HF 2838

as introduced - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to health occupations; providing for disciplinary action for enumerated
conduct; amending Minnesota Statutes 2006, sections 148.571; 148.603;
proposing coding for new law in Minnesota Statutes, chapter 148; repealing
Minnesota Statutes 2006, section 148.57, subdivision 3.

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

Section 1.

Minnesota Statutes 2006, section 148.571, is amended to read:

148.571 USE OF TOPICAL OCULAR DRUGS.

Subdivision 1.

Authority.

Subject to the provisions of sections deleted text begin 148.57, subdivision
3, and deleted text end 148.571 to 148.574, licensed optometrists may administer topical ocular drugs to
the anterior segment of the human eye during an eye examination in the course of practice
in their normal practice setting, solely for the purposes of determining the refractive,
muscular, or functional origin of sources of visual discomfort or difficulty, and detecting
abnormalities which may be evidence of disease.

Subd. 2.

Drugs specified.

For purposes of sections deleted text begin 148.57, subdivision 3, and deleted text end
148.571 to 148.574, "topical ocular drugs" means:

(1) commercially prepared topical anesthetics as follows: proparacaine HC1 0.5
percent, tetracaine HC1 0.5 percent, and benoxinate HC1 0.4 percent;

(2) commercially prepared mydriatics as follows: phenylephrine HC1 in strength
not greater than 2.5 percent and hydroxyamphetamine HBr in strength not greater than
1 percent; and

(3) commercially prepared cycloplegics/mydriatics as follows: tropicamide in
strength not greater than 1 percent and cyclopentolate in strength not greater than 1 percent.

Sec. 2.

new text begin [148.601] GROUNDS FOR DISCIPLINARY AND CORRECTIVE
ACTION.
new text end

new text begin The following conduct is grounds for disciplinary or corrective action, provided that
disciplinary or corrective action may not be imposed by the board on any regulated person
except after a contested case hearing conducted pursuant to chapter 14 or by consent
of the parties:
new text end

new text begin (1) loaning a license by any licensed optometrist to any person;
new text end

new text begin (2) splitting or dividing a fee with any person;
new text end

new text begin (3) obtaining a fee or compensation by fraud or misrepresentation;
new text end

new text begin (4) employing directly or indirectly any suspended or unlicensed optometrist to
perform work covered by sections 148.52 to 148.62 or in any other manner aiding and
abetting the unauthorized practice of optometry;
new text end

new text begin (5) advertising by any means optometric practice or treatment or advice in which
untruthful, improbable, misleading, or impossible statements are made;
new text end

new text begin (6) engaging in conduct prohibited by, or listed as grounds for disciplinary action
in, the board's rules, or engaging in conduct that violates any statute or rule enforced
by the board;
new text end

new text begin (7) failing to demonstrate qualifications or satisfy requirements for credentialing,
with the burden of proof on the applicant to demonstrate the qualifications or the
satisfaction of the requirements;
new text end

new text begin (8) obtaining a credential by fraud or cheating, or attempting to subvert the
examination process;
new text end

new text begin (9) being convicted of a felony or gross misdemeanor directly related to the practice
of optometry, as evidenced by a certified copy of the conviction;
new text end

new text begin (10) having had a credential revoked, suspended, or surrendered due to the resolution
of a complaint or other adverse action related to credentialing in another jurisdiction or
country;
new text end

new text begin (11) failing to: report the revocation, suspension, surrender of a credential in
resolution of a complaint, or other disciplinary or adverse action taken against the person's
own credential in this or another jurisdiction or country; report that a pending complaint
or other pending charges regarding the person's own credential have been brought in
this or another jurisdiction or country; or report having been refused a credential by any
other jurisdiction or country for reasons that would constitute grounds for discipline or
corrective action under this section;
new text end

new text begin (12) engaging in unprofessional conduct. "Unprofessional conduct" means conduct
that may deceive, defraud, or harm the public; that demonstrates a willful or careless
disregard for the health, welfare, or safety of a client; or practice that is professionally
incompetent. Unprofessional conduct also includes any departure from or failure to
conform to the minimum standards of acceptable and prevailing practice as established by
statute, rule, or a consensus of expert optometric opinion as reasonably necessary for the
protection of the public interest, with proof of actual injury not having to be established;
new text end

new text begin (13) being adjudicated by a court of competent jurisdiction, within or without this
state, as currently incapacitated, mentally incompetent, mentally ill, chemically dependent,
mentally ill and dangerous to the public, or a psychopathic personality;
new text end

new text begin (14) being unable to practice with reasonable skill and safety to clients by reason
of a current mental or physical condition, use of alcohol, drugs, chemicals, or any other
material;
new text end

new text begin (15) revealing a privileged communication from or relating to a client except when
otherwise required or permitted by law;
new text end

new text begin (16) directly or indirectly engaging in threatening, dishonest, or misleading fee
collection techniques;
new text end

new text begin (17) obtaining or attempting to obtain money, property, or services from clients,
third party payors, or others through deception or fraud, including violations of the federal
Medicare and Medicaid laws or state medical assistance laws;
new text end

new text begin (18) violating an order issued in good faith by the board following a contested case
hearing, upon consent of the parties, or pursuant to sections 148.602 and 148.603;
new text end

new text begin (19) practicing outside the scope of practice authorized by sections 148.52 to 148.62;
new text end

new text begin (20) making a false statement or misrepresentation to the board;
new text end

new text begin (21) engaging in sexual contact with a client, as defined in section 148A.01, or
conduct that is or may reasonably be interpreted by the client as sexual, engaging in
verbal behavior that is or may reasonably be interpreted as sexually seductive or sexually
demeaning to a client, or engaging in conduct that violates section 617.23;
new text end

new text begin (22) being convicted, including a finding or verdict of guilt, whether or not the
adjudication of guilt is withheld or not entered, on admission of guilt, or a no contest
plea, of a crime against a minor;
new text end

new text begin (23) being convicted, including a finding or verdict of guilt, whether or not the
adjudication of guilt is withheld or not entered, on admission of guilt, or a no contest
plea, of a violation of section 609.23, 609.231, 609.342, 609.343, 609.344, 609.345,
609.465, 609.466, or 609.52; or
new text end

new text begin (24) unreasonably failing to cooperate once an investigation has been initiated by
the board. Cooperation includes responding fully and promptly to questions raised by
or on behalf of the board relating to the subject of the investigation; providing copies
of client and other records in the regulated person's possession relating to the matter
under investigation as requested by the board; and assisting the board in its investigation,
including executing releases for records as requested by the board, and appearing at
conferences or education meetings scheduled by the board, as referenced in chapter 214.
new text end

Sec. 3.

new text begin [148.602] EXAMINATION BASED ON PROBABLE CAUSE.
new text end

new text begin Subdivision 1. new text end

new text begin Examination. new text end

new text begin If the board has probable cause to believe that grounds
exist under section 148.601, clause (14), against a regulated person, the board may
authorize the issuance of an order directing the regulated person to submit to a mental or
physical examination or chemical dependency evaluation. For the purpose of this section,
every regulated person is considered to have consented to submit to a mental or physical
examination or chemical dependency evaluation when ordered to do so and to have
waived all objections to the admissibility of the examiner's or evaluator's testimony or
reports on the grounds that the testimony or reports constitute a privileged communication.
An order for examination under this section and the evaluators' or examiners' reports are
private data on an individual. Nothing in this subdivision precludes a regulated person
from submitting to an additional examination or evaluation by an examiner or evaluator
selected by the regulated person and at the regulated person's expense.
new text end

new text begin Subd. 2. new text end

new text begin Failure to submit to examination. new text end

new text begin Failure to submit to and complete
an examination or evaluation, unless the failure was due to circumstances beyond the
control of the regulated person, constitutes an admission that grounds exist under section
148.601, clause (14), against the regulated person, based on the factual specifications in
the examination or evaluation order, and may result in an application being denied or,
after a contested case hearing as described in this subdivision, a disciplinary order. The
only issues to be determined at the hearing are whether the board had probable cause to
authorize the examination or evaluation order and whether the failure to submit was
due to circumstances beyond the control of the regulated person. Neither the record of
a proceeding under this subdivision nor the orders entered by the board are admissible,
subject to subpoena, or to be used against the regulated person in a proceeding in which
the board is not a party.
new text end

new text begin Subd. 3. new text end

new text begin Access to data and records. new text end

new text begin In addition to ordering a physical or mental
examination and notwithstanding section 13.384, 144.335, 144.651, or 595.02, or any
other law limiting access to medical or other health records, the board may authorize
obtaining data and health records relating to a regulated person without the regulated
person's consent if the board has probable cause to believe that grounds exist under
section 148.601, clause (14), against the regulated person. A regulated person, insurance
company, health care facility, government agency, or provider as defined in section
144.335, subdivision 1, paragraph (b), shall comply with any written request under this
subdivision and is not liable in any action for damages for releasing the data requested if
the data are released with a written request made under this subdivision. Information on
individuals obtained under this subdivision is investigative data under section 13.41.
new text end

Sec. 4.

Minnesota Statutes 2006, section 148.603, is amended to read:

148.603 FORMS OF DISCIPLINARY ACTIONS.

new text begin Subdivision 1. new text end

new text begin Board action. new text end

When grounds exist under deleted text begin section 148.57, subdivision
3, or other deleted text end statute or rule which the board is authorized to enforce, the board may take
one or more of the following disciplinary actions, provided that disciplinary or corrective
action may not be imposed by the board on any regulated person except after a contested
case hearing conducted pursuant to chapter 14 or by consent of the parties:

(1) deny an application for a credential;

(2) revoke the regulated person's credential;

(3) suspend the regulated person's credential;

(4) impose limitations on the regulated person's credential;

(5) impose conditions on the regulated person's credential;

(6) censure or reprimand the regulated person;

(7) impose a civil penalty not exceeding $10,000 for each separate violation, the
amount of the civil penalty to be fixed so as to deprive the person of any economic
advantage gained by reason of the violation or to discourage similar violations or to
reimburse the board for the cost of the investigation and proceeding. For purposes of
this section, the cost of the investigation and proceeding may include, but is not limited
to, fees paid for services provided by the Office of Administrative Hearings, legal and
investigative services provided by the Office of the Attorney General, court reporters,
witnesses, reproduction of records, board members' per diem compensation, board staff
time, and travel costs and expenses incurred by board staff and board members; or

(8) when grounds exist under deleted text begin section 148.57, subdivision 3, or deleted text end a board rule, enter
into an agreement with the regulated person for corrective action which may include
requiring the regulated person:

(i) to complete an educational course or activity;

(ii) to submit to the executive director or designated board member a written
protocol or reports designed to prevent future violations of the same kind;

(iii) to meet with a board member or board designee to discuss prevention of future
violations of the same kind; or

(iv) to perform other action justified by the facts.

Listing the measures in clause (8) does not preclude the board from including them
in an order for disciplinary action.

new text begin Subd. 2. new text end

new text begin Automatic suspension. new text end

new text begin (a) Upon notice to the board of an adjudication
under section 148.601, clause (13), the board shall automatically suspend the credential of
the regulated person. The credential shall remain suspended until the person is restored
to capacity by the court and, after a hearing upon the regulated person's petition for
reinstatement or after entering into an agreement with the regulated person, the board
orders reinstatement of the credential.
new text end

new text begin (b) Upon notice to the board of a judgment of conviction for a felony as provided
in section 148.601, clause (8), or as listed in section 148.601, clause (22), and receipt of
findings under subdivision 1 that the conviction directly relates to the credential of the
regulated person, the board shall automatically suspend the credential of the regulated
person until the person demonstrates, by clear and convincing evidence, rehabilitation
as provided in section 364.03. The board shall serve upon the regulated person notice of
a suspension under this subdivision by mail or in person within ten days of the board's
receipt of notice from the court of its adjudication or judgment and findings.
new text end

new text begin Subd. 3. new text end

new text begin Temporary suspension. new text end

new text begin In addition to any other remedy provided by law,
the board may, without a hearing, temporarily suspend the credentials of a regulated
person if the board finds that the regulated person has violated a statute or rule that the
board is empowered to enforce and continued practice by the regulated person would
create a serious risk of harm to others. The suspension is in effect upon service of a
written temporary suspension order on the regulated person specifying the statute or rule
violated. Service of the temporary suspension order is effective upon personal service
or service by certified or registered mail evidenced by return receipt upon the regulated
person or counsel at the regulated person's or counsel's last known address. The temporary
order remains in effect until the board issues an order after a limited hearing described in
subdivision 4 or upon agreement between the board and the regulated person.
new text end

new text begin Subd. 4. new text end

new text begin Limited hearing. new text end

new text begin Within ten days of service of the temporary suspension
order, the board shall conduct a limited hearing before its own members on the sole issue
of whether there is a reasonable basis for the temporary suspension order to remain in
effect. Evidence presented by the board and the regulated person shall be by affidavit only.
Both parties shall be given an opportunity to present oral arguments at the hearing. Within
five working days after the hearing, the board shall serve an order and, if the temporary
suspension is to remain in effect, initiate a contested case hearing to be commenced within
45 days after service of the order.
new text end

new text begin Subd. 5. new text end

new text begin Contested case hearing. new text end

new text begin The administrative law judge shall issue a report
within 30 days after closing the contested case hearing record. The board shall issue a
final order within 30 days after receiving the administrative law judge's report.
new text end

new text begin Subd. 6. new text end

new text begin Petition for reinstatement. new text end

new text begin A regulated person whose credential has been
suspended, revoked, or restricted may petition the board for reinstatement of the license.
The petition must be made in writing. The board shall consider the petition at its first
regular meeting, or at a special meeting called by the board, after receipt of the petition,
provided the petition is received 14 days prior to meeting. The board may in its discretion
grant or deny the petition or modify its original finding to reflect any circumstances which
have changed sufficiently to warrant the modifications.
new text end

new text begin Subd. 7. new text end

new text begin Reinstatement. new text end

new text begin Upon reinstating a regulated person's credential or
granting an applicant's credential, the board may, at its discretion, impose any disciplinary
action listed in subdivision 3, as well as any reinstatement fee, not to exceed the annual
license renewal fee.
new text end

Sec. 5.

new text begin [148.604] EVIDENCE IN CONTESTED CASES.
new text end

new text begin (a) A certified copy of the judgment of conviction is admissible as evidence in a
contested case without further authentication, constitutes proof of the facts underlying
the conviction, and creates a presumption in favor of disciplinary action under section
148.601, clauses (8) and (22). The regulated person may rebut the presumption with clear
and convincing evidence of rehabilitation under section 364.03. The regulated person may
not rebut the presumption through a collateral attack on the conviction. Certified copies
of transcripts in the criminal proceedings are admissible into evidence without further
authentication and do not constitute hearsay.
new text end

new text begin (b) In a contested case alleging grounds under section 148.601, clause (9) or (10),
a certified copy of the disposition of a proceeding before an administrative agency is
admissible into evidence without further authentication and constitutes prima facie
evidence of its contents.
new text end

new text begin (c) In a contested case alleging grounds under section 148.601, clause (22), a
certified copy of the judgment of conviction is admissible into evidence without further
authentication, constitutes proof of the underlying conviction, and creates a presumption
that the regulated person is unfit to practice. The regulated person may rebut the
presumption with clear and convincing evidence of rehabilitation and fitness to practice
with or without conditions or limitations on the regulated person's credential.
new text end

new text begin (d) In a contested case based upon section 148.601, clause (8), (20), (21), or (22),
evidence of a client's previous sexual conduct is not admissible except as provided in
section 148A.05.
new text end

Sec. 6.

new text begin [148.605] ADDITIONAL REMEDY; CEASE AND DESIST ORDER.
new text end

new text begin The board may in its own name, issue a cease and desist order to stop an
uncredentialed person from engaging in an unauthorized practice or violating or
threatening to violate a statute, rule, or order which the board has issued or is empowered
to enforce. The cease and desist order must state the reason for its issuance and give
notice of the person's right to request a hearing under sections 14.57 to 14.62. The
order shall be effective upon personal service or service by certified or registered mail
evidenced by return receipt. If, within 15 days of service of the order, the subject of
the order fails to request a hearing in writing, the order is the final order of the board
and is not reviewable by a court or agency. A hearing must be initiated not later than
30 days from the date of receipt of a written hearing request. The administrative law
judge shall issue a report within 30 days of the close of the contested case hearing record,
notwithstanding Minnesota Rules, part 1400.8100, subpart 3. Within 30 days of receipt
of the administrative law judge's report, the board shall issue a final order modifying,
vacating, or making permanent the cease and desist order as the facts require. The final
order remains in effect until modified or vacated by the board.
new text end

new text begin In the event of noncompliance with a cease and desist order, the board may institute
a proceeding in Ramsey County District Court to obtain injunctive relief or other
appropriate relief, including a civil penalty payable to the board not exceeding $10,000 for
each separate violation.
new text end

Sec. 7. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2006, section 148.57, subdivision 3, new text end new text begin is repealed.
new text end