2002 Minnesota Statutes

     148.941 Disciplinary action; investigation; penalty for 
  violation. 

    Subdivision 1.    Generally.  Except as otherwise 
 described in this section, all hearings shall be conducted under 
 chapter 14. 

    Subd. 2.    Grounds for disciplinary action; forms of 
 disciplinary action.  (a) The board may impose disciplinary 
 action as described in paragraph (b) against an applicant or 
 licensee whom the board, by a preponderance of the evidence, 
 determines:  

    (1) has violated a statute, rule, or order that the board 
 issued or is empowered to enforce; 

    (2) has engaged in fraudulent, deceptive, or dishonest 
 conduct, whether or not the conduct relates to the practice of 
 psychology, that adversely affects the person's ability or 
 fitness to practice psychology; 

    (3) has engaged in unprofessional conduct or any other 
 conduct which has the potential for causing harm to the public, 
 including any departure from or failure to conform to the 
 minimum standards of acceptable and prevailing practice without 
 actual injury having to be established; 

    (4) has been convicted of or has pled guilty or nolo 
 contendere to a felony or other crime, an element of which is 
 dishonesty or fraud, or has been shown to have engaged in acts 
 or practices tending to show that the applicant or licensee is 
 incompetent or has engaged in conduct reflecting adversely on 
 the applicant's or licensee's ability or fitness to engage in 
 the practice of psychology; 

    (5) has employed fraud or deception in obtaining or 
 renewing a license, in requesting approval of continuing 
 education activities, or in passing an examination; 

    (6) has had a license, certificate, charter, registration, 
 privilege to take an examination, or other similar authority 
 denied, revoked, suspended, canceled, limited, reprimanded, or 
 otherwise disciplined, or not renewed for cause in any 
 jurisdiction; or has surrendered or voluntarily terminated a 
 license or certificate during a board investigation of a 
 complaint, as part of a disciplinary order, or while under a 
 disciplinary order; 

    (7) has been subject to a corrective action or similar 
 action in another jurisdiction or by another regulatory 
 authority; 

    (8) has failed to meet any requirement for the issuance or 
 renewal of the person's license.  The burden of proof is on the 
 applicant or licensee to demonstrate the qualifications or 
 satisfy the requirements for a license under the Psychology 
 Practice Act; 

    (9) has failed to cooperate with an investigation of the 
 board as required under subdivision 4; 

    (10) has demonstrated an inability to practice psychology 
 with reasonable skill and safety to clients due to any mental or 
 physical illness or condition; or 

    (11) has engaged in fee splitting.  This clause does not 
 apply to the distribution of revenues from a partnership, group 
 practice, nonprofit corporation, or professional corporation to 
 its partners, shareholders, members, or employees if the 
 revenues consist only of fees for services performed by the 
 licensee or under a licensee's administrative authority.  This 
 clause also does not apply to the charging of a general 
 membership fee by a licensee or applicant to health care 
 providers, as defined in section 144.335, for participation in a 
 referral service, provided that the licensee or applicant 
 discloses in advance to each referred client the financial 
 nature of the referral arrangement.  Fee splitting includes, but 
 is not limited to: 

    (i) paying, offering to pay, receiving, or agreeing to 
 receive a commission, rebate, or remuneration, directly or 
 indirectly, primarily for the referral of clients; 

    (ii) dividing client fees with another individual or 
 entity, unless the division is in proportion to the services 
 provided and the responsibility assumed by each party; 

    (iii) referring an individual or entity to any health care 
 provider, as defined in section 144.335, or for other 
 professional or technical services in which the referring 
 licensee or applicant has a significant financial interest 
 unless the licensee has disclosed the financial interest in 
 advance to the client; and 

    (iv) dispensing for profit or recommending any instrument, 
 test, procedure, or device that for commercial purposes the 
 licensee or applicant has developed or distributed, unless the 
 licensee or applicant has disclosed any profit interest in 
 advance to the client.  

    (b) If grounds for disciplinary action exist under 
 paragraph (a), the board may take one or more of the following 
 actions: 

    (1) refuse to grant or renew a license; 

    (2) revoke a license; 

    (3) suspend a license; 

    (4) impose limitations or conditions on a licensee's 
 practice of psychology, including, but not limited to, limiting 
 the scope of practice to designated competencies, imposing 
 retraining or rehabilitation requirements, requiring the 
 licensee to practice under supervision, or conditioning 
 continued practice on the demonstration of knowledge or skill by 
 appropriate examination or other review of skill and competence; 

    (5) censure or reprimand the licensee; 

    (6) refuse to permit an applicant to take the licensure 
 examination or refuse to release an applicant's examination 
 grade if the board finds that it is in the public interest; or 

    (7) impose a civil penalty not exceeding $7,500 for each 
 separate violation.  The amount of the penalty shall be fixed so 
 as to deprive the applicant or licensee of any economic 
 advantage gained by reason of the violation charged, to 
 discourage repeated violations, or to recover the board's costs 
 that occur in bringing about a disciplinary order.  For purposes 
 of this clause, costs are limited to legal, paralegal, and 
 investigative charges billed to the board by the attorney 
 general's office, witness costs, consultant and expert witness 
 fees, and charges attendant to the use of an administrative law 
 judge.  

    (c) In lieu of or in addition to paragraph (b), the board 
 may require, as a condition of continued licensure, termination 
 of suspension, reinstatement of license, examination, or release 
 of examination grades, that the applicant or licensee: 

    (1) submit to a quality review, as specified by the board, 
 of the applicant's or licensee's ability, skills, or quality of 
 work; 

    (2) complete to the satisfaction of the board educational 
 courses specified by the board; and 

    (3) reimburse to the board all costs incurred by the board 
 that are the result of a provider failing, neglecting, or 
 refusing to fully comply, or not complying in a timely manner, 
 with any part of the remedy section of a stipulation and consent 
 order or the corrective action section of an agreement for 
 corrective action.  For purposes of this clause, costs are 
 limited to legal, paralegal, and investigative charges billed to 
 the board by the attorney general's office, witness costs, 
 consultant and expert witness fees, and charges attendant to the 
 use of an administrative law judge. 

    (d) Service of the order is effective if the order is 
 served on the applicant, licensee, or counsel of record 
 personally or by mail to the most recent address provided to the 
 board for the licensee, applicant, or counsel of record.  The 
 order shall state the reasons for the entry of the order. 

    Subd. 3.    Temporary suspension of license.  (a) In 
 addition to any other remedy provided by law, the board may 
 temporarily suspend the credentials of a licensee after 
 conducting a preliminary inquiry to determine if the board 
 reasonably believes that the licensee has violated a statute or 
 rule that the board is empowered to enforce and continued 
 practice by the licensee would create an imminent risk of harm 
 to others.  

    (b) The order may prohibit the licensee from engaging in 
 the practice of psychology in whole or in part and may condition 
 the end of a suspension on the licensee's compliance with a 
 statute, rule, or order that the board has issued or is 
 empowered to enforce. 

    (c) The order shall give notice of the right to a hearing 
 pursuant to this subdivision and shall state the reasons for the 
 entry of the order. 

    (d) Service of the order is effective when the order is 
 served on the licensee personally or by certified mail which is 
 complete upon receipt, refusal, or return for nondelivery to the 
 most recent address provided to the board for the licensee.  

    (e) At the time the board issues a temporary suspension 
 order, the board shall schedule a hearing to be held before its 
 own members which shall begin no later than 60 days after 
 issuance of the temporary suspension order or within 15 working 
 days of the date of the board's receipt of a request for hearing 
 by a licensee on the sole issue of whether there is a reasonable 
 basis to continue, modify, or lift the temporary suspension.  
 This hearing is not subject to chapter 14.  Evidence presented 
 by the board or the licensee shall be in affidavit form only.  
 The licensee or counsel of record may appear for oral argument. 

    (f) Within five working days of the hearing, the board 
 shall issue its order and, if the suspension is continued, 
 schedule a contested case hearing within 30 days of the issuance 
 of the order.  Notwithstanding chapter 14, 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 of receipt of the administrative law 
 judge's report. 

    Subd. 4.    Cooperation of applicants or licensees with 
 investigations.  (a) An applicant or licensee of the board who 
 is the subject of an investigation or who is questioned in 
 connection with an investigation by or on behalf of the board 
 shall cooperate fully with the investigation.  Cooperation 
 includes responding fully and promptly to any question raised by 
 or on behalf of the board relating to the subject of the 
 investigation, executing all releases requested by the board, 
 providing copies of client records, as reasonably requested by 
 the board to assist it in its investigation, and appearing at 
 conferences or hearings scheduled by the board or its staff.  

    (b) If the board does not have a written consent from a 
 client permitting access to the client's records, the licensee 
 may delete any data in the record which identify the client 
 before providing it to the board.  The board shall maintain any 
 records obtained pursuant to this section as investigative data 
 pursuant to chapter 13. 

    Subd. 5.    Evidence of past sexual conduct.  In a 
 proceeding for the suspension or revocation of a license or 
 other disciplinary action for unethical or unprofessional 
 conduct involving sexual contact with a client or former client, 
 the board or administrative law judge shall not consider 
 evidence of the client's previous sexual conduct nor shall any 
 reference to this conduct be made during the proceedings or in 
 the findings, except by motion of the client, unless the 
 evidence would be admissible under applicable provisions of 
 section 609.347, subdivision 3. 

    Subd. 6.    Violation.  Persons who engage in the 
 unlicensed practice of psychology or who misrepresent themselves 
 as psychologists or psychological practitioners are guilty of a 
 gross misdemeanor. 

    Subd. 7.    Limitation period.  (a) For complaints 
 against providers received by the board after July 31, 2001, a 
 board proceeding against a provider must not be instituted 
 unless it is begun within seven years from the date of some 
 portion of the alleged misconduct that is complained of. 

    (b) The following are exceptions to the limitation period 
 in paragraph (a): 

    (1) complaints alleging a violation of subdivision 2, 
 paragraph (a), clauses (2), (4), (5), and (6); 

    (2) complaints alleging sexual intercourse or other 
 physical intimacies with a client, or any verbal or physical 
 behavior that is sexually seductive or sexually demeaning to the 
 client; or complaints alleging sexual intercourse or other 
 physical intimacies with a former client, or any verbal or 
 physical behavior that is sexually demeaning to the former 
 client, for a period of two years following the date of the last 
 professional contact with the former client, whether or not the 
 provider has formally terminated the professional relationship.  
 Physical intimacies include handling of the breasts, genital 
 areas, buttocks, or thighs of either sex by either the provider 
 or the client.  

    (c) If a complaint is received by the board less than 12 
 months from the expiration of the limitation period in paragraph 
 (a), the limitation period is extended for a period of 12 months 
 from the date the complaint is received by the board. 

    (d) If alleged misconduct is complained of that involves a 
 client who is a minor, the limitation period in paragraph (a) 
 does not begin until the minor reaches the age of 18.  

    (e) For purposes of this subdivision only, "proceeding" 
 means the service of a notice of conference, or in cases in 
 which a notice of conference was not served, a notice of hearing.

    HIST: 1993 c 206 s 18; 1996 c 424 s 16-19; 1997 c 134 s 5; 
 1999 c 109 s 7,8; 2000 c 363 s 9; 2001 c 66 s 1,2