§ 43-34-8 - Authority to refuse license, certificate, or permit or issue discipline; suspension; restoration; enforcement investigations; evidentiary privileges; closed hearings; immunity for report - Georgia Statutes

O.C.G.A. 43-34-8 (2010)
43-34-8. Authority to refuse license, certificate, or permit or issue discipline; suspension; restoration; enforcement investigations; evidentiary privileges; closed hearings; immunity for reporting violations; when investigation or assessment of fitness to practice required; failure to appear; publication of final disciplinary actions

(a) The board shall have authority to refuse to grant a license, certificate, or permit to an applicant or to discipline a person regulated under this chapter or any antecedent law upon a finding by the board that the licensee, certificate holder, or permit holder or applicant has:

(1) Failed to demonstrate the qualifications or standards for a license, certificate, or permit contained in this chapter or in the rules and regulations of the board. It shall be incumbent upon the applicant to demonstrate to the satisfaction of the board that he or she meets all requirements for the issuance of a license; and, if the board is not satisfied as to the applicant's qualifications, it shall not issue a license, certificate, or permit;

(2) Knowingly made misleading, deceptive, untrue, or fraudulent representations in the practice of a profession licensed, certified, or permitted under this chapter or in any document connected therewith, or practiced fraud or deceit or intentionally made any false statement in obtaining a license, certificate, or permit under this chapter to practice pursuant to this chapter, or made a false statement or deceptive registration with the board;

(3) Been convicted of a felony in the courts of this state or any other state, territory, country, or of the United States. As used in this paragraph, the term "conviction of a felony" shall include a conviction of an offense which if committed in this state would be deemed a felony under either state or federal law, without regard to its designation elsewhere. As used in this paragraph, the term "conviction" shall include a finding or verdict of guilt, a plea of guilty resulting in first offender status, or a plea of nolo contendere in a criminal proceeding, regardless of whether the adjudication of guilt or sentence is withheld or not entered thereon;

(4) Committed a crime involving moral turpitude, without regard to conviction; the conviction of a crime involving moral turpitude shall be evidence of the commission of such crime. As used in this paragraph, the term "conviction" shall have the meaning prescribed in paragraph (3) of this subsection. For the purpose of this chapter, a conviction or plea of guilty or of nolo contendere to a charge or indictment by either federal or state government for income tax evasion shall not be considered a crime involving moral turpitude;

(5) Had his or her license, certificate, or permit to practice pursuant to this chapter revoked, suspended, or annulled by any lawful licensing authority; or had other disciplinary action taken against him or her by any lawful licensing authority; or been denied a license by any lawful licensing authority;

(6) Advertised for or solicited patients; obtained a fee or other thing of value on the representation that a manifestly incurable disease can be permanently cured; or made untruthful or improbable statements, or flamboyant or extravagant claims concerning his or her professional excellence or treatment protocols;

(7) Engaged in any unprofessional, unethical, deceptive, or deleterious conduct or practice harmful to the public, which conduct or practice need not have resulted in actual injury to any person. As used in this paragraph, the term "unprofessional conduct" shall include any departure from, or failure to conform to, the minimum standards of acceptable and prevailing medical practice and shall also include, but not be limited to, the prescribing or use of drugs, treatment, or diagnostic procedures which are detrimental to the patient as determined by the minimum standards of acceptable and prevailing medical practice or by rule of the board;

(8) Performed, procured, or aided or abetted in performing or procuring a criminal abortion;

(9) Knowingly maintained a professional connection or association with any person who is in violation of this chapter or the rules or regulations of the board; or knowingly aided, assisted, procured, or advised any person to practice pursuant to this chapter contrary to this chapter or to the rules and regulations of the board; or knowingly performed any act which in any way aids, assists, procures, advises, or encourages any unlicensed person or entity to practice pursuant to this chapter; or divided fees or agreed to divide fees received for professional services with any person, firm, association, corporation, or other entity for bringing or referring a patient;

(10) Violated or attempted to violate a law, rule, or regulation of this state, any other state, the board, the United States, or any other lawful authority without regard to whether the violation is criminally punishable, which law, rule, or regulation relates to or in part regulates the practice of medicine, when the licensee or applicant knows or should know that such action is violative of such law, rule, or regulation; or violated a lawful order of the board, previously entered by the board in a disciplinary hearing;

(11) Committed any act or omission which is indicative of bad moral character or untrustworthiness;

(12) Been adjudged mentally incompetent by a court of competent jurisdiction, within or outside this state. Any such adjudication shall automatically suspend the license, certificate, or permit of any such person and shall prevent the reissuance or renewal of any license, certificate, or permit so suspended for as long as the adjudication of incompetence is in effect unless the board, upon a finding that the licensee, certificate holder, or permit holder is mentally competent, orders otherwise. Any applicant who has been so adjudged to be mentally incompetent shall not receive a license, certificate, or permit unless the board, upon a finding that the applicant is mentally competent, orders otherwise;

(13) Become unable to practice pursuant to this chapter with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material, or as a result of any mental or physical condition:

(A) In enforcing this paragraph the board may, upon reasonable grounds, require a licensee, certificate holder, permit holder, or applicant to submit to a mental or physical examination by physicians designated by the board. The expense of this examination shall be borne by the licensee, certificate holder, or permit holder or applicant. The results of such examination shall be admissible in any hearing before the board, notwithstanding any claim of privilege under a contrary rule of law or statute, including, but not limited to, Code Section 24-9-21. Every person who shall accept the privilege of practicing a profession regulated under this chapter or who shall file an application for a license to practice a profession regulated under this chapter in this state shall be deemed to have given his or her consent to submit to such mental or physical examination and to have waived all objections to the admissibility of the results in any hearing before the board, upon the grounds that the same constitutes a privileged communication. If a licensee, certificate holder, or permit holder or applicant fails to submit to such an examination when properly directed to do so by the board, unless such failure was due to circumstances beyond his or her control, the board may enter a final order upon proper notice, hearing, and proof of such refusal. Any licensee, certificate holder, permit holder, or applicant who is prohibited from practicing pursuant to this chapter under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate to the board that he or she can resume or begin practice pursuant to this chapter with reasonable skill and safety to patients;

(B) For the purposes of this paragraph, the board and any entity which has entered into a contract with the board pursuant to Code Section 43-34-5.1, if specifically provided for in such contract, may, upon reasonable grounds, obtain any and all records relating to the mental or physical condition of a licensee, certificate holder, or permit holder or applicant, including psychiatric records; and such records shall be admissible in any hearing before the board, notwithstanding any privilege under a contrary rule of law or statute, including, but not limited to, Code Section 24-9-21. Every person who shall accept the privilege of practicing pursuant to this chapter in this state or who shall file an application to practice pursuant to this chapter in this state shall be deemed to have given his or her consent to the board's obtaining any such records and to have waived all objections to the admissibility of such records in any hearing before the board, upon the grounds that the same constitute a privileged communication; and

(C) If any licensee, certificate holder, or permit holder or applicant could, in the absence of this paragraph, invoke a privilege to prevent the disclosure of the results of the examination provided for in subparagraph (A) of this paragraph or the records relating to the mental or physical condition of such licensee, certificate holder, or permit holder or applicant obtained pursuant to subparagraph (B) of this paragraph, all such information shall be received by the board in camera and shall not be disclosed to the public, nor shall any part of the record containing such information be used against any licensee, certificate holder, or permit holder or applicant in any other type of proceeding;

(14) Cheated on or attempted to subvert an examination by the board;

(15) Committed an act of sexual abuse, misconduct, or exploitation of a patient including guardians and parents of minors;

(16) Mistreated or abandoned a patient or his or her records; provided, however that a physician in compliance with Chapter 33 of Title 31 shall not be considered to have abandoned patient records;

(17) Entered into conduct which discredits the profession;

(18) Failed to furnish records, including, but not limited to, medical records, to the board in response to a subpoena or failed to answer questions on the renewal of the license, certificate, or permit;

(19) Failed to maintain appropriate medical or other records as required by board rule;

(20) Failed to follow generally accepted infection control procedures or Occupational Safety and Health Administration (OSHA) standards;

(21) Failed to comply with federal laws and standards relating to the practice of medicine or other health care profession regulated under this chapter, the regulations of drugs, the delivery of health care, or other related laws;

(22) Failed to comply with an order for child support as defined by Code Section 19-11-9.3; it shall be incumbent upon the applicant, licensee, certificate holder, or permit holder to supply a notice of release to the board from the appropriate child support authorities within the Department of Human Services indicating that the licensee, certificate holder, permit holder, or applicant has come into compliance with an order for child support so that a license, certificate, or permit may be issued if all other conditions for the issuance of a license, certificate, or permit are met;

(23) Failed to enter into satisfactory repayment status and is a borrower in default as defined by Code Section 20-3-295; it shall be incumbent upon the applicant, licensee, certificate holder, or permit holder to supply the notice of release to the board from the Georgia Higher Education Assistance Corporation indicating that the licensee, certificate holder, permit holder, or applicant has entered into satisfactory repayment status so that a license, certificate, or permit may be issued or granted if all other conditions for issuance of a license, certificate, or permit are met; or

(24) Except for practice settings identified in paragraph (7) of subsection (g) of Code Section 43-34-25 and arrangements approved by the board prior to July 1, 2009, as set forth in subsection (k) of Code Section 43-34-103, been a physician that has been or is employed by one the physician:

(A) Delegates medical acts to:

(B) Enters a protocol or job description with; or

(C) Is responsible for supervising.

(a.1) The provisions of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," with respect to emergency action by a professional licensing board and summary suspension of a license are adopted and incorporated by reference into this Code section.

(b) (1) When the board finds that any person is unqualified to be granted a license, certificate, or permit or finds that any person should be disciplined pursuant to subsection (a) of this Code section, the board may take any one or more of the following actions:

(A) Refuse to grant a license, certificate, or permit to an applicant;

(B) Place the licensee, certificate holder, or permit holder on probation for a definite or indefinite period with terms and conditions;

(C) Administer a public or private reprimand, provided that a private reprimand shall not be disclosed to any person except the licensee, certificate holder, or permit holder;

(D) Suspend any license, certificate, or permit for a definite or indefinite period;

(E) Limit or restrict any license, certificate, or permit;

(F) Revoke any license, certificate, or permit;

(G) Impose a fine not to exceed $3,000.00 for each violation of a law, rule, or regulation relating to the licensee, certificate holder, permit holder, or applicant;

(H) Impose a fine in a reasonable amount to reimburse the board for the administrative costs;

(I) Require passage of a board approved minimum competency examination;

(J) Require board approved medical education;

(K) Condition the penalty, or withhold formal disposition, which actions shall be kept confidential, unless there is a public order upon the applicant, licensee, certificate holder, or permit holder's submission to the care, counseling, or treatment by physicians or other professional persons, which may be provided pursuant to Code Section 43-34-5.1, and the completion of such care, counseling, or treatment, as directed by the board; or

(L) Require a board approved mental and physical evaluation of all licensees, certificate holders, or permit holders.

(2) In addition to and in conjunction with the actions enumerated pursuant to paragraph (1) of this subsection, the board may make a finding adverse to the licensee, certificate holder, permit holder, or applicant but withhold imposition of judgment and penalty; or it may impose the judgment and penalty but suspend enforcement thereof and place the licensee, certificate holder, permit holder, or applicant on probation, which probation may be vacated upon noncompliance with such reasonable terms as the board may impose.

(3) Neither the issuance of a private reprimand nor the denial of a license, certificate, or permit nor the denial of a request for reinstatement of a revoked license, certificate, or permit nor the refusal to issue a previously denied license, certificate, or permit shall be considered to be a contested case within the meaning of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act"; notice and hearing within the meaning of said chapter shall not be required, but the applicant or licensee, certificate holder, or permit holder shall be allowed to appear before the board if he or she so requests. The board may resolve a pending action by the issuance of a letter of concern. Such letter shall not be considered a disciplinary action or a contested case under Chapter 13 of Title 50 and shall not be disclosed to any person except the holder of a license, certificate, or permit or an applicant.

(b.1) The board shall suspend the license, certificate, or permit of a person licensed by the board who has been certified by a federal agency and reported to the board for nonpayment or default or breach of a repayment or service obligation under any federal education loan, loan repayment, or service conditional scholarship program. Prior to the suspension, the licensee, certificate holder, or permit holder shall be entitled to notice of the board's intended action and opportunity to appear before the board according to procedures set forth in the board's rules and regulations. A suspension of a license, certificate, or permit under this subsection is not a contested case under Chapter 13 of Title 50, "Georgia Administrative Procedure Act." A license, certificate, or permit suspended under this Code section shall not be reinstated or reissued until the person provides the board a written release issued by the reporting agency stating that the person is making payments on the loan or satisfying the service requirements in accordance with an agreement approved by the reporting agency. If the person has continued to meet all other requirements for issuance of a license, certificate, or permit during the period of suspension, reinstatement of the license, certificate, or permit shall be automatic upon receipt of the notice and payment of any reinstatement fee which the board may impose.

(c) In its discretion, the board may restore and reissue a license, certificate, or permit issued under this chapter or any antecedent law and, as a condition thereof, may impose any disciplinary or corrective measure provided in this chapter.

(d) The executive director is vested with the power and authority to make, or cause to be made through employees or agents of the board, such investigations as he or she, or the board, or any district attorney may deem necessary or advisable in the enforcement of this chapter. Any person properly conducting an investigation on behalf of the board shall have access to and may examine any writing, document, or other material, except that as to which privilege has not been denied or deemed waived by this chapter, and which is deemed by the chairperson of the board, or vice chairperson if the chairperson is not available, to be related to the fitness of any licensee, certificate holder, permit holder, or applicant to practice pursuant to this chapter. The executive director or the chairperson of the board, or vice chairperson if the chairperson is not available, may issue subpoenas to compel such access. When a subpoena is disobeyed, the board may apply to the superior court of the county where the person to whom the subpoena is issued resides for an order requiring obedience. Failure to comply with such order shall be punishable as for contempt of court. The results of any investigations whatsoever shall be reported only to the board, and the records of such investigations shall be kept by the board; no part of any such record shall be released for any purpose other than a hearing before the board and as provided in Chapter 34A of this title; nor shall such records be subject to subpoena. The board shall be authorized to release records that are not otherwise confidential or privileged only to another state or federal enforcement agency or lawful licensing authority and such release shall not alter the confidential or privileged nature of the documents.

(e) In any hearing to determine a licensee's, certificate holder's, permit holder's, or applicant's fitness to practice pursuant to this chapter, any record relating to any patient of the licensee, certificate holder, permit holder, or applicant shall be admissible into evidence, regardless of any statutory privilege which such patient might otherwise be able to invoke. In addition, no such patient may withhold testimony bearing upon a licensee's, certificate holder's, permit holder's, or applicant's fitness to practice pursuant to this chapter on the ground of privilege between such licensee, certificate holder, permit holder, or applicant and such patient. Any testimony or written evidence relating to a patient of a licensee, certificate holder, permit holder, or applicant or to the record of any such patient shall be received by the board in camera and shall not be disclosed to the public.

(f) In any hearing in which the fitness of a licensee, certificate holder, permit holder, or applicant to practice pursuant to this chapter is in question, the board may exclude all persons from its deliberation of the appropriate action to be taken and may, when in its discretion it deems it necessary, speak to a licensee, certificate holder, permit holder, or applicant in private.

(g) A person, partnership, firm, corporation, association, authority, or other entity shall be immune from civil and criminal liability for reporting or investigating the acts or omissions of a licensee, certificate holder, permit holder, or applicant which violate the provisions of subsection (a) of this Code section or any other provisions of law relating to a licensee's, certificate holder's, permit holder's, or applicant's fitness to practice pursuant to this chapter or for initiating or conducting proceedings against such licensee, certificate holder, permit holder, or applicant, if such report is made or action is taken in good faith without fraud or malice. Any person who testifies in good faith without fraud or malice before the board in any proceeding involving a violation of subsection (a) of this Code section or any other law relating to a licensee's, certificate holder's, permit holder's, or applicant's fitness to practice pursuant to this chapter, or who makes a recommendation to the board in the nature of peer review, shall be immune from civil and criminal liability for so testifying.

(h) Peer review conducted pursuant to this Code section shall be subject to the provisions of Article 6 of Chapter 7 of Title 31, relating to medical peer review groups. Any person providing information for purposes of peer review under this Code section and any person providing information to the board under this Code section shall not be criminally or civilly liable in any way for such actions unless:

(1) Such information is unrelated to the carrying out of peer review under this Code section; or

(2) Such information is false and the person disclosing such information knew that such information was false.

(i) This Code section is enacted in the public welfare and shall be liberally construed.

(j) The board shall investigate a licensee's, certificate holder's, or permit holder's fitness to practice pursuant to this chapter if the board has received a notification, pursuant to Code Section 33-3-27, regarding that licensee, certificate holder, or permit holder of a medical malpractice judgment or settlement in excess of $100,000.00 or a notification pursuant to Code Section 33-3-27 that there have been two or more previous judgments against or settlements with the licensee, certificate holder, or permit holder relating to practice pursuant to this chapter involving an action for medical malpractice. Every licensee, certificate holder, or permit holder shall notify the board of any settlement or judgment involving the licensee, certificate holder, or permit holder involving an action for medical malpractice.

(k) The board may conduct an assessment of a licensee's, certificate holder's, or permit holder's fitness to practice pursuant to this chapter if it has disciplined the licensee, certificate holder, or permit holder three times in the last ten years as a result of an action for medical malpractice. The assessment shall include an examination of the licensee's, certificate holder's, or permit holder's entire history with respect to practice pursuant to this chapter and a one-day on-site visit to the licensee's, certificate holder's, or permit holder's current practice location. The assessment shall be completed within six months of the third disciplinary action. As a result of its findings the board may take any action it deems necessary to reduce medical errors and promote patient safety, including revocation, suspension, or limiting the licensee's, certificate holder's, or permit holder's license, certificate, or permit or requiring additional clinical training, additional continuing medical education, proctoring, or referral to appropriate rehabilitation facilities. As used in this subsection, the term "action for medical malpractice" shall have the same meaning as provided in Code Section 9-3-70. The board shall implement this subsection upon the effective date of a specific appropriation of funds for purposes of this subsection as expressed in a line item making specific reference to the full funding of this subsection in an appropriations Act enacted by the General Assembly.

(l) If any licensee, certificate holder, permit holder, or applicant after 30 days' notice fails to appear at any hearing of the board for that licensee, certificate holder, permit holder, or applicant, the board may proceed to hear the evidence against such licensee, certificate holder, permit holder, or applicant and take action as if such licensee, certificate holder, permit holder, or applicant had been present. A notice of hearing, initial or recommended decision, or final decision of the board in a disciplinary proceeding shall be served personally upon the licensee, certificate holder, permit holder, or applicant or served by certified mail, return receipt requested, to the last known address of record with the board. If such material is served by certified mail and is returned marked "unclaimed" or "refused" or is otherwise undeliverable and if the licensee, certificate holder, permit holder, or applicant cannot, after diligent effort, be located, the executive director shall be deemed to be the agent for service for such licensee, certificate holder, permit holder, or applicant for purposes of this Code section, and service upon the executive director shall be deemed to be service upon the licensee, certificate holder, permit holder, or applicant.

(m) The voluntary surrender of a license, certificate, or permit or the failure to renew a license, certificate, or permit by the end of the established penalty period shall have the same effect as a revocation of said license, certificate, or permit, subject to reinstatement in the discretion of the board. The board may restore and reissue a license, certificate, or permit to practice under this chapter and, as a condition thereof, may impose any disciplinary sanction provided by this Code section.

(n) Subsections (a) and (b) of this Code section shall be supplemental to and shall not operate to prohibit the board from acting pursuant to those provisions of law which may now or hereafter authorize other disciplinary grounds and actions for the board. In cases where those other provisions of law so authorize other disciplinary grounds and actions but subsections (a) and (b) of this Code section limit such grounds for action, those other provisions shall apply.

(o) The board shall publish all final public disciplinary actions taken against a licensee, certificate holder, or permit holder pursuant to this chapter on its official website.