and shall provide evidence to the board that the applicant:

     (1)  Is at least eighteen years of age;

     (2)  Holds a degree from a school or college of pharmacy or department in a university which is recognized and accredited by the American Council of Pharmaceutical Education;

     (3)  Has a minimum of fifteen hundred hours of practical experience in any state or territory of the United States, or the District of Columbia, under the supervision of a pharmacist who is duly registered or licensed in the state, territory, or district where the experience is obtained.  Service and experience under the supervision of a registered pharmacist as required in this section shall be predominantly related to the practice of pharmacy as defined under section 461-1.  In the event an applicant has no practical experience as required, the applicant may take the examination and upon passing the examination, shall not receive a license until after the applicant fulfills the practical experience requirement;

     (4)  Has passed an examination as may be prescribed by the board; and

     (5)  Does not have an encumbered license or a pending disciplinary action or unresolved complaint in the practice of pharmacy in any state or territory of the United States, or the District of Columbia, or if any license has been or is encumbered, the applicant shall provide all information requested by the board[.]; provided that if the disciplinary action against an applicant in any jurisdiction resulted in the suspension or revocation of a license, certificate, or ability to practice pharmacy by the applicant in that jurisdiction, and would constitute a violation of the qualifications and requirements under this chapter, the board shall refuse to grant a license until the applicant has undergone a hearing, in accordance with chapter 91, to show cause why the license should be granted; provided further that notwithstanding any law to the contrary, any disciplinary action taken pursuant to this paragraph shall be a matter of public record."

     SECTION 9.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 10.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

Licensing; Applicants for Licensure; Competency; Discipline; Summary Suspension; Hearing; Board of Dental Examiners; Hawaii Medical Board; Board of Nursing; Board of Pharmacy

 

Description:

Requires dentist, physician, osteopathic physician, physician assistant, nurse, and pharmacist licensee applicants who have had a license, permit, or ability to practice suspended in another jurisdiction to undergo a hearing to show cause why suspension should be terminated prior to being issued a license to practice in Hawaii.  Requires the board of dental examiners, Hawaii medical board, board of nursing, and board of pharmacy to summarily suspend a Hawaii license upon a determination that a licensee has had a license, registration, or ability to practice suspended or revoked in any other jurisdiction, pending a hearing to show cause.  Requires orders of summary suspension or disciplinary action taken due to actions arising in other jurisdictions to be public record.

 

 

 

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