Current through Register Vol. 42, No. 5, February 29, 2024
(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.
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.
