Report Title:

Homeopathic Medicine

Description:

Requires persons practicing homeopathic medicine to obtain licensure.

HOUSE OF REPRESENTATIVES

H.B. NO.

1068

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO HOMEOPATHIC MEDICINE.

 

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

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

HOMEOPATHIC MEDICINE

PART I. GENERAL PROVISIONS

§ -1 Definitions. As used in this chapter, unless the context otherwise requires:

"Advanced practitioner of homeopathy" means a person who has:

(1) Complied with all of the requirements set forth in this chapter, chapter 436B, and the rules adopted by the board for advanced practitioners of homeopathy; and

(2) Received from the board a certificate as an advanced practitioner of homeopathy.

"Board" means the board of homeopathic medical examiners.

"Gross malpractice" means malpractice where the failure to exercise the requisite degree of care, diligence, or skill consists of:

(1) Ministering to a patient while the homeopathic physician is under the influence of alcohol or any controlled substance;

(2) Gross negligence;

(3) Wilful disregard of homeopathic medical procedures; or

(4) Wilful and consistent use of homeopathic medical procedures, services, or treatment considered by licensed homeopathic physicians to be inappropriate or unnecessary.

"Healing art" means any system, treatment, operation, diagnosis, prescription, or practice for the ascertainment, cure, relief, palliation, adjustment, or correction of any human disease, ailment, deformity, injury, or unhealthy or abnormal physical or mental condition for the practice of which long periods of specialized education and training and a degree of specialized knowledge of an intellectual as well as physical nature are required.

"Homeopathic assistant" means a person who is a graduate of an academic program approved by the board or who, by general education, practical training, and experience determined to be satisfactory by the board, is qualified to perform homeopathic services under the supervision of a supervising homeopathic physician and who has been issued a certificate as a homeopathic assistant by the board.

"Homeopathic medicine" and "homeopathy" means a system of medicine employing substances of animal, vegetable, chemical, or mineral origin, including:

(1) Nosodes and sarcodes, which are:

(A) Given in micro-dosage, except that sarcodes may be given in macro-dosage;

(B) Prepared according to homeopathic pharmacology by which the formulation of homeopathic preparations is accomplished by the methods of Hahnemannian dilution and succussion or magnetically energized geometric patterns applicable in potencies above 30X, as defined in the official Homeopathic Pharmacopoeia of the United States; and

(C) Prescribed by homeopathic physicians or advanced practitioners of homeopathy according to the medicines and dosages in the Homeopathic Pharmacopoeia of the United States,

in accordance with the principle that a substance which produces symptoms in a healthy person can eliminate those symptoms in an ill person.

(2) Noninvasive electrodiagnosis, cell therapy, neural therapy, herbal therapy, neuromuscular integration, orthomolecular therapy, and nutrition.

"Homeopathic physician" means a person who has:

(1) Complied with all of the requirements set forth in this chapter and the rules adopted by the board for the practice of homeopathic medicine; and

(2) Received from the board a license to practice homeopathic medicine.

"Malpractice" means failure on the part of a homeopathic physician to exercise the degree of care, diligence, and skill ordinarily exercised by homeopathic physicians in good standing.

"Professional incompetence" means lack of ability safely and skillfully to practice homeopathic medicine, or to practice one or more specified branches of homeopathic medicine, arising from:

(1) Lack of knowledge or training;

(2) Impaired physical or mental capability of the homeopathic physician;

(3) Indulgence in the use of alcohol or any controlled substance; or

(4) Any other sole or contributing cause.

"Supervising homeopathic physician" means an active homeopathic physician licensed in this State who employs and supervises a homeopathic assistant or an advanced practitioner of homeopathy.

§ -2 License as revocable privilege. The purpose of licensing homeopathic physicians is to protect the public health, safety, and general welfare of the people of this State. Any license issued pursuant to this chapter is a revocable privilege and no holder of a license acquires any vested right.

§ -3 Applicability. (a) This chapter does not apply to:

(1) The practice of dentistry, chiropractic, Oriental medicine, podiatry, optometry, respiratory care, faith or Christian Science healing, nursing, veterinary medicine, or hearing aid dealers and fitters;

(2) A medical officer of the armed services or a medical officer of any division or department of the United States in the discharge of the medical officer's official duties;

(3) Licensed or certified nurses in the discharge of their duties as nurses; or

(4) Homeopathic physicians who are called into this State, other than on a regular basis, for consultation or assistance to any physician licensed in this State, and who are legally qualified to practice in the state or country where they reside.

(b) This chapter does not repeal or affect any statute of this State that regulates or affects any other healing art.

(c) This chapter does not prohibit:

(1) Gratuitous services of a person in case of emergency; or

(2) The domestic administration of family remedies.

(d) This chapter does not authorize a homeopathic physician to practice medicine under chapter 453.

PART II. BOARD OF HOMEOPATHIC MEDICAL EXAMINERS

§ -11 Board of homeopathic medical examiners. (a) There is established the board of homeopathic medical examiners. The board shall consist of seven members appointed by the governor as provided in section 26-34. After the initial terms, the term of office of each member is four years.

(b) The board shall elect from its members a chair, a vice-chair, and a secretary-treasurer. The officers of the board hold their respective offices during its pleasure.

(c) The board shall receive through its secretary-treasurer applications for the certificates issued under this chapter.

(d) Four members of the board shall be persons who:

(1) Are licensed to practice allopathic or osteopathic medicine in any state or country, the District of Columbia, or a territory or possession of the United States;

(2) Have been engaged in the practice of homeopathic medicine in this State for a period of more than two years preceding their respective appointments;

(3) Are actually engaged in the practice of homeopathic medicine in this State; and

(4) Are residents of this State.

(e) The remaining members shall be persons who:

(1) Are not licensed in any state to practice any healing art;

(2) Are not actively engaged in the administration of any medical facility;

(3) Do not have a pecuniary interest in any matter pertaining to such a facility, except as a patient or potential patient; and

(4) Have resided in the State for at least five years.

The members of the board shall be selected without regard to their individual political beliefs.

§ -12 Expiration of term; removal of member; replacement of removed member. (a) Upon expiration of a term of office, a member shall continue to serve until the member's successor is appointed and qualified.

(b) A member of the board may be removed by the governor for good cause. The governor shall appoint a person qualified under this chapter to replace a removed member for the remainder of the unexpired term.

§ -13 Oaths of office. Before beginning a term of office, each member of the board shall take:

(1) The oath or affirmation of office; and

(2) An oath or affirmation that the member is legally qualified to serve on the board.

§ -14 Meetings; quorum. (a) The board shall meet at least twice annually and may meet at other times on the call of the chair or a majority of its members.

(b) A majority of the board constitutes a quorum to transact all business.

§ -15 Duties. The board shall:

(1) Regulate the practice of homeopathic medicine in this State and any activities that are within the scope of the practice, to protect the public health, safety, and general welfare of the people of the State;

(2) Determine the qualifications of, and examine, applicants for licensure or certification pursuant to this chapter, and specify by rule the methods to be used to check the background of the applicants;

(3) License or certify the applicants the board finds to be qualified;

(4) Investigate, hear, and decide all complaints made against any homeopathic physician, advanced practitioner of homeopathy, homeopathic assistant, or any agent or employee of any of them, or any facility where the primary practice is homeopathic medicine. If a complaint concerns a practice which is within the jurisdiction of another licensing board, including, without limitation, spinal manipulation, surgery, nursing, or allopathic medicine, the board shall refer the complaint to the other licensing board.

§ -16 Compensation of members; deposit of money received by board; delegation of authority concerning disciplinary action. (a) Each member of the board shall serve without pay but shall be reimbursed for necessary traveling expenses incurred in connection with the member's official duties.

(b) All moneys received by the board shall be deposited in the compliance resolution fund established under section 26-9(o).

(c) The board may delegate to a hearing officer or panel its authority to take any disciplinary action pursuant to this chapter, and impose and collect administrative fines, court costs, and attorney's fees.

§ -17 Seal. The board shall procure a seal. All licenses and certificates issued by the board shall bear the seal of the board and the signatures of its chair and secretary-treasurer.

§ -18 Unauthorized use of seal or designation of board or license or certificate issued by board. A person shall not use the seal, the designation of the board, or any license or certificate issued by the board, or any imitation thereof in any way not authorized by this chapter or the rules of the board.

§ -19 Fiscal year. The board shall operate on the basis of a fiscal year commencing on July 1 and terminating on June 30 of the following year.

§ -20 Employees. The board may employ attorneys, investigators, hearing officers, experts, administrators, consultants, and clerical personnel necessary to carry out its duties.

§ -21 Rules. The board shall adopt rules pursuant to chapter 91 as are necessary to carry out this chapter.

§ -22 Hearings: subpoenas; production of other evidence. (a) The board may hold hearings and conduct investigations relating to its duties under this chapter and take evidence on any matter under inquiry before the board. The secretary-treasurer of the board or, in the secretary-treasurer's absence, any member of the board may administer oaths to any witness appearing before the board. The secretary-treasurer or chair of the board may issue subpoenas to compel the attendance of witnesses and the production of books, medical records, X-ray photographs, and other papers. The secretary-treasurer, chair, or other officer of the board shall sign the subpoena on behalf of the board.

(b) If any person fails to comply with a subpoena issued by the board, the secretary-treasurer or chair of the board may petition the district court for an order of the court compelling compliance with the subpoena.

(c) Upon such a petition, the court shall enter an order directing the person subpoenaed to appear before the court at a time and place to be fixed by the court in its order, the time to be not more than ten days from the date of the order, and show cause why the person has not complied with the subpoena. A certified copy of the order shall be served upon that person.

(d) If it appears to the court that the subpoena was regularly issued by the board, the court shall enter an order compelling compliance with the subpoena, and upon failure to obey the order the person shall be dealt with as for contempt of court.

PART III. LICENSING AND CERTIFICATION

§ -31 Unlawful acts concerning practice of homeopathic medicine; limitation on use of designation of degree. (a) It is unlawful for any person:

(1) To practice homeopathic medicine;

(2) To hold claim to be qualified to practice homeopathic medicine; or

(3) To use in connection with the person's name the words or letters "H.M.D." or any other title, word, letter, or other designation intended to imply or designate the person as a practitioner of homeopathic medicine,

in this State without first obtaining a license to do so as provided in this chapter.

(b) A physician licensed pursuant to this chapter who holds a degree such as doctor of medicine or doctor of osteopathy may identify the physician's self by that degree or its appropriate abbreviation.

§ -32 Effect of revocation of license in another jurisdiction for gross medical negligence. (a) The board shall not issue a license to practice homeopathic medicine to an applicant who has been licensed to practice any type of medicine in another jurisdiction and whose license was revoked for gross medical negligence by that jurisdiction.

(b) The board may revoke the license of any person licensed to practice homeopathic medicine in this State if it determines that the person had a license to practice any type of medicine in another jurisdiction which was revoked for gross medical negligence by that jurisdiction.

(c) The revocation of a license to practice any type of medicine in another jurisdiction on grounds other than grounds which would constitute revocation for gross medical negligence constitutes grounds for initiating disciplinary action or denying the issuance of a license.

(d) For the purposes of this section, the board shall adopt by rule a definition of "gross medical negligence".

§ -33 Qualifications of applicant for license to practice homeopathic medicine. (a) Every person desiring to practice homeopathic medicine must, before beginning to practice, procure from the board a license authorizing such practice.

(b) A license may be issued to any person who:

(1) Is a citizen of the United States or is lawfully entitled to remain and work in the United States;

(2) Has received the degree of doctor of medicine or doctor of osteopathic medicine from the school the person attended during the two years immediately preceding the granting of the degree;

(3) Is licensed to practice allopathic or osteopathic medicine in any state or country, the District of Columbia, or a territory or possession of the United States;

(4) Has completed one year of postgraduate training in allopathic or osteopathic medicine approved by the board;

(5) Has passed all oral or written examinations required by the board or this chapter; and

(6) Meets additional requirements established by the board.

§ -34 Application: proof of qualifications; rejection. (a) An applicant for a license to practice homeopathic medicine who is a graduate of a medical school located in the United States or Canada shall submit to the board, through its secretary-treasurer, proof that the applicant has received:

(1) The degree of doctor of medicine from a medical school which at the time of the applicant's graduation was accredited by the Liaison Committee on Medical Education or the Committee for the Accreditation of Canadian Medical Schools, or the degree of doctor of osteopathic medicine from an osteopathic school which at the time of the applicant's graduation was accredited by the Bureau of Professional Education of the American Osteopathic Association;

(2) One year of postgraduate training in allopathic or osteopathic medicine approved by the board; and

(3) Six months of postgraduate training in homeopathy.

(b) The board may take such further evidence and require such other documents or proof of qualification as in its discretion may be deemed proper.

(c) If it appears that the applicant is not of good moral character or reputation or that any credential submitted is false, the applicant may be rejected.

§ -35 Oral examination. If required by the board, an applicant for a license to practice homeopathic medicine shall appear personally and pass an oral examination. The board may employ specialists and other consultants or examining services in conducting any examination required by the board.

§ -36 Reexamination. If an applicant fails in a first examination, the applicant may be reexamined after six months. If the applicant fails in a second examination, the applicant may not be reexamined within less than one year after the date of the second examination. Before taking a third examination, the applicant shall furnish proof satisfactory to the board of one year of additional training in homeopathy after the second examination. If an applicant fails three consecutive examinations, the applicant must show the board by clear and convincing evidence that extraordinary circumstances justify permitting the applicant to be reexamined again.

§ -37 Applicant who is a graduate of foreign medical school: proof of qualification; examination. (a) An applicant for a license to practice homeopathic medicine who is a graduate of a foreign medical school shall submit to the board through its secretary-treasurer proof that the applicant:

(1) Is a citizen of the United States, or is lawfully entitled to remain and work in the United States;

(2) Has received the degree of doctor of medicine or its equivalent, as determined by the board, from a foreign medical school recognized by the Educational Commission for Foreign Medical Graduates;

(3) Has completed three years of postgraduate training satisfactory to the board;

(4) Has completed an additional six months of postgraduate training in homeopathic medicine;

(5) Has received the standard certificate of the Educational Commission for Foreign Medical Graduates; and

(6) Has passed all parts of the Federation Licensing Examination, or has received a written statement from the Educational Commission for Foreign Medical Graduates that the applicant has passed the examination given by the Commission.

(b) The board may take such further evidence and require such further proof of the professional and moral qualifications of the applicant as in its discretion may be deemed proper.

(c) If the applicant is a diplomate of an approved specialty board recognized by the board, the board may waive their equivalents under subsection (a).

(d) Before issuance of a license to practice homeopathic medicine, the applicant who presents the proof required by subsection (a) shall appear personally before the board and satisfactorily pass a written or oral examination, or both, as to the applicant's qualifications to practice homeopathic medicine.

§ -38 Reciprocity. The board, in its discretion, may license an applicant who holds a valid license or certificate issued to the applicant by the homeopathic medical examining board of the District of Columbia or of any state or territory of the United States, provided that:

(1) The legal requirements of the homeopathic medical examining board, at the time of issuing the license or certificate, were in no degree or particular less than those of this State at the time the license or certificate was issued;

(2) The applicant is of good moral character and reputation;

(3) The applicant passes an oral examination, where required by the board; and

(4) The applicant furnishes to the board such other proof of qualifications, professional or moral, as the board may require.

§ -39 Denial of license; notification; appeal; records of issuance and denial of licenses. (a) The board may deny an application for a license to practice homeopathic medicine for any violation of the provisions of this chapter or the rules adopted by the board.

(b) The board shall notify an applicant of any deficiency which prevents any further action on the applicant's application or results in the denial of the application. The applicant may respond in writing to the board concerning any deficiency and, if the applicant does so, the board shall respond in writing to the contentions of the applicant.

(c) An unsuccessful applicant may appeal to the circuit court to review the action of the board within thirty days after the date of the rejection of the applicant's application by the board. Upon appeal the applicant has the burden to show that the action of the board is erroneous or unlawful.

(d) The board shall maintain records pertaining to applicants to whom licenses have been issued or denied. The records shall be open to the public and shall contain:

(1) The name of each applicant;

(2) The name of the school granting the diploma;

(3) The date of the diploma;

(4) The date of issuance or denial of the license; and

(5) The business address of the applicant.

§ -40 Advanced practitioners of homeopathy: certification; qualifications; authority. (a) The board may grant a certificate as an advanced practitioner of homeopathy to a person who has completed an educational program designed to prepare the person to:

(1) Perform designated acts of medical diagnosis;

(2) Prescribe therapeutic or corrective measures; and

(3) Prescribe substances used in homeopathic medicine.

(b) An advanced practitioner of homeopathy may engage in selected medical diagnosis and treatment and prescribe substances which are contained in the Homeopathic Pharmacopeia of the United States, pursuant to a protocol approved by a supervising homeopathic physician. A protocol must not include, and an advanced practitioner of homeopathy shall not engage in, any diagnosis, treatment, or other conduct which the practitioner is not qualified to perform.

(c) As used in this section, "protocol" means a written agreement between a homeopathic physician and an advanced practitioner of homeopathy which sets forth matters including the:

(1) Patients which the advanced practitioner of homeopathy may serve;

(2) Specific substances used in homeopathic medicine which the advanced practitioner of homeopathy may prescribe; and

(3) Conditions under which the advanced practitioner of homeopathy must directly refer the patient to the homeopathic physician.

§ -41 Advanced practitioners of homeopathy: rules of board. The board shall adopt rules:

(1) Specifying the training, education, and experience necessary for certification as an advanced practitioner of homeopathy;

(2) Delineating the authorized scope of practice of an advanced practitioner of homeopathy;

(3) Establishing the procedure for application for certification as an advanced practitioner of homeopathy;

(4) Establishing the duration, renewal, and termination of certificates for advanced practitioners of homeopathy;

(5) Establishing requirements for the continuing education of advanced practitioners of homeopathy; and

(6) Delineating the grounds and procedures respecting disciplinary actions against advanced practitioners of homeopathy.

§ -42 Homeopathic assistant: certification; authorized services; supervising homeopathic physician. (a) The board may issue a certificate as a homeopathic assistant to an applicant who is qualified under the rules of the board to perform homeopathic services under the supervision of a supervising homeopathic physician. The application for the certificate shall be cosigned by the supervising homeopathic physician, and the certificate is valid only so long as that supervising homeopathic physician employs and supervises the homeopathic assistant.

(b) A homeopathic assistant may perform such homeopathic services as the homeopathic assistant is authorized to perform under the terms of the certificate issued to the homeopathic assistant by the board, if the services are performed under the supervision and control of the supervising homeopathic physician.

(c) A supervising homeopathic physician shall not cosign for, employ, or supervise more than five homeopathic assistants at the same time.

§ -43 Homeopathic assistant; rules of board. The board shall adopt rules regarding the certification of a homeopathic assistant, including, but not limited to:

(1) The educational and other qualifications of applicants;

(2) The required academic program for applicants;

(3) The procedures for applications for and the issuance of certificates;

(4) The tests or examinations of applicants by the board;

(5) The medical services which a homeopathic assistant may perform, except that the homeopathic assistant may not perform those specific functions and duties delegated or restricted by law to persons licensed as dentists, chiropractors, podiatric physicians, optometrists, or hearing aid dealers and fitters;

(6) The duration, renewal, and termination of certificates;

(7) The grounds and procedures respecting disciplinary actions against homeopathic assistants;

(8) The supervision of a homeopathic assistant by a supervising homeopathic physician; and

(9) The establishment of requirements for the continuing education of homeopathic assistants.

§ -44 Temporary, special, and restricted licenses: purposes; issuance; revocation. (a) The board may issue a temporary license, to be effective not more than six months after issuance, to any homeopathic physician who is eligible for a permanent license in the State and who also is of good moral character and reputation. The purpose of the temporary license is to enable an eligible homeopathic physician to serve as a substitute for a homeopathic physician who is licensed to practice homeopathic medicine in the State, and who is absent from a practice for reasons deemed sufficient by the board. A temporary license is not renewable.

(b) The board may also issue a special license to a licensed homeopathic physician of another state to come into the State to care for or assist in the treatment of the homeopathic physician's own patients in association with a physician licensed in this State. A special license issued under the provisions of this subsection is limited to the care of a specific patient.

(c) The board may also issue a restricted license for a specified period if the board determines the applicant needs supervision or restriction.

(d) A person who is licensed pursuant to subsection (a), (b), or (c) shall be deemed to have given consent to the revocation of the license at any time by the board for any of the grounds provided in this chapter for the revocation of a license.

§ -45 Limited license for resident homeopathic physician in postgraduate program of clinical training. (a) The board may issue to a qualified applicant a limited license to practice homeopathic medicine as a resident homeopathic physician in a postgraduate program of clinical training if:

(1) The applicant is a graduate of an accredited medical school in the United States or Canada or is a graduate of a foreign medical school recognized by the Educational Commission for Foreign Medical Graduates;

(2) The applicant is a citizen of the United States or is lawfully entitled to remain and work in the United States;

(3) The applicant has completed one year of supervised clinical training approved by the board; and

(4) The board approves the program of clinical training and the medical school or other institution sponsoring the program provides the board with written confirmation that the applicant has been appointed to a position in the program.

(b) In addition to the requirements of subsection (a), an applicant who is a graduate of a foreign medical school must have received the standard certificate of the Educational Commission for Foreign Medical Graduates.

(c) The board may issue the limited license for not more than one year, but may renew the license.

(d) The holder of the limited license may practice homeopathic medicine only in connection with the holder's duties as a resident physician and shall not engage in the private practice of homeopathic medicine.

(e) A limited license granted under this section may be revoked by the board at any time for any of the grounds set forth in this chapter for the revocation of a license.

§ -46 Renewal: requirements; suspension for failure to submit statement or pay fee; notice to federal government. (a) To renew a license other than a temporary, special, or limited license issued pursuant to this chapter, each person shall, on or before January 1 of each year:

(1) Apply to the board for renewal;

(2) Pay the annual fee for renewal set by the board; and

(3) Submit evidence to the board of the person's completion of the requirements for continuing education.

(b) The board, as a prerequisite for the renewal or restoration of a license other than a temporary, special, or limited license, shall require each holder of a license to comply with the requirements for continuing education adopted by the board.

(c) Any holder who fails to pay the annual fee for renewal shall be given a period of sixty days in which to pay the fee and submit the statement, and, failing to do so, automatically forfeits the right to practice homeopathic medicine, and the license to practice homeopathic medicine in the State is automatically suspended. The holder may, within two years after the date the license is suspended, apply for the restoration of the license.

(d) The board shall notify any holder whose license is automatically suspended and send a copy of the notice to the Drug Enforcement Administration of the United States Department of Justice or its successor agency.

§ -47 Fees. (a) Each applicant for a license to practice homeopathic medicine shall:

(1) Pay a fee of $500; and

(2) Pay the cost of obtaining such further evidence and proof of qualifications as the board may require.

(b) Each applicant for a certificate as an advanced practitioner of homeopathy shall:

(1) Pay a fee of $300; and

(2) Pay the cost of obtaining such further evidence and proof of qualifications as the board may require.

(c) Each applicant for a certificate as a homeopathic assistant shall pay a fee of $150.

(d) Each applicant for a license or certificate who fails an examination and who is permitted to be reexamined shall pay a fee not to exceed $400 for each reexamination.

(e) If an applicant for a license or certificate does not appear for examination, for any reason deemed sufficient by the board, the board may, upon request, refund a portion of the application fee not to exceed fifty per cent of the fee. There shall be no refund of the application fee if an applicant appears for examination.

(f) Each applicant for a temporary or limited license shall pay a fee not to exceed $150, as determined by the board, and shall pay a fee of $100 for each renewal of the license.

(g) The fee for the renewal of a license or certificate, as determined by the board, shall not exceed $600 per year and shall be collected for the year in which a physician, advanced practitioner of homeopathy, or homeopathic assistant is licensed or certified.

(h) The fee for the restoration of a suspended license or certificate is twice the amount of the fee for the renewal of a license or certificate at the time of the restoration of the license or certificate.

PART IV. DISCIPLINARY ACTION

§ -51 Grounds for initiating disciplinary action or denying licensure: unprofessional conduct; criminal offenses; suspension or other modification of license in another jurisdiction; surrender of license while under investigation; gross or repeated malpractice; professional incompetence. The following acts, among others, constitute grounds for initiating disciplinary action or denying the issuance of a license:

(1) Unprofessional conduct;

(2) Conviction of:

(A) A violation of any federal or state law regulating the possession, distribution, or use of any controlled substance;

(B) A felony;

(C) Any offense involving moral turpitude; or

(D) Any offense relating to the practice of homeopathic medicine or the ability to practice homeopathic medicine;

(3) The suspension, modification, or limitation of a license to practice any type of medicine by any other jurisdiction;

(4) The surrender of a license to practice any type of medicine or the discontinuance of the practice of medicine while under investigation by any licensing authority, medical facility, facility for the dependent, branch of the armed forces of the United States, insurance company, agency of the federal government, or employer;

(5) Gross or repeated malpractice, which may be evidenced by claims of malpractice settled against a practitioner; or

(6) Professional incompetence.

§ -52 Grounds for initiating disciplinary action or denying licensure: false application for license; misrepresenting disease or injury for personal gain; false advertising; practicing under another name; signing blank prescription form; influencing patient to engage in sexual activity; discouraging second opinion; terminating care without adequate notice. The following acts, among others, constitute grounds for initiating disciplinary action or denying the issuance of a license:

(1) Wilfully making a false or fraudulent statement or submitting a forged or false document in applying for a license to practice homeopathic medicine;

(2) Wilfully representing with the purpose of obtaining compensation or other advantages for oneself or for any other person that a manifestly incurable disease or injury or other manifestly incurable condition can be permanently cured;

(3) Obtaining, maintaining, or renewing, or attempting to obtain, maintain, or renew a license to practice homeopathic medicine by bribery, fraud, or misrepresentation, or by any false, misleading, inaccurate, or incomplete statement;

(4) Advertising the practice of homeopathic medicine in a false, deceptive, or misleading manner;

(5) Practicing or attempting to practice homeopathic medicine under a name other than the name under which one is licensed;

(6) Signing a blank prescription form;

(7) Influencing a patient in order to engage in sexual activity with the patient or another person;

(8) Attempting directly or indirectly, by way of intimidation, coercion, or deception, to obtain or retain a patient or to discourage a patient from obtaining a second opinion; or

(9) Terminating the medical care of a patient without giving adequate notice or making other arrangements for the continued care of the patient.

§ -53 Grounds for initiating disciplinary action or denying licensure: accepting compensation to influence evaluation or treatment; inappropriate division of fees; charging for services not rendered; aiding practice by unlicensed person; advertising services of unlicensed person; delegating responsibility to unqualified person; failing to disclose conflict of interest. The following acts, among others, constitute grounds for initiating disciplinary action or denying the issuance of a license:

(1) Directly or indirectly receiving from any person any fee, commission, rebate, or other form of compensation which tends or is intended to influence the physician's objective evaluation or treatment of a patient;

(2) Dividing a fee between homeopathic physicians, unless the patient is informed of the division of fees and the division is made in proportion to the services personally performed and the responsibility assumed by each homeopathic physician;

(3) Charging for visits to the homeopathic physician's office which did not occur or for services which were not rendered or documented in the records of the patient;

(4) Employing, directly or indirectly, any suspended or unlicensed person in the practice of homeopathic medicine, or the aiding, abetting, or assisting of any unlicensed person to practice homeopathic medicine contrary to the provisions of this chapter or the rules adopted by the board;

(5) Advertising the services of an unlicensed person in the practice of homeopathic medicine;

(6) Delegating responsibility for the care of a patient to a person whom the homeopathic physician knows, or has reason to know, is not qualified to undertake that responsibility; or

(7) Failing to disclose to a patient any financial or other conflict of interest affecting the care of the patient.

§ -54 Grounds for initiating disciplinary action or denying licensure: inability to practice; deceptive conduct; harmful medical practices; unlawful administration of controlled substance; unlawful abortion; practicing beyond scope of license; practicing experimental medicine without consent of patient; failure to exercise skill or diligence. The following acts, among others, constitute grounds for initiating disciplinary action or denying the issuance of a license:

(1) Inability to practice homeopathic medicine with reasonable skill and safety because of an illness, a mental or physical condition, or the use of alcohol, drugs, narcotics, or any other addictive substance;

(2) Engaging in any:

(A) Professional conduct which is intended to deceive or which the board by rule has determined is unethical;

(B) Medical practice harmful to the public or any conduct detrimental to the public health, safety, or morals which does not constitute gross or repeated malpractice or professional incompetence;

(C) Administering, dispensing, or prescribing any controlled substance, except as authorized by law;

(D) Performing, assisting, or advising an unlawful abortion or in the injection of any liquid substance into the human body to cause an abortion;

(E) Practicing or offering to practice beyond the scope permitted by law, or performing services which the homeopathic physician knows or has reason to know the homeopathic physician is not competent to perform;

(F) Performing any procedure without first obtaining the informed consent of the patient or the patient's family or prescribing any therapy which by the current standards of the practice of homeopathic medicine is experimental; or

(G) Continued failure to exercise the skill or diligence or use the methods ordinarily exercised under the same circumstances by physicians in good standing who practice homeopathy and electrodiagnosis.

§ -55 Grounds for initiating disciplinary action or denying licensure: wilful disclosure of privileged communication; wilful failure to comply with statute or rule governing practice. The following acts, among others, constitute grounds for initiating disciplinary action or denying the issuance of a license:

(1) Wilful disclosure of a communication privileged under a statute or court order;

(2) Wilful failure to comply with any provision of this chapter, rule, subpoena, or order of the board or with any court order relating to this chapter; or

(3) Wilful failure to perform any statutory or other legal obligation imposed upon a licensed homeopathic physician.

§ -56 Filing of complaint; reporting of disciplinary action and findings. (a) Any person who becomes aware that a person practicing medicine in this State has, is, or is about to become engaged in conduct which constitutes grounds for initiating disciplinary action may file a written complaint with the board.

(b) Any medical society or medical facility or facility for the dependent licensed in this State shall report to the board the initiation and outcome of any disciplinary action against any homeopathic physician concerning the care of a patient or the competency of the physician.

(c) The clerk of every court shall report to the board any finding, judgment, or other determination of the court that a homeopathic physician:

(1) Is mentally ill;

(2) Is mentally incompetent;

(3) Has been convicted of a felony or any law relating to controlled substances or dangerous drugs;

(4) Is guilty of abuse or fraud under any state or federal program providing medical assistance; or

(5) Is liable for damages for malpractice or negligence.

§ -57 Review of complaint; composition of committee; investigation; board to transmit certain complaints to attorney general; board review of committee's findings. (a) The board or a committee of its members designated by the board shall review every complaint filed with the board and conduct an investigation to determine whether there is a reasonable basis for compelling a homeopathic physician to take a mental or physical examination or an examination of the homeopathic physician's competence to practice homeopathic medicine.

(b) If a committee is designated, it shall be composed of at least three members of the board, at least one of whom is a licensed homeopathic physician.

(c) If, from the complaint or from other official records, it appears that the complaint is not frivolous and the complaint charges gross or repeated malpractice, the board shall transmit the original complaint, along with further facts or information derived from its own review, to the attorney general.

(d) Following the investigation, the committee shall present its evaluation and recommendations to the board. The board shall review the committee's findings to determine whether to take any further action, but a member of the board who participated in the investigation may not participate in this review or in any subsequent hearing or action taken by the board.

§ -58 Investigation of complaint by attorney general; determination of board concerning further action. (a) The attorney general shall conduct an investigation of each complaint transmitted by the board to determine whether the complaint warrants proceedings for modification, suspension, or revocation of license. If the attorney general determines that further proceedings are warranted, the attorney general shall report the results of the investigation together with any recommendation to the board in a manner which does not violate the right of the person charged in the complaint to due process in any later hearing before the board.

(b) The board shall promptly make a determination with respect to each complaint reported to it by the attorney general as to what action shall be pursued. The board shall:

(1) Dismiss the complaint; or

(2) Proceed with appropriate disciplinary action.

§ -59 Mental or physical examination; examination of competence to practice. (a) If the board or its investigative committee has reason to believe that the conduct of any homeopathic physician has raised a reasonable question as to the homeopathic physician's competence to practice medicine with reasonable skill and safety to patients, the board or investigative committee may order the homeopathic physician to undergo:

(1) A mental or physical examination; or

(2) An examination of the homeopathic physician's competence to practice homeopathic medicine,

by physicians or others designated by the board to assist the board in determining the fitness of the homeopathic physician to practice homeopathic medicine.

(b) For the purposes of this section:

(1) Every homeopathic physician who applies for a license or is licensed under this chapter shall be deemed to have given the homeopathic physician's consent to submit to a mental or physical examination or an examination of the homeopathic physician's competence to practice homeopathic medicine when directed to do so in writing by the board or an investigative committee of the board; and

(2) The testimony or reports of the examining physicians are not privileged communications.

(c) Except in extraordinary circumstances, as determined by the board, the failure of a homeopathic physician licensed under this chapter to submit to an examination when directed as provided in this section constitutes an admission of the charges against the homeopathic physician.

§ -60 Examination to determine medical competence. If the board has reason to believe that the conduct of any homeopathic physician has raised a reasonable question as to the homeopathic physician's competence to practice homeopathic medicine with reasonable skill and safety to patients, the board may order an examination of the homeopathic physician to determine the homeopathic physician's fitness to practice homeopathic medicine. When such action is taken, the reasons for the action shall be documented and be available to the homeopathic physician being examined.

§ -61 Limitation of time for completion of examination if board issues order for summary suspension of license. If the board issues an order summarily suspending the license of a homeopathic physician pending proceedings for disciplinary action and requires the homeopathic physician to submit to a mental or physical examination or an examination of the homeopathic physician's competence to practice homeopathic medicine, the examination shall be conducted and the results obtained not later than sixty days after the board issues its order.

§ -62 Stay of summary suspension by court prohibited. If the board issues an order summarily suspending the license of a homeopathic physician pending proceedings for disciplinary action, the court shall not stay that order.

§ -63 Injunctive relief. (a) In addition to any other remedy provided by law, the board, through its chair or secretary-treasurer or the attorney general, may apply to any court of competent jurisdiction to:

(1) Enjoin any prohibited act or other conduct of a homeopathic physician which is harmful to the public;

(2) Enjoin any person who is not licensed under this chapter from practicing homeopathic medicine; or

(3) Limit a homeopathic physician's practice or suspend the homeopathic physician's license to practice homeopathic medicine.

(b) The court in a proper case may issue a temporary restraining order or a preliminary injunction for the purposes of subsection (a):

(1) Without proof of actual damage sustained by any person;

(2) Without relieving any person from criminal prosecution for engaging in the practice of homeopathic medicine without a license; and

(3) Pending proceedings for disciplinary action by the board.

§ -64 Notice of charges and formal hearing. (a) If, after an investigation by a committee or on its own initiative, the board decides to proceed with disciplinary action, it shall bring charges against a licensed homeopathic physician and fix a time and place for a formal hearing. The board shall notify the homeopathic physician of the charges brought against the homeopathic physician, the time and place set for the hearing, and the possible sanctions.

(b) The board, a hearing officer, or a committee of the members of the board shall hold the formal hearing on the charges at the time and place designated in the notification. If the hearing is before a committee, at least one member of the board who is not a physician shall participate in the hearing and in the final recommendation of the committee to the board.

§ -65 Service of process. (a) Service of process made under this chapter shall be either personal or by registered or certified mail with return receipt requested, addressed to the homeopathic physician at the homeopathic physician's last known address. If personal service cannot be made and if notice by mail is returned undelivered, the secretary-treasurer of the board shall cause notice to be published once a week for four consecutive weeks in a newspaper published in the county of the homeopathic physician's last known address or, if no newspaper is published in that county, then in a newspaper widely distributed in that county.

(b) Proof of service of process or publication of notice made under this chapter shall be filed with the board and recorded in the minutes of the board.

§ -66 Rules of evidence not binding; requirements for proof. In any disciplinary hearing:

(1) The board, a panel of the members of the board or a hearing officer is not bound by formal rules of evidence;

(2) Proof of actual injury need not be established; and

(3) A certified copy of the record of a court or a licensing agency showing a conviction or plea of nolo contendere or the suspension, revocation, limitation, modification, denial, or surrender of a license to practice homeopathic medicine is conclusive evidence of its occurrence.

§ -67 Final order of board; disciplinary actions available to board. (a) Any member of the board who was not a member of the investigative committee, if one was appointed, may participate in the final order of the board. If the board, after a formal hearing, determines that a violation of this chapter or the rules adopted by the board has occurred, it shall issue and serve on the person charged an order, in writing, containing its findings and any sanctions imposed by the board. If the board determines that no violation has occurred, it shall dismiss the charges, in writing, and notify the person that the charges have been dismissed.

(b) If the board finds that a violation has occurred, it may by order:

(1) Place the person on probation for a specified period on any of the conditions specified in the order;

(2) Administer to the person a public reprimand;

(3) Limit the practice of the person or exclude a method of treatment from the scope of the person's practice;

(4) Suspend the license of the person for a specified period or until further order of the board;

(5) Revoke the license of the person to practice homeopathic medicine;

(6) Require the person to participate in a program to correct a dependence upon alcohol or a controlled substance, or any other impairment;

(7) Require supervision of the person's practice;

(8) Impose an administrative fine not to exceed $10,000;

(9) Require the person to perform community service without compensation;

(10) Require the person to take a physical or mental examination or an examination of the person's competence to practice homeopathic medicine;

(11) Require the person to fulfill certain training or educational requirements; or

(12) Require the person to pay the costs of the investigation and hearing.

§ -68 Judicial review of board's final order; stay of order pending final determination prohibited. (a) Any person aggrieved by a final order of the board is entitled to judicial review of the board's order.

(b) Every order of the board which limits the practice of homeopathic medicine or suspends or revokes a license is effective from the date the secretary-treasurer of the board certifies the order until the date the order is modified or reversed by a final judgment of the court. The court shall not stay the order of the board pending a final determination by the court.

(c) The court shall give a petition for judicial review of the board's order priority over other civil matters which are not expressly given priority by law.

§ -69 Restoration of license. (a) Any person:

(1) Whose practice of homeopathic medicine has been limited; or

(2) Whose license to practice homeopathic medicine has been suspended until further order or revoked, by an order of the board

may apply to the board for removal of the limitation or restoration of the person's license.

(b) In hearing the application, the board or a committee of members of the board:

(1) May require the applicant to submit to a mental or physical examination or an examination of the applicant's competence to practice homeopathic medicine by physicians or other persons whom it designates and submit such other evidence of changed conditions and of fitness as it deems proper;

(2) Shall determine whether under all the circumstances the time of the application is reasonable; or

(3) May deny the application or modify or rescind its order as it deems the evidence and the public safety warrants.

(c) The applicant has the burden of proving by clear and convincing evidence that the requirements for restoration of the license or removal of the limitation have been met.

(d) The board shall not restore a license unless it is satisfied that the applicant has complied with all of the terms and conditions set forth in the final order of the board and that the applicant is capable of practicing homeopathic medicine with reasonable skill and safety to patients.

(e) To restore a license that has been revoked by the board, a person must apply for a license and take an examination as though the person had never been licensed under this chapter.

§ -70 Immunity from civil liability. (a) Any person who furnishes information to the board, in good faith and without malicious intent in accordance with this chapter, concerning a person who is licensed or certified or applies for a license or certificate under this chapter, is immune from civil liability for furnishing that information.

(b) The board and its members, staff, counsel, investigators, experts, committees, panels, hearing officers, and consultants are immune from civil liability for any decision or action taken in good faith and without malicious intent in response to information received by the board.

(c) The board and any of its members are immune from civil liability for disseminating information concerning a person who is licensed or certified or applies for a license or certificate under this chapter to the attorney general or any board or agency of the State, any hospital, medical society, insurer, employer, patient or the person's family, or law enforcement agency.

§ -71 Procedural requirements same for disciplinary action taken by hearing officer or panel; decision of hearing officer or panel relating to administrative fine is final decision in contested case. (a) Any disciplinary action taken by a hearing officer or panel under section    -16 is subject to the same procedural requirements which apply to disciplinary actions taken by the board, and the officer or panel has the powers and duties given to the board.

(b) A decision of a hearing officer or panel relating to the imposition of an administrative fine is a final decision in a contested case.

§ -72 Disciplinary action does not preclude limitation or termination of privileges of licensee or holder of certificate or criminal prosecution; immunity from civil liability. The filing and review of a complaint, its dismissal without further action or its transmittal to the attorney general, and any subsequent disposition by the board, the attorney general, or any reviewing court do not preclude:

(1) Any measure by a hospital or other institution or medical society to limit or terminate the privileges of a homeopathic physician, advanced practitioner of homeopathy or homeopathic assistant according to its rules or the custom of the profession. No civil liability attaches to any such action taken without malice even if the ultimate disposition of the complaint is in favor of the homeopathic physician, advanced practitioner of homeopathy, or homeopathic assistant; or

(2) Any appropriate criminal prosecution by the attorney general or a prosecuting attorney based upon the same or other facts.

§ -73 Confidentiality of records and information obtained during investigation; limitations on disclosure. (a) Any records or information obtained during an investigation by the board and any record of the investigation are confidential until the investigation is completed. Upon completion of the investigation, the information and records are public records if:

(1) Disciplinary action is imposed by the board as a result of the investigation; or

(2) The person regarding whom the investigation was made submits a written request to the board asking that the information and records be made public records.

(b) The board may provide any record or information described in subsection (a) to any other licensing board or agency, including a law enforcement agency, which is investigating a person who is licensed pursuant to this chapter.

§ -74 Prosecution of violators; employment of investigators. The board is authorized to prosecute all persons guilty of a violation of this chapter and may employ investigators and such other assistants as may be necessary to carry out the provisions of this chapter, but any expenses so incurred shall not be paid out of the general fund.

§ -75 Injunctive relief against person practicing without license or certificate. (a) The board through its chair or secretary-treasurer or the attorney general may maintain in any court of competent jurisdiction a suit for an injunction against any person or persons practicing homeopathic medicine without a license or certificate.

(b) The injunction:

(1) May be issued without proof of actual damage sustained by any person, this provision being a preventive as well as a punitive measure; and

(2) Does not relieve the person from criminal prosecution for practicing without a license or certificate.

§ -76 Sufficiency of allegations of complaint seeking injunctive relief. In seeking injunctive relief against any person for an alleged violation of this chapter by practicing homeopathic medicine without a license or certificate, it is sufficient to allege that the person did, upon a certain day, and in this State, engage in the practice of homeopathic medicine without having a license or certificate to do so, without alleging any further or more particular facts concerning the matter.

§ -77 Penalty for certain violations. A person who:

(1) Presents to the board as the person's own the diploma, license, certificate or credentials of another;

(2) Gives either false or forged evidence of any kind to the board;

(3) Practices homeopathic medicine under a false or assumed name; or

(4) Practices homeopathic medicine without being licensed or certified under this chapter,

shall be guilty of a class C felony.

§ -78 Penalty for practicing without license or certificate. A person who practices homeopathic medicine without a license or certificate issued pursuant to this chapter shall be guilty of a class C felony."

SECTION 2. This Act shall take effect upon its approval.

INTRODUCED BY:

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