Ala. Admin. Code r. 540-X-5-.09

Current through Register Vol. 43, No. 1, October 31, 2024

Section 540-X-5-.09 - Conduct Of Investigations By The Board Of Medical Examiners

(1) The Board of Medical Examiners may on its own motion, or in response to any complaint submitted to the Board, investigate any evidence which appears to show that a physician or osteopath holding a certificate of qualification to practice medicine or osteopathy in the State of Alabama is or may be guilty of any of the acts, offenses or conditions set out in Code of Ala. 1975, § 34-24-360. In carrying out its investigations, the Board is authorized to subpoena witnesses and to demand the production of documents, records and papers which it deems pertinent to any matters under investigation. The Board may within its discretion convene an investigative hearing which may be closed to the public and may receive testimony under oath and documentary evidence concerning any matter under investigation. At such hearings the Board may compel the attendance of witnesses by subpoena and the production of records, documents, and papers for its consideration. Any hearings convened by the Board of Medical Examiners pursuant to its investigative authority are not to be deemed contested cases under the Alabama Administrative Procedure Act.

(2) At such time as the Board may determine that there is probable cause to believe that a physician or osteopath is guilty of any of the acts, offenses, or conditions enumerated in Code of Ala. 1975, § 34-24-360, then the Board may direct that a written administrative complaint be prepared and filed with the Medical Licensure Commission. The administrative complaint shall be executed by the chairman of the Board, or the executive director of the Board, or any member designated by the Board and shall request that the Medical Licensure Commission issue an order directing the respondent to appear and answer the allegations of the administrative complaint.

(3) In the event that the Board of Medical Examiners determines that there exists sufficient evidence to indicate that a physician's or osteopath's continuation in practice presents an immediate danger to his patients or to the public, then in such event the Board may certify such facts and request that the Medical Licensure Commission temporarily suspend the license of such a physician or osteopath without a hearing immediately upon the filing of a complaint by the Board of Medical Examiners.

(4) At any time in the course of an investigation the Board may, within its discretion, issue a letter of concern to the physician or osteopath who is the subject of the investigation. A letter of concern shall consist of a private, confidential, written communication from the Board of Medical Examiners to the physician or osteopath, the contents of which shall be specified by the Board. A letter of concern shall not be considered a disciplinary action and is not intended to communicate a finding on the part of the Board that the physician or osteopath to whom the letter of concern is directed will be charged with or has been found guilty of any wrong doing. The purpose of the letter of concern is to provide notice to the physician or osteopath under investigation that the Board has concluded that the actions or conduct in question may not be in accord with generally accepted standards of medical practice and/or may be detrimental to patient care. The issuance of a letter of concern by the Board of Medical Examiners shall not preclude the Board from taking any other action authorized by law, including the filing of a written complaint with the Medical Licensure Commission in accordance with paragraph (2) of this Rule. A letter of concern shall be deemed a non-public record of the Board of Medical Examiners under the provisions of Rule 540-X-1-.03(5). The Board within its discretion, if applicable, may notify the person or persons whose compliant led to the Board's investigation that the physician or osteopath in question has been sent a letter of concern. The Board may make public statistical reports concerning the number and type of letters of concern issued by the Board.

(5)

(a) Every physician licensed to practice medicine or osteopathy in the State of Alabama who accepts the privilege of practicing medicine or osteopathy in the State of Alabama by actually practicing or by the making and filing of an annual registration to practice medicine shall be deemed to have given his consent to submit to a mental, physical or laboratory examination or to any combination of such examinations and to waive all objections to the admissibility of the examining physician's testimony or examination reports on the ground that they constitute privileged doctor-patient communications. Upon receipt of credible information that a physician or osteopath in this state has been evaluated or has received inpatient or outpatient treatment for any physical, psychiatric or psychological illness or for chemical dependency, drug addiction, or alcohol abuse the board may order that the physician execute and deliver to the board an authorization and release form directed to each and every facility or treatment provider authorizing and directing the release to the board of any reports of evaluation, mental or physical or examination, including psychiatric, psychological and neuropsychiatric examinations, hospital and treatment provider medical records, reports of laboratory tests for the presence of alcohol or drugs, rehabilitation records or mental competency evaluations. Any and all expenses incurred in the furnishing of the reports, records or documents which are the subject of an order issued by the board shall be borne by the physician or osteopath who is the subject of the order.

(b) Failure or refusal by the physician or osteopath to comply with an order of the board directing the execution and delivery to the board of an authorization and release form as provided in paragraph (5)(a) above shall constitute grounds for the summary suspension of the physician's or osteopath's license to practice medicine by the Medical Licensure Commission, which suspension shall continue in effect until such time as the physician or osteopath complies with the order of the board or the order is withdrawn by the board or the order is terminated by the Medical Licensure Commission after a hearing. The provisions of this subsection supersede any provisions of Section 41-22-19(d) of the Alabama Administrative Procedure Act that are in conflict.

(c) All reports, records, and documents released to the board under the provisions of paragraph (5)(a) above are hereby declared to be privileged and confidential and shall not be public records nor available for court subpoena or for discovery proceedings but may be used by the board in the course of its investigations and may be introduced as evidence in administrative hearings conducted by the board or the Medical Licensure Commission. Nothing contained herein shall apply to records made in the regular course of business of an individual; documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil proceedings merely because they were presented or considered during the proceedings of the Board of Medical Examiners or the Medical Licensure Commission.

(6)

(a) When the issue is whether or not a physician or osteopath has demonstrated a lack of basic medical knowledge or clinical competency then, upon a showing of probable cause to the board that the physician or osteopath is not presently capable of practicing medicine or osteopathy with reasonable skill and safety to patients, the board may order and direct that the physician or osteopath in question submit to a test of medical knowledge as designated by the board or to an evaluation of clinical competency by such means as directed by the board or to any combination of such examinations or evaluations, to be performed by or under the direction of a testing, evaluation or examination facility or provider approved by the board. The expense of such examinations and evaluations shall be borne by the physician or osteopath who is examined or evaluated.

(b) Failure or refusal by a physician or osteopath to comply with an order of the board issued pursuant to this rule shall constitute grounds for the summary suspension of the physician's or osteopath's license to practice medicine by the Medical Licensure Commission, which suspension shall continue in effect until such time as the physician or osteopath complies with the order of the board or the order is withdrawn by the board or the order is terminated by the Medical Licensure Commission after a hearing. The provisions of this subsection supersede any provisions of Section 41-22-19(d) of the Alabama Administrative Procedure Act that are in conflict.

(c) A physician or osteopath whose license to practice medicine has been summarily suspended by the Medical Licensure Commission under the authority of paragraph (b) above may obtain judicial review in accordance with the provisions of Sections 41-22-20 and 34-24-367.

(d) In the event that an examination or evaluation ordered by the board under the authority of this rule demonstrates that the physician or osteopath lacks basic medical knowledge or clinical training sufficient to engage in the practice of medicine with reasonable skill and safety to patients, then the board may order that a restriction be placed upon the certificate of qualification and license to practice medicine of the physician or osteopath which restriction may require:

1. The medical practice of the physician or osteopath in question be limited or restricted in a manner consistent with the findings of the examination or evaluation.

2. That the physician or osteopath successfully complete a course or courses of remedial education or clinical training as directed by the board.

3. That the physician or osteopath successfully pass or complete an examination of basic medical knowledge or clinical competency as designated by the board.

4. Any combination of the foregoing.

(e) The expense of any of the examinations, evaluations, and educational or training courses which are the subject of a restriction imposed by the board on the certificate of qualification and license to practice medicine shall be borne by the physician or osteopath in question. A physician or osteopath whose certificate of qualification and license to practice medicine has been restricted by the board under the authority of this section may request a hearing before the Medical Licensure Commission of Alabama. At such hearing it shall be the burden of the board to demonstrate to the reasonable satisfaction of the commission that the restriction or restrictions are consistent with the findings of the examination or evaluation ordered by the board. All hearings before the Medical Licensure Commission shall be conducted on an expedited basis and any restriction or restrictions shall not be stayed by the commission during the pendency of the hearing. The Medical Licensure Commission may consider, in any hearing resulting from a decision of the board to impose a restriction or restrictions on the certificate of qualification and license to practice medicine of the physician or osteopath in question, the results of all examinations or evaluations of basic medical knowledge or clinical competency upon which the board relied and such other evidence as the commission deems relevant to the issues presented. In rendering a decision, the Medical Licensure Commission is authorized to affirm the restriction or restrictions, modify the restriction or restrictions, or order the removal of the restriction or restrictions imposed by the board.

(f) A physician or osteopath adversely affected by a decision of the Medical Licensure Commission resulting from a hearing under the preceding subparagraph (e) may obtain judicial review in accordance with the provisions of Sections 41-22-20 and 34-24-367.

(g) The Medical Licensure Commission may, within its discretion, revoke or suspend the license to practice medicine of a physician or osteopath who fails to abide by or violates a restriction imposed by the board on the certificate of qualification and license to practice medicine of the physician or osteopath in question, or may impose administrative fines or other penalties as authorized by Section 34-24-361 and Section 34-24-381.

(7) The State Board of Medical Examiners, when acting in the capacity of a certifying board under the Alabama Uniform Controlled Substances Act, Section 20-2-1, et. seq., may, within its discretion and for cause, order, and direct that a physician or osteopath holding a registration certificate successfully complete a course or courses of continuing medical education on subjects related to the prescribing, dispensing, administering, or furnishing of controlled substances. The course or courses of continuing medical education ordered by the Board may not exceed 25 credit hours of instruction within the calendar year in which the order is entered. Failure or refusal to comply with an order or directive of the board entered pursuant to this section shall constitute grounds, after notice and hearing, for the suspension of the controlled substance registration certificate of the physician or osteopath in question which shall continue in effect until such time as the physician or osteopath has complied with the order of the board or the board has rescinded or withdrawn the order. The provisions of this section supersede any provisions of Sections 20-2-53 and 20-2-54 of this code that are in conflict. A physician or osteopath adversely affected by a decision of the board to suspend his or her controlled substance registration certificate may obtain judicial review in accordance with the provisions of Section 20-2-53, Code of Ala. 1975.

(8)

(a) During the course of an investigation, the Board may require that a physician submit to a criminal history background check to include the following:

(i) The provision of fingerprints using forms provided by the Board;

(ii) The execution and provision of a criminal history information release using forms provided by the Board;

(iii) The payment of a fee in an amount established in Rule 540-X-3-.09(2).

(b) The fingerprints shall be submitted to the Alabama Bureau of Investigation (ABI), which is responsible for forwarding the fingerprints to the Federal Bureau of Investigation (FBI) for a national criminal history record check.

(c) Information received by the Board pursuant to a criminal history background check shall be confidential and shall not be a public record, except that such information received and relied upon in an investigation by the Board may be disclosed to the physician.

Ala. Admin. Code r. 540-X-5-.09

Filed November 9, 1982 as Rule No. 540-X-3-.06. Readopted: Filed February 8, 1983. Rules reorganized--rule number changed to 540-X-5-.06 (see conversion table at end of code): Filed June 14, 1984 (without publication in AAM). Amended: Filed March 20, 1995; effective April 24, 1995. Amended: Filed August 22, 2002; effective September 26, 2002. Amended (Rule No. Only): Filed November 13, 2007; effective December 18, 2007. Amended: Filed October 15, 2008; effective November 19, 2008.

Rule 540-X-5-.06 was renumbered to as per certification filed November 13, 2007.

Authors: Wendell R. Morgan, Patricia E. Shaner, Attorneys for the Alabama Board of Medical Examiners

Statutory Authority: Code of Ala. 1975, §§ 34-24-53, 34-24-360, 34-24-361, 34-24-363.