GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2005

H                                                                                                                                                   D

HOUSE DRH50294-LDf-111A  (03/22)

Short Title:     Elect Medical Board/Fees/Report Misconduct.		(Public)
Sponsors:	Representative Faison.
Referred to:

A BILL TO BE ENTITLED

AN ACT to provide for the election of physician members of the North Carolina Medical Board, to authorize the medical board to collect reasonable fees to cover the costs of this election, to provide information to the public regarding certain damage awards or settlements of medical malpractice actions and claims, and to require the reporting of sexual misconduct by a physician or a physician assistant to the medical board when the conduct was subject to peer review.

The General Assembly of North Carolina enacts:

SECTION 1.  G.S. 90-2 reads as rewritten:

"§ 90-2.  Medical Board.

(a)       There is established the North Carolina Medical Board to regulate the practice of medicine and surgery for the benefit and protection of the people of North Carolina. The Board shall consist of 12 members.

(1)       Seven of the members shall be duly licensed physicians elected and nominated to the Governor by the North Carolina Medical Society.as provided in G.S. 90-3.1.

(2)       Of the remaining five members, all to be appointed by the Governor, one shall be a duly licensed physician who is a doctor of osteopathy or a full-time faculty member of one of the medical schools in North Carolina who utilizes integrative medicine in that person's clinical practice or a member of The Old North State Medical Society, three shall be public members and one shall be a physician assistant as defined in G.S. 90-18.1 or a nurse practitioner as defined in G.S. 90-18.2. A public member shall not be a health care provider nor the spouse of a health care provider. For purposes of board membership, "health care provider" means any licensed health care professional and any agent or employee of any health care institution, health care insurer, health care professional school, or a member of any allied health profession. For purposes of this section, a person enrolled in a program to prepare him to be a licensed health care professional or an allied health professional shall be deemed a health care provider. For purposes of this section, any person with significant financial interest in a health service or profession is not a public member.

(a1)     Each appointing and nominating authority shall endeavor to see, insofar as possible, that its appointees and nominees to the Board reflect the composition of the State with regard to gender, ethnic, racial, and age composition.

(b)       No member shall serve more than two complete consecutive three-year terms, except that each member shall serve until a successor is chosen or elected and qualifies.

(c)       Repealed by Session Laws 2003-366, s. 1, effective October 1, 2003.

(d)       Any member of the Board may be removed from office by the Governor for good cause shown. Any vacancy in the physician membership of the Board shall be filled for the period of the unexpired term by the Governor from a list of physicians submitted by the North Carolina Medical Society Executive Council. as provided in G.S. 90-3.1. Any vacancy in the public, physician assistant, or nurse practitioner membership of the Board shall be filled by the Governor for the unexpired term.

(e)       The North Carolina Medical Board shall have the power to may acquire, hold, rent, encumber, alienate, and otherwise deal with real property in the same manner as any private person or corporation, subject only to approval of the Governor and the Council of State as to the acquisition, rental, encumbering, leasing, and sale of real property. Collateral pledged by the Board for an encumbrance is limited to the assets, income, and revenues of the Board."

SECTION 2.  G.S. 90-3 is repealed.

SECTION 3.  Article 1 of Chapter 90 of the General Statutes is amended by adding a new section to read:

"§ 90-3.1.  Election of physician members of the Medical Board.

(a) Physician members of the North Carolina Medical Board shall be elected in accordance with this section. Every person licensed to practice medicine in this State and either residing or practicing in this State is entitled to vote in this election. Any vacancy of a physician member occurring on the Board shall be filled by a majority vote of the remaining physician members of the Board, and this member shall serve until the next regular election conducted by the Board, at which time the vacancy shall be filled by the election process under this section. No physician shall be nominated for or elected to membership on the Board unless, at the time of the nomination and at the time of the election, that person is licensed to practice medicine in this State and is actually engaged in the practice of medicine.

(b) Nominations and elections of physician members of the Board shall be as follows:

(1) An election shall be held each year to elect successors to those members whose terms are expiring in the year of the election, each successor to take office on the first day of August following the election and to hold office for a term of three years or until his or her successor has been elected and qualified, whichever occurs later. However, if in any year the election of the members of the Board for that year shall not have been completed by August 1 of that year, then those members elected that year shall take office immediately after the completion of the election and shall hold office until the first of August of the third year thereafter or until their successors are elected and qualified, whichever occurs later.

(2) Every physician with a current North Carolina license residing or practicing in North Carolina shall be eligible to vote in elections of physicians to the Board. Holding a license to practice medicine in North Carolina constitutes registration to vote in the elections. The list of licensed physicians is the registration list for elections to the appropriate seats on the Board.

(3) All elections shall be conducted by the Medical Board, which is hereby established as the Board of Physician Elections. If a member of the Medical Board whose position is to be filled at any election is nominated to succeed himself or herself, and the member does not withdraw his or her name, the member shall be disqualified to serve as a member of the Board of Physician Elections for that election and the remaining members of the Board of Physician Elections shall proceed and function without his or her participation.

(4) Nomination of physicians for election shall be made to the Board of Physician Elections by a written petition signed by not less than 10 physicians licensed to practice medicine in North Carolina and residing or practicing in North Carolina. The petitions shall be filed with the Board of Physician Elections after January 1 of the year in which the election is to be held and on or before midnight of May 20 of that year or an earlier date as may be set by the Board of Physician Elections. However, at least 10 days' notice of the earlier date shall be given to all physicians qualified to sign a petition of nomination. The Board of Physician Elections shall, before preparing ballots, notify all persons who have been nominated under this subdivision of their nomination.

(5) Any person who is nominated as provided in subdivision (4) of this subsection may withdraw his or her name by written notice delivered to the Board of Physician Elections or its designated secretary at any time prior to the closing of the polls in any election.

(6) Following the close of nominations, ballots shall be prepared in accordance with rules adopted by the Board of Physician Elections, containing the names of all nominees in alphabetical order. Each ballot shall have the method of identification and instructions and requirements printed on the ballot, as prescribed by the Board of Physician Elections. At a time fixed by the Board of Physician Elections, a ballot and an official return envelope addressed to the Board shall be mailed to each person entitled to vote in the election. The envelope shall also contain notice by the Board designating the latest date and hour by which the envelope must be returned and any other items the Board deems necessary. The envelope shall bear a serial number and shall have printed on the left portion of its face the following:

 'Serial No. of Envelope__________________________________

 Signature of Voter______________________________________

 Address of Voter_______________________________________

(Note: The enclosed ballot is not valid unless the signature of the voter is on this envelope.)'

The Board of Physician Elections may print, stamp, or write any additional notice on the envelope, as it deems necessary. No ballot shall be valid or shall be counted in an election unless, within the time provided in subdivision (7) of this subsection, the ballot has been delivered sealed to the Board by hand or by mail. The Board may, by rule, make provision for replacement of lost or destroyed envelopes or ballots upon making proper provisions to safeguard against abuse.

(7) The date and hour fixed by the Board of Physician Elections as the latest time for delivery by hand or mailing of the return ballots shall be on or after the tenth day following the mailing of the envelopes and ballots to the voters.

(8) The ballots shall be canvassed by the Board of Physician Elections beginning at noon on a day and at a place set by the Board of Physician Elections and announced by the Board of Physician Elections in the notice accompanying the ballots and envelopes sent to the voters. The date canvassing the ballots shall be no later than four days after the date fixed by the Board of Physician Elections for closing the ballots. The canvassing shall be made publicly and any licensed physicians may be present. Once the Board of Physician Elections is ready to count the ballots, the envelopes shall be displayed to the persons present and an opportunity shall be given to any person present to challenge the qualification of the voter whose signature appears on the envelope or to challenge the validity of the envelope. Any envelope containing a ballot that is being challenged shall be set aside, and the challenge shall be heard at a time to be determined by the Board of Physician Elections. After the envelopes have been displayed, those not challenged shall be opened and the ballots extracted in a manner that does not show the marking on the ballots, and each ballot shall be separated from its envelope. Each ballot shall be presented for counting, displayed, and, if not challenged, counted. No ballot shall be valid if it is marked for more nominees than there are positions to be filled in that election. No ballot shall be rejected for any technical error unless it is impossible to determine the voter's choice on the ballot. During the counting, challenge may be made to any ballot only if defects appear on the face of the ballot. The Board of Physician Elections may review the challenge when it is made or it may place the ballot aside and determine the challenge after all the other ballots have been counted.

(9) After the ballots have been counted, results of the voting shall be handled in the following manner:

a. Where there is more than one nominee eligible for election to a single seat:

1. The nominee receiving a majority of the votes cast shall be declared elected.

2. In the event that no nominee receives a majority, a second election shall be conducted between the two nominees who receive the highest number of votes.

b. Where there are more than two nominees eligible for election to either of two seats at issue in the same election:

1. A majority shall be any excess of the sum ascertained by dividing the total number of votes cast for all nominees by four.

2. If more than two nominees receive a majority of the votes cast, the two receiving the highest number of votes shall be declared elected.

3. If only one of the nominees receives a majority, he or she shall be declared elected, and the Board of Physician Elections shall order a second election to be conducted between the two nominees receiving the next highest number of votes.

4. If no nominee receives a majority, a second election shall be conducted among the four candidates receiving the highest number of votes. At the second election, the two nominees receiving the highest number of votes shall be declared elected.

c. In any election, if there is a tie between candidates, the tie shall be resolved by the vote of the Board of Physician Elections. However, if a member of the Board of Physician Elections is one of the candidates in the tie, he or she may not participate in the vote.

(10) If a second election is required under this section, the same procedure shall be followed as provided in subdivision (9) of this subsection, and the election shall be subject to the same limitations and requirements, except that if the second election is between four candidates, then the two receiving the highest number of votes shall be declared elected.

(11) In the event of death or withdrawal of a candidate prior to the closing of the polls in any election, he or she shall be eliminated from the contest and any votes cast for the candidate shall be disregarded. If, at any time after the closing of the period for nominations because of lack of plural or proper nominations, death, withdrawal, disqualification, or any other reason, there are only two candidates for two positions, they shall be declared elected by the Board of Physician Elections. If there is only one candidate for one position, he or she shall be declared elected by the Board of Physician Elections. If there are no candidates for two positions, the two positions shall be filled by the Medical Board. If there is no candidate for one position, the position shall be filled by the Medical Board. If there is one candidate for two positions, the one candidate shall be declared elected by the Board of Physician Elections and one qualified physician shall be elected to the other position by the Medical Board. In the event of the death or withdrawal of a candidate after election but prior to taking office, the position to which he or she was elected shall be filled by the Medical Board. In the event of the death or resignation of a physician member of the Medical Board after taking office, the Medical Board shall fill his or her position for the unexpired term.

(12) An official list of licensed physicians shall be kept at the office of the Board of Physician Elections and shall be open for inspection by any person at all times. Any licensed physician may make copies of the list. As soon as the voting in any election begins, a list of the licensed physicians shall be posted in the office of the Board of Physician Elections, and the list shall be marked to show whether a ballot-enclosing envelope has been returned.

(13) All envelopes enclosing ballots and all ballots shall be preserved and held separately by the Board of Physician Elections for a period of six months following the close of an election.

(14) A physician may appeal any decision of the Board of Physician Elections relating to the conduct of the elections in accordance with Chapter 150B of the General Statutes.

(15) The Board of Physician Elections may adopt rules regarding the conduct of these elections, except that the rules shall not conflict with the provisions of this section. The Board of Physician Elections shall notify each licensed physician residing in this State of the rules adopted by the Board of Physician Elections.

(c) In addition to the fees authorized by G.S. 90-15, the Medical Board may collect reasonable charges under G.S. 90-15 to recover expenses and costs associated with conducting the elections pursuant to this section."

SECTION 4.  G.S. 90-14(b) reads as rewritten:

"(b)      The Board shall may refer to the State Medical Society Physician Health and Effectiveness Committee all physicians whose health and effectiveness have been significantly impaired by alcohol, drug addiction addiction, or mental illness. As used in this section, 'mental illness' shall not include sexual misconduct. A physician shall be limited to two referrals to the State Medical Society Physician Health and Effectiveness Committee, and, upon a third referral, the physician's license shall be suspended or revoked."

SECTION 5.  G.S. 90-14.13 reads as rewritten:

"§ 90-14.13.  Reports of disciplinary action by health care institutions; immunity from liability.

(a)       The chief administrative officer of every licensed hospital or other health care institution, including Health Maintenance Organizations, as defined in G.S. 58-67-5, preferred providers, as defined in G.S. 58-50-56, and all other provider organizations that issue credentials to physicians who practice medicine in the State, shall, after consultation with the chief of staff of that institution, report to the Board any revocation, suspension, or limitation of a physician's privileges to practice in that institution. A hospital is not required to report the suspension of a physician's privileges for failure to timely complete medical records unless the suspension is the third within the calendar year for failure to timely complete medical records. Upon reporting the third suspension, the hospital shall also report the previous two suspensions. The institution shall also report to the Board resignations from practice in that institution by persons licensed under this Article. The Board shall report all violations of this subsection known to it to the licensing agency for the institution involved.

(b)       Any licensed physician who does not possess professional liability insurance shall report to the Board any award of damages or any settlement of any malpractice complaint affecting his or her practice within 30 days of the award or settlement.

(c)       The chief administrative officer of each insurance company providing professional liability insurance for physicians who practice medicine in North Carolina, the administrative officer of the Liability Insurance Trust Fund Council created by G.S. 116-220, and the administrative officer of any trust fund operated by a hospital authority, group, or provider shall report to the Board within 30 days:

(1)       Any award of damages or settlement affecting or involving a physician it insures, or

(2)       Any cancellation or nonrenewal of its professional liability coverage of a physician, if the cancellation or nonrenewal was for cause.

(d)       The Board may request details about any action and the officers shall promptly furnish the requested information. The reports required by this section are privileged and and, subject to subsection (f) and subsection (g) of this section, shall not be open to the public. The Board shall report all violations of this paragraph to the Commissioner of Insurance.

(e)       Any person making a report required by this section shall be immune from any criminal prosecution or civil liability resulting therefrom unless such person knew the report was false or acted in reckless disregard of whether the report was false.

(f) The Board shall provide to the public information in a summary fashion by individual physicians on all awards of damages in medical malpractice actions and all settlements of medical malpractice claims whereby five payouts are made within a 10-year period, each of which is in excess of one hundred thousand dollars ($100,000).

(g) Within 30 days of receiving a report of a settlement of a medical malpractice claim affecting or involving a physician, the Medical Board shall publish on its public access Web site, without identifying the physician by name, all of the following information:

(1) A unique identifying number for the physician, to be used in all subsequent reports under this section.

(2) The date of the settlement.

(3) The date the settlement was reported to the Medical Board."

SECTION 6.  G.S. 90-15 reads as rewritten:

"§ 90-15.  License fee; salaries, fees, and expenses of Board.

Each applicant for a license by examination shall pay to the North Carolina Medical Board a fee which shall be prescribed by the Board in an amount not exceeding the sum of four hundred dollars ($400.00) plus the cost of test materials before being admitted to the examination. Whenever a license is granted without examination, as authorized in G.S. 90-13, the applicant shall pay to the Board a fee in an amount to be prescribed by the Board not in excess of two hundred fifty dollars ($250.00). Whenever a limited license is granted as provided in G.S. 90-12, the applicant shall pay to the Board a fee not to exceed one hundred fifty dollars ($150.00), except where a limited license to practice in a medical education and training program approved by the Board for the purpose of education or training is granted, the applicant shall pay a fee of twenty-five dollars ($25.00), and where a limited license to practice medicine and surgery only at clinics that specialize in the treatment of indigent patients is granted, the applicant shall not pay a fee. A fee of twenty-five dollars ($25.00) shall be paid for the issuance of a duplicate license. All fees shall be paid in advance to the North Carolina Medical Board, to be held in a fund for the use of the Board. The compensation and expenses of the members and officers of the Board and all expenses proper and necessary in the opinion of the Board to the discharge of its duties under and to enforce the laws regulating the practice of medicine or surgery shall be paid out of the fund, upon the warrant of the Board. The per diem compensation of Board members shall not exceed two hundred dollars ($200.00) per day per member for time spent in the performance and discharge of duties as a member. Any unexpended sum or sums of money remaining in the treasury of the Board at the expiration of the terms of office of the members of the Board shall be paid over to their successors in office.

For the initial and annual registration of an assistant to a physician, the Board may require the payment of a fee not to exceed a reasonable amount. The Board may collect reasonable charges associated with expenses and costs of elections pursuant to G.S. 90-3.1."

SECTION 7.  G.S. 90-21.22 reads as rewritten:

"§ 90-21.22.  Peer review agreements.

(a)       The North Carolina Medical Board may, under rules adopted by the Board in compliance with Chapter 150B of the General Statutes, enter into agreements with the North Carolina Medical Society and its local medical society components, and with the North Carolina Academy of Physician Assistants for the purpose of conducting peer review activities. Peer review activities to be covered by such agreements shall include investigation, review, and evaluation of records, reports, complaints, litigation and other information about the practices and practice patterns of physicians licensed by the Board, and of physician assistants approved by the Board, and shall include programs for impaired physicians and impaired physician assistants. Agreements between the Academy and the Board shall be limited to programs for impaired physicians and physician assistants and shall not include any other peer review activities.

(b)       Peer review agreements shall include provisions for the society and for the Academy to receive relevant information from the Board and other sources, conduct the investigation and review in an expeditious manner, provide assurance of confidentiality of nonpublic information and of the review process, make reports of investigations and evaluations to the Board, and to do other related activities for promoting a coordinated and effective peer review process. Peer review agreements shall include provisions assuring due process.

(c)       Each society which that enters into a peer review agreement with the Board shall establish and maintain a program for impaired physicians licensed by the Board. The Academy, after entering a peer review agreement with the Board, shall either enter an agreement with the North Carolina Medical Society for the inclusion of physician assistants in the Society's program for impaired physicians, or shall establish and maintain the Academy's own program for impaired physician assistants. The purpose of the programs shall be to identify, review, and evaluate the ability of those physicians and physician assistants to function in their professional capacity and to provide programs for treatment and rehabilitation. The Board may provide funds for the administration of impaired physician and impaired physician assistant programs and shall adopt rules with provisions for definitions of impairment; guidelines for program elements; procedures for receipt and use of information of suspected impairment; procedures for intervention and referral; monitoring treatment, rehabilitation, post-treatment support and performance; reports of individual cases to the Board; periodic reporting of statistical information; assurance of confidentiality of nonpublic information and of the review process. As used in this section, 'impairment' shall not include sexual misconduct or harassment or sexual interaction with a patient.

(d)       Upon investigation and review of a physician licensed by the Board, or a physician assistant approved by the Board, or upon receipt of a complaint or other information, a society which that enters a peer review agreement with the Board, or the Academy if it has a peer review agreement with the Board, as appropriate, shall report immediately to the Board detailed information about any physician or physician assistant licensed or approved by the Board if:if any one or more of the following apply:

(1)       The physician or physician assistant constitutes an imminent danger to the public or to himself;himself or herself.

(2)       The physician or physician assistant refuses to cooperate with the program, refuses to submit to treatment, or is still impaired after treatment and exhibits professional incompetence; orincompetence.

(3) The physician or physician assistant has engaged in sexual misconduct, sexual harassment, or sexual interaction with a patient.

(4) It reasonably appears that the physician or physician assistant has committed a felony.

(5) The physician or physician assistant has participated in a program for impaired physicians or impaired physician assistants on a previous occasion.

(3)(6)  It reasonably appears that there are other grounds for disciplinary action.

(e)       Any confidential patient information and other nonpublic information acquired, created, or used in good faith by the Academy or a society pursuant to this section shall remain confidential and shall not be subject to discovery or subpoena in a civil case. No person participating in good faith in the peer review or impaired physician or impaired physician assistant programs of this section shall be required in a civil case to disclose any information acquired or opinions, recommendations, or evaluations acquired or developed solely in the course of participating in any agreements pursuant to this section.

(f)        Peer review activities conducted in good faith pursuant to any agreement under this section shall not be grounds for civil action under the laws of this State and are deemed to be State directed and sanctioned and shall constitute State action for the purposes of application of antitrust laws."

SECTION 8.  Notwithstanding G.S. 90-3.1, enacted by Section 3 of this act, members serving on the North Carolina Medical Board on the effective date of this act may complete the terms for which they were elected or appointed. When the terms of any of the seven members appointed by the Governor, upon the recommendation of the North Carolina Medical Society, are completed, the vacancies shall be filled by election pursuant to G.S. 90-3.1, enacted by Section 3 of this act. Members described in this section shall serve for the terms for which they were elected and until their successors are elected and qualified.

SECTION 9.  This act becomes effective January 1, 2006.