72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 1803
 
                         Senate Bill 373
 
Sponsored by Senator HARPER; Senator FISHER, Representative KRUSE
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Authorizes circuit court to stay disciplinary order of Oregon
State Board of Nursing under certain circumstances. Modifies
basis for disciplining licensee or applicant. Requires board to
provide subject of investigation with summary of investigation.
Requires timely completion of investigation and issuance of final
order or closure letter. Allows licensee or applicant to receive
all non-privileged information in investigation file. Prohibits
compelled testimony of licensee at contested case hearing. Opens
hearing to public if requested by licensee.
 
                        A BILL FOR AN ACT
Relating to disciplinary authority of the Oregon State Board of
  Nursing; creating new provisions; and amending ORS 676.165,
  676.175, 678.111, 678.126 and 678.780.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + Section 2 of this 2003 Act is added to and made
a part of ORS 678.010 to 678.410. + }
  SECTION 2.  { + A licensee whose license has been revoked or
suspended by an order of the Oregon State Board of Nursing and
who has appealed the order may seek a stay of the order from the
circuit court of the county in which the licensee resides, or of
Marion County if the person is not a resident of Oregon. The
court shall grant the requested stay upon a showing by the
licensee by clear and convincing evidence that the continued
practice of nursing by the the licensee poses no imminent threat
to the public. + }
  SECTION 3. ORS 678.111 is amended to read:
  678.111. In the manner prescribed in ORS 183.310 to 183.550 for
a contested case:
  (1) Issuance of the license to practice nursing, whether by
examination or by indorsement, of any person may be refused or
the license may be revoked or suspended or the licensee may be
placed on probation for a period specified by the Oregon State
Board of Nursing and subject to such condition as the board may
impose or may be issued a limited license or may be reprimanded
or censured by the board, for any of the following causes:
  (a) Conviction of the licensee of crime where such crime bears
demonstrable relationship to the practice of nursing. A copy of
the record of such conviction, certified to by the clerk of the
court entering the conviction, shall be conclusive evidence of
the conviction.
  (b) Gross incompetence or gross negligence of the licensee in
the practice of nursing at the level for which the licensee is
licensed.
  (c) Any willful fraud or misrepresentation in applying for or
procuring a license or renewal thereof.
  (d) Fraud or deceit of the licensee in the practice of nursing
or in admission to such practice.
  (e) Use of any controlled substance or intoxicating liquor to
an extent or in a manner dangerous or injurious to the licensee
or others or to an extent that such use impairs the ability to
conduct safely the practice for which the licensee is licensed.
  (f) Conduct   { - derogatory to the standards of nursing - }
 { + demonstrating that the applicant or licensee is incapable of
practicing nursing in a safe manner or has failed to meet the
minimal standards of competency for a nurse + }.
  (g) Violation of any provision of ORS 678.010 to 678.445 or
rules adopted thereunder.
  (h) Revocation or suspension of a license to practice nursing
by any state or territory of the United States, or any foreign
jurisdiction authorized to issue nursing credentials whether or
not that license or credential was relied upon in issuing that
license in this state. A certified copy of the order of
revocation or suspension shall be conclusive evidence of such
revocation or suspension.
  (i)   { - Physical or mental condition that makes the licensee
unable to conduct safely the practice for which the licensee is
licensed. - }  { +  Insanity or mental disease as evidenced by an
adjudication or voluntary commitment to an institution for the
treatment of a mental disease that affects the ability of the
licensee to safely practice nursing, or as determined by an
examination conducted by three impartial psychiatrists retained
by the board. + }
  (j) Violation of any  { + material + } condition imposed by the
board when issuing a limited license.
   { +  (k) Incapacity to practice nursing. If the board has
evidence indicating incapacity, the board may order a licensee to
have a standardized competency examination. The licensee shall
have access to the results of the examination and to the criteria
used for evaluating and grading the examination. If the
examination is given orally, the licensee shall have the right to
have the examination recorded. + }
  (2) A certificate of special competence may be denied or
suspended or revoked for the reasons stated in subsection (1) of
this section.
  (3) A license or certificate in inactive status may be denied
or suspended or revoked for the reasons stated in subsection (1)
of this section.
  (4) A license or certificate in retired status may be denied or
suspended or revoked for any cause stated in subsection (1) of
this section.
  SECTION 4. ORS 678.126 is amended to read:
  678.126. (1) Any information that the Oregon State Board of
Nursing obtains pursuant to ORS 678.021, 678.111, 678.113,
678.123, 678.135 or 678.442 is confidential as provided under ORS
676.175.
  (2) Upon receipt of a complaint under ORS 678.010 to 678.410 or
678.442, the Oregon State Board of Nursing shall conduct an
investigation as described under ORS 676.165.
   { +  (3) If a licensee who is the subject of an investigation
or complaint is to appear before members of the board
investigating the matter or complaint, the board must provide the
licensee with a current summary of the complaint or the matter
being investigated not less than 15 working days prior to the
date the licensee is to appear. At the time the summary of the
complaint or the matter being investigated is provided, the board
must also provide the licensee a current summary of documents or
alleged facts that the board acquired as a result of the
investigation.  The name of the complainant or other information
that reasonably may be used to identify the complainant may be
withheld from the licensee. + }
    { - (3) - }   { + (4) + } Any person, facility, licensee or
association that reports or provides information to the board
under ORS 678.021, 678.111, 678.113, 678.123, 678.135 or 678.442
in good faith shall not be subject to an action for civil damages
as a result thereof.
  SECTION 5. ORS 676.165 is amended to read:
  676.165. (1) Upon receipt of a complaint by any person against
a licensee or applicant, a health professional regulatory board
shall assign one or more persons to act as investigator of the
complaint.
  (2) The investigator shall collect evidence and interview
witnesses and shall make a report to the board. The investigator
shall have all investigatory powers possessed by the board.
  (3) The report to the board shall describe the evidence
gathered, the results of witness interviews and any other
information considered in preparing the report of the
investigator. The investigator shall consider, and include in the
report, any disciplinary history of the licensee or applicant
with the board.
  (4) The investigator shall make the report to the board not
later than 120 days after the board receives the complaint.
However, the board may  { + petition the circuit court of the
county in which the licensee or applicant who is the subject of
the investigation resides, or of Marion County if the licensee or
applicant is not a resident of Oregon, to + } extend the time for
making the report by up to 30 days for just cause.  { + Just
cause for seeking an extension must be demonstrated by clear and
convincing evidence. + }   { - The board may grant more than one
extension of time. - }
   { +  (5) If an investigation does not result in disciplinary
action, within 180 days of receiving the complaint the board must
issue to the subject of the investigation a letter confirming
that the investigation has been closed. In all cases, a final
order or closure letter must be issued within one year of the
date the board received the complaint. Any complaint that has not
been resolved by final order or closure letter within one year of
receipt by the board is deemed to have been closed as a matter of
law. + }
    { - (5) - }   { + (6) + } Investigatory information obtained
by an investigator and the report issued by the investigator
shall be exempt from public disclosure.
  SECTION 6. ORS 676.175 is amended to read:
  676.175. (1) A health professional regulatory board shall keep
confidential and not disclose to the public any information
obtained by the board as part of an investigation of a licensee
or applicant, including complaints concerning licensee or
applicant conduct and information permitting the identification
of complainants, licensees or applicants. However, the board may
disclose information obtained in the course of an investigation
of a licensee or applicant to the extent necessary to conduct a
full and proper investigation.
  (2) Notwithstanding subsection (1) of this section, if a health
professional regulatory board votes not to issue a notice of
intent to impose a disciplinary sanction:
  (a) The board shall disclose information obtained as part of an
investigation of an applicant or licensee if the person
requesting the information demonstrates by clear and convincing
evidence that the public interest in disclosure outweighs other
interests in nondisclosure, including but not limited to the
public interest in nondisclosure.
  (b) The board may disclose to a complainant a written summary
of information obtained as part of an investigation of an
applicant or licensee resulting from the complaint to the extent
the board determines necessary to explain the reasons for the
board's decision. An applicant or licensee may review and obtain
a copy of any written summary of information disclosed to a
complainant by the board after the board has deleted any
information that could reasonably be used to identify the
complainant.
  (3)(a) A health professional regulatory board shall disclose:
  (A) A notice of intent to impose a disciplinary sanction
against a licensee or applicant that has been issued by vote of
the board;
  (B) A final order that results from the board's notice of
intent to impose a disciplinary sanction;
  (C) An emergency suspension order;
  (D) A consent order or stipulated agreement that involves
licensee or applicant conduct; and
  (E) Information to further an investigation into board conduct
under ORS 192.685.
  (b) A health professional regulatory board may make the
information required to be disclosed under paragraph (a)(A) to
(D) of this subsection available in electronic form, accessible
by use of a personal computer or similar technology that provides
direct electronic access to the information.
  (4) If a notice of intent to impose a disciplinary sanction has
been issued by vote of a health professional regulatory board, a
final order that results from the board's notice of intent to
impose a disciplinary sanction, an emergency suspension order or
a consent order or stipulated agreement that involves licensee or
applicant conduct shall summarize the factual basis for the
board's disposition of the matter.
  (5) A health professional regulatory board record or order, or
any part thereof, obtained as part of or resulting from an
investigation, contested case proceeding, consent order or
stipulated agreement, is not admissible as evidence and may not
preclude an issue or claim in any civil proceeding except in a
proceeding between the board and the licensee or applicant as
otherwise allowed by law.
  (6)(a) Notwithstanding subsection (1) of this section, it is
not disclosure to the public for a board to permit other public
officials and members of the press to attend executive sessions
where information obtained as part of an investigation is
discussed. Public officials and members of the press attending
such executive sessions shall not disclose information obtained
as part of an investigation to any other member of the public.
  (b) For purposes of this subsection, 'public official ' means a
member or member-elect, or any member of the staff or an
employee, of a public entity as defined by ORS 676.177.
   { +  (7) For purposes of this section, the licensee or
applicant who is the subject of the investigation is not a member
of the public and upon request by the licensee or applicant the
health professional regulatory board must disclose all
non-privileged information in the investigation file to the
licensee or applicant requesting disclosure. + }
  SECTION 7. ORS 678.780 is amended to read:
  678.780. (1) The sanctions authorized by subsection (2) of this
section may be imposed upon the following grounds:
  (a) The employment of fraud or deception in applying for or
obtaining a nursing home administrator's license.
  (b) Engaging in conduct in the course of acting as a nursing
home administrator involving fraud, dishonesty, malfeasance,
cheating or other conduct as the Board of Examiners of Nursing
Home Administrators of the State of Oregon may prohibit by rule.
  (c) Conviction of a crime involving circumstances that relate
to the licensee's fitness to continue practicing as a nursing
home administrator.
 
  (d) Mistake or inadvertence in the issuance of the license by
the board.
  (e) Physical or mental incapacity that presents an unreasonable
risk of harm to the licensee or to the person or property of
others in the course of performing the duties of a nursing home
administrator.
  (f) Use of any controlled substance or intoxicating liquor in a
manner that impairs the licensee's ability to conduct safely the
practice for which the licensee is licensed.
  (g) The licensee has engaged in conduct that would justify
denying a license to an applicant.
  (h) Violation of or noncompliance with any applicable
provisions of ORS 678.710 to 678.780, 678.800 to 678.840 and
678.990 (2) or of any lawful rule or order of the board or
continuous or substantial violations of the rules adopted under
ORS 441.055.
  (i) Discipline imposed by any other licensing body in this or
any other state based on conduct that would be grounds for
discipline under this section or rules adopted by the board.
  (j) Incompetence in performing the duties of a nursing home
administrator as demonstrated by evidence that the licensee
either lacks or did not use the knowledge or skill necessary to
perform the administrator's duties in a minimally adequate
manner.
  (k) Employing or otherwise assisting another person to act as a
nursing home administrator with knowledge that the person does
not hold a valid license to practice as a nursing home
administrator.
  (L) Failure to pay a civil penalty imposed against the licensee
in a timely manner.
  (m) Unprofessional conduct as defined in rules adopted by the
board.
  (2) Subject to ORS 183.310 to 183.550, the board may impose any
or all of the following sanctions:
  (a) Suspend, revoke or refuse to renew any license required by
ORS 678.720.
  (b) A civil penalty not to exceed $1,000.
  (c) Probation, with authority to limit or restrict a license.
  (d) Participation in a treatment program for intoxicating
liquor or controlled substances.
  (3) Hearings under this section must be conducted by a hearing
officer assigned from the Hearing Officer Panel established by
section 3, chapter 849, Oregon Laws 1999.
  (4) Information that the board obtains as part of an
investigation into licensee or applicant conduct or as part of a
contested case proceeding, consent order or stipulated agreement
involving licensee or applicant conduct is confidential as
provided under ORS 676.175.
   { +  (5) A licensee may not be compelled to testify at a
contested case hearing conducted under this section.
  (6) A contested case hearing conducted under this section shall
be open to the public if requested by the licensee who is the
subject of the proceeding. + }
  SECTION 8. ORS 678.780, as amended by section 161, chapter 849,
Oregon Laws 1999, is amended to read:
  678.780. (1) The sanctions authorized by subsection (2) of this
section may be imposed upon the following grounds:
  (a) The employment of fraud or deception in applying for or
obtaining a nursing home administrator's license.
  (b) Engaging in conduct in the course of acting as a nursing
home administrator involving fraud, dishonesty, malfeasance,
cheating or other conduct as the Board of Examiners of Nursing
Home Administrators of the State of Oregon may prohibit by rule.
  (c) Conviction of a crime involving circumstances that relate
to the licensee's fitness to continue practicing as a nursing
home administrator.
  (d) Mistake or inadvertence in the issuance of the license by
the board.
  (e) Physical or mental incapacity that presents an unreasonable
risk of harm to the licensee or to the person or property of
others in the course of performing the duties of a nursing home
administrator.
  (f) Use of any controlled substance or intoxicating liquor in a
manner that impairs the licensee's ability to conduct safely the
practice for which the licensee is licensed.
  (g) The licensee has engaged in conduct that would justify
denying a license to an applicant.
  (h) Violation of or noncompliance with any applicable
provisions of ORS 678.710 to 678.780, 678.800 to 678.840 and
678.990 (2) or of any lawful rule or order of the board or
continuous or substantial violations of the rules adopted under
ORS 441.055.
  (i) Discipline imposed by any other licensing body in this or
any other state based on conduct that would be grounds for
discipline under this section or rules adopted by the board.
  (j) Incompetence in performing the duties of a nursing home
administrator as demonstrated by evidence that the licensee
either lacks or did not use the knowledge or skill necessary to
perform the administrator's duties in a minimally adequate
manner.
  (k) Employing or otherwise assisting another person to act as a
nursing home administrator with knowledge that the person does
not hold a valid license to practice as a nursing home
administrator.
  (L) Failure to pay a civil penalty imposed against the licensee
in a timely manner.
  (m) Unprofessional conduct as defined in rules adopted by the
board.
  (2) Subject to ORS 183.310 to 183.550, the board may impose any
or all of the following sanctions:
  (a) Suspend, revoke or refuse to renew any license required by
ORS 678.720.
  (b) A civil penalty not to exceed $1,000.
  (c) Probation, with authority to limit or restrict a license.
  (d) Participation in a treatment program for intoxicating
liquor or controlled substances.
  (3) Hearings under this section must be conducted by a hearing
officer designated by the board.
  (4) Information that the board obtains as part of an
investigation into licensee or applicant conduct or as part of a
contested case proceeding, consent order or stipulated agreement
involving licensee or applicant conduct is confidential as
provided under ORS 676.175.
   { +  (5) A licensee may not be compelled to testify at a
contested case hearing conducted under this section.
  (6) A contested case hearing held under this section shall be
open to the public if requested by the licensee who is the
subject of the proceeding. + }
  SECTION 9.  { + Section 2 of this 2003 Act and the amendments
to ORS 676.165, 676.175, 678.111, 678.126 and 678.780 by sections
3 to 8 of this 2003 Act apply to all investigations and
disciplinary actions under ORS 678.010 to 678.410 that become
final on or after the effective date of this 2003 Act. + }
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