Chapter 450

AN ACT PROVIDING GREATER CONSUMER PROTECTION POWERS TO THE BOARDS WITHIN THE DIVISION OF PROFESSIONAL LICENSURE.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 13 of the General Laws is hereby amended by inserting after section 9B the following section:-

Section 9C. The members of the boards of registration shall be public employees for the purposes of chapter 258 for all acts or omissions within the scope of their duties as board members.

SECTION 2. Section 61 of chapter 112 of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by inserting after the first paragraph the following 3 paragraphs:-

A board of registration under the supervision of the division of professional licensure may discipline the holder of a license, certificate, registration or authority issued pursuant to this chapter or chapters 141 and 142 if it is determined, after a consent agreement between the parties or after an opportunity for an adjudicatory proceeding conducted pursuant to chapter 30A, that such holder has:

(1) engaged in conduct which places into question the holder's competence to practice the profession including, but not limited to, gross misconduct; practicing the profession fraudulently; practicing his profession beyond the authorized scope of his license, certificate, registration or authority; practicing the profession with gross incompetence; or practicing the profession with negligence on 1 or more than 1 occasion;

(2) engaged in the practice of his profession while the ability to practice was impaired by alcohol or drugs;

(3) violated any law, rule or regulation of the board of registration governing the practice of the profession;

(4) been convicted of a criminal offense which is reasonably related to the practice of the profession;

(5) engaged in dishonesty, fraud or deceit which is reasonably related to the practice of the profession;

(6) knowingly permitted, aided or abetted an unauthorized person in performing activities requiring a license, certificate, registration or authority; or

(7) had a license, certificate, registration or authority issued by another state or territory of the United States, the District of Columbia, or a foreign state or nation with authority to issue such a license, certificate, registration or authority revoked, cancelled, suspended, not renewed or otherwise acted against, or if the holder has been disciplined, if the basis for the action would constitute a basis for disciplinary action in the commonwealth.

Notwithstanding any general or special law to the contrary, a board of registration under the supervision of the division of professional licensure, may by a majority vote and after a consent agreement between the parties or after an opportunity for an adjudicatory proceeding conducted pursuant to chapter 30A, upon determination made that the holder of a license, certificate, registration or authority issued by any such board of registration is subject to discipline based on any provision enumerated in this section, undertake 1 or more of the following actions:-

(1) suspend, revoke, cancel, decline to renew, or place on probation such license, certificate, registration or authority;

(2) reprimand or censure a holder;

(3) assess upon the holder a civil administrative penalty, as determined by the board, not to exceed $100 for a first violation; $500 for a second violation; $1,500 for a third violation; or $2,500 for a fourth or subsequent violation;

(4) require the holder to complete additional education and training as a condition of retention or future consideration of reinstatement of the license, certificate, registration or authority;

(5) require the holder to practice under appropriate supervision for a period of time as determined by the board as a condition of retention or future consideration of reinstatement of the license, certificate, registration or authority;

(6) require the holder to participate in an alcohol or drug rehabilitation program as a condition of retention or future consideration of reinstatement of the license, certificate, registration or authority.

Nothing in this section shall be deemed a limitation on a board's authority to impose such reasonable sanctions as it deems appropriate by the board after a hearing or by a consent agreement. A person sanctioned under this section shall be subject to such other sanctions or punishment provided by law. The boards shall promulgate such rules and regulations not inconsistent with chapter 30A as necessary for the filing of charges and the conduct of proceedings.

SECTION 3. Section 64 of said chapter 112, as so appearing, is hereby amended by striking out, in line 5, the figure "(8)" and inserting in place thereof the following figure:- (7).

SECTION 4. Said section 64 of said chapter 112, as so appearing, is hereby further amended by adding the following sentence:- Where a statute provides that a court other than the supreme judicial court may review a board's action, such review shall be conducted in accordance with the standards of review provided in paragraphs (3) to (7), inclusive, of said section 14 of said chapter 30A.

SECTION 5. Said chapter 112 is hereby further amended by striking out section 65, as so appearing, and inserting in place thereof the following 6 sections:-

Section 65. (a) Whoever continues to practice a trade or profession after his certificate, registration, license or authority to do so has been suspended, revoked or cancelled under section 61, and while such disability continues, shall be punished by a fine of not more than $2,500 or by imprisonment for not more than 6 months, or both.

(b) Notwithstanding any general or special law to the contrary, each board of registration under the supervision of the division of professional licensure and each board of registration under the supervision of the department of public health may, after a consent agreement between the parties or after an opportunity for an adjudicatory proceeding held pursuant to chapter 30A, assess and collect a civil administrative penalty of not more than $1,000 for the first violation and not more than $2,500 for a second or subsequent violation upon a person who practices a trade or profession at a time when his license, certificate, registration or authority to do so has been suspended, revoked or cancelled by the board of registration that issued the license, and upon any person who knowingly practices a trade or profession at a time when his license, certificate, registration or authority to do so has expired; provided, however, that if a licensee has, in accordance with any law and with board regulations, made timely and sufficient application for a renewal, his license shall not expire until his application has been finally determined by the board; provided further, that prior to the assessment of a civil administrative penalty under this section, the board shall notify the licensee that he has at least 90 days after the date of expiration within which to submit an application for renewal during which time the board shall waive any applicable penalties pursuant to this paragraph. An assessment of a civil administrative penalty under this section shall bar a subsequent imposition of a criminal penalty for the same violation and an imposition of a criminal penalty under this section shall bar a subsequent assessment of a civil administrative penalty for the same violation.

(c) A board may apply to the appropriate court for an order enjoining the unlicensed practice of a trade or profession or for an order for payment of an assessed penalty or for such other relief as may be appropriate to enforce this section.

Section 65A. Notwithstanding any general or special law to the contrary, each board of registration under the supervision of the division of professional licensure and each board of registration under the supervision of the department of public health may, after a consent agreement between the parties or after an opportunity for an adjudicatory proceeding held pursuant to chapter 30A, assess and collect a civil administrative penalty not to exceed $1,000 for the first violation and a civil administrative penalty not to exceed $2,500 for a second or subsequent violation upon a person who, without holding the required license, certificate, registration or authority, engages in the practice of a trade or profession for which a license, certificate, registration or authority is required. Nothing in this section shall affect, restrict, diminish or limit any other penalty or remedy provided by law. A board may apply to the appropriate court for an order enjoining the unlicensed practice of a trade or profession or for an order for payment of an assessed penalty or for such other relief as may be appropriate to enforce this section.

Section 65B. A board of registration under the supervision of the division of professional licensure having jurisdiction over a licensee whose continued practice poses an immediate and serious threat to the public health, safety or welfare may suspend or refuse to renew the holder's license, certificate, registration or authority pending a hearing on the merits of the allegation against the holder. Such board shall hold a hearing pursuant to chapter 30A on the necessity for the suspension or refusal to renew within 10 days of that action. At the time of the suspension or refusal to renew, the board shall issue to the licensee a written summary suspension order which specifies the findings of the board and the reasons for its summary suspension and the date, time and place of the 10-day hearing. At the request of the licensee, the board may reschedule the hearing to a date and time mutually agreeable to the board and the licensee. Any such rescheduling of the hearing granted at the licensee's request shall not operate to lift or stay the summary suspension order. If the hearing is not held within 10 days of the board's summary suspension order or such further time as may be agreed to, the license, certificate, registration or authority against which action was taken shall be reinstated. At the adjudicatory hearing on the necessity for summary suspension, the board shall, by a preponderance of the evidence, establish why the summary suspension order should continue in effect pending the final disposition of the complaint. The board shall issue a preliminary written decision within 10 days of the summary suspension hearing. Following the hearing, a continuing suspension imposed by a board shall remain in effect until the conclusion of any formal adjudicatory proceeding on the merits of the allegations against the holder, but any such proceeding shall occur within 60 days of the summary suspension order, or as the parties may otherwise agree. The board shall render its written decision not later than 30 days after the formal adjudicatory proceeding or as the parties may otherwise agree. A licensee subject to a disciplinary action pursuant to this section may seek judicial review of the board's final decision pursuant to chapter 30A. The division, after proper notice and hearings, shall adopt rules and regulations governing the summary suspension procedure authorized by this section. Nothing in this section shall be deemed to limit any board of registration's summary suspension authority.

Section 65C. Meetings of the boards held for the purpose of conducting investigative conferences prior to the issuance of an order to show cause or for purposes of discussing the terms of a negotiated settlement of a complaint against a licensee shall not be considered open meetings within the meaning of section 11A 1/2 of chapter 30A, but a licensee shall have access to records of any meetings concerning the licensee as may be necessary for the defense of his license at an adjudicatory proceeding.

Section 65D. Twenty per cent of all civil administrative penalties assessed by boards under the supervision of the division of professional licensure pursuant to sections 61 and 65 to 65D, inclusive, shall be deposited in the Division of Professional Licensure Trust Fund established pursuant to subsection (a) of section 35V of chapter 10 and the remaining 80 per cent shall be deposited in the General Fund. Twenty per cent of all civil administrative penalties assessed by boards under the supervision of the department of public health pursuant to sections 65 and 65A of this chapter shall be deposited in the Quality in Health Professions Trust Fund established pursuant to subsection (a) of section 35X of said chapter 10 and the remaining 80 per cent shall be deposited in the General Fund.

Section 65E. Each board of registration under the supervision of the division of professional licensure and each board of registration under the supervision of the department of public health which takes any action against an individual who practices a trade or profession at a time when his license, certificate, registration or authority to do so is not valid because it has been suspended, revoked or cancelled by the board of registration that issued the license, certificate, registration or authority shall report the individual to the attorney general of the commonwealth for review.

SECTION 6. Section 87I of said chapter 112, as appearing in the 2002 Official Edition, is hereby amended by striking out, in lines 8 to 10, inclusive, the words ", and shall furnish to the board a certificate of a registered physician that such student is not afflicted with any contagious or infectious disease".

SECTION 7. Said section 87I of said chapter 112, as so appearing, is hereby further amended by striking out the tenth sentence.