CHAPTER 310 OFFICE OF PROFESSIONAL LICENSURE AND CERTIFICATION
Section 310:9
310:9 Complaints and Investigations. –
I. Allegations of professional misconduct shall be brought in accordance with RSA 332-G and rules adopted by the executive director, subject to the following:
(a) The office or the boards within the office may disclose information acquired in an investigation to law enforcement, if it involves suspected criminal activity, to health licensing agencies in this state or any other jurisdiction, or in response to specific statutory requirements or court orders.
(b) Allegations of professional misconduct shall be brought within 5 years from the time the office reasonably could have discovered the act, omission or failure complained of, except that conduct which resulted in a criminal conviction or in a disciplinary action by a relevant licensing authority in another jurisdiction may be considered by the board without time limitation in making licensing or disciplinary decisions if the conduct would otherwise be a ground for discipline. The board may also consider licensee conduct without time limitation when the ultimate issue before the board involves a pattern of conduct or the cumulative effect of conduct which becomes apparent as a result of conduct which has occurred within the 5-year limitation period prescribed by this paragraph.
II. Upon receipt of an allegation of professional misconduct, the office shall determine whether the allegation states a claim of professional misconduct on its face.
(a) If the office determines that the allegation does not state a claim, it shall make a recommendation to the board for dismissal. The board shall review the office's recommendation and dismiss the allegation if it agrees with the office's recommendation. Each board shall dismiss a complaint if the board concludes that the allegations do not state a claim of professional misconduct.
(b) If the office determines that the allegation does state a claim on its face, the office shall proceed under paragraph III.
III. Notwithstanding any other law to the contrary, the office shall investigate allegations of misconduct by licensees (a) upon its own initiative or (b) upon confirmation that a written complaint alleging misconduct of a licensed or unlicensed individual or entity of a profession regulated under the office should be investigated.
IV. Allegations of misconduct received by the office, information and records acquired by the office during an investigation, and reports and records made by the office because of its investigation, shall be held confidential and shall be exempt from the disclosure requirements of RSA 91-A, unless such information subsequently becomes part of a public disciplinary hearing. However, the office may disclose information acquired in an investigation to law enforcement or licensing agencies in this state or any other jurisdiction, or in accordance with specific statutory requirements or court orders.
V. To carry out investigations, the executive director is authorized to:
(a) Retain qualified experts according to criteria established by the relevant board or who have sufficient knowledge on appropriate statutes or professions and their practices.
(b) Conduct inspections of places of business of a profession regulated under the office, which may include entrance into only the portion of a residence where professional equipment is located and does not include home office equipment.
(c) Issue subpoenas for persons, relevant documents and relevant materials in accordance with the following conditions:
(1) Subpoenas for persons shall not require compliance in less than 48 hours after receipt of service.
(2) Subpoenas for documents and materials shall not require compliance in fewer than 15 days after receipt of service.
(3) Service shall be made on licensees and certified individuals by certified mail to the address on file with the office or by hand and shall not entitle them to witness or mileage fees.
(4) Service shall be made on persons who are not licensees or certified individuals in accordance with the procedures and fee schedules of the superior court, and the subpoenas served on them shall be annotated "Fees Guaranteed by the New Hampshire Office of Professional Licensure and Certification."
VI. When an allegation or complaint of misconduct is determined to be unfounded after an investigation, the board shall dismiss the allegation and explain in writing to the complainant and the licensee its reason for dismissing the complaint. The office shall retain all information concerning investigations in accordance with the retention policy established by the office.
VII. Subject to the limitations of RSA 329-B:26 and RSA 330-A:32, the office shall obtain, handle, archive, and destroy mental health and psychological records as follows:
(a) If a client or patient owning a privilege is the person who has made a complaint against a licensee, the office may access the records of such client or patient. The complaint form provided by the office and initial follow-up correspondence shall clearly indicate that the submission of the complaint by the client or patient who is the owner of the privilege shall override the privacy of that record for the purposes of the office's confidential investigation and proceedings. The client or patient's identity shall not be disclosed to the public in any manner or in any proceeding of the board without his or her consent. If the client or patient named in the complaint is a child, the legitimate assertion of the privilege by one natural or adoptive parent or legal guardian is sufficient for this paragraph to apply. The office may act on that parent or guardian's initiation of complaint regardless of the objection of the other parent or guardian.
(b) If the person who has made the allegations against the licensee is not the owner of the privilege for the records of the client or patient named in the complaint whose treatment is under investigation by the office, the records for investigation shall be treated as follows:
(1) When the office reviews the initial complaint and upon all further reviews of the case by the office or the board, the identity of the named client or patient shall be redacted from the documents reviewed.
(2) The names of clients or patients may be made available only to office staff and consultants assigned to investigate or adjudicate the matter, and in instances where the board has decided to proceed with discipline, to board members for purposes of determining recusal issues as described in subparagraph (f).
(3) The record of a client or patient under this subparagraph that has been specifically named in a complaint may be obtained by office staff as specified:
(A) Office staff and consultants may request permission from the client or patient to obtain the record for the investigation, informing the client or patient about the bounds of confidentiality of such records and the nature of the investigative process. If the client or patient grants permission, office staff may obtain the copies of the record.
(B) If the client or patient denies permission for access to the record, the office may only obtain the record pursuant to a court order.
(4) Personally identifiable information pertaining to a client or patient under this subparagraph shall remain known only to staff and consultants assigned to the matter, which may include an employee of the office's investigations bureau, an employee of the office's prosecutions bureau, professional conduct investigator, the board administrator, and only those additional investigative assistants as the office's investigation team deems necessary to accomplish the investigation of the complaint.
(5) All communication beyond the office staff and consultants, or the board, pertaining to these clients or patients shall be conducted without the use of personally identifiable information.
(6) The identity of a client or patient shall not be disclosed to the public in any manner or in any proceeding of a board without his or her consent.
(c) Records of clients or patients who are not named in the initial complaint shall be treated as follows:
(1) If office staff and consultants assigned to the matter wish to obtain records of, or contact, clients or patients not named in the initial complaint, they shall make a request to the board with reasons for the request, specify the scope of cases and types of records requested, and state the name of the individual for whom authorization is requested to contact the client or patient.
(2) Upon board approval of a request pertaining to treatment of clients or patients defined in this subparagraph, the names of the clients or patients that fulfill the criteria of selection may be made available to office staff and consultants for purposes of determining whether recusal issues pertain to their selection for the investigation as described in subparagraph (f).
(3) If the board approves an investigation into client or patient cases who are not named in the original complaint, the board shall specify whether the clients or patients may be contacted directly.
(4) For records requested under this subparagraph, the keeper of the record shall be instructed to provide records that are redacted of personally identifiable information as defined in subparagraph (g). Each record shall be marked with an identifying code and the keeper of the record shall provide to the office's staff and consultants the contact information for corresponding clients or patients.
(5) The office shall store in a secure manner the list of these client or patient codes with corresponding contact information.
(6) If office staff and consultants have just cause to verify redacted copies against originals records of specified cases they shall request permission of the board, giving reason for the request. Upon board approval, office staff and consultants may have access to the identified unredacted records, which may be viewed at a time and location of their choosing. Office staff and consultants may request a copy of the identified original records be sent to the office. Copies and corrections to the redacted records may be made by the office staff and consultants, after which any identified unredacted copies shall be destroyed and original records returned to the keeper of the records.
(7) Office staff and consultants contacting the clients or patients pursuant to subparagraph (c)(1) shall request permission from the clients or patients to conduct an interview, include an explanation that the individual(s) may grant or refuse permission for such interview, and explain there are no adverse personal consequences of any kind for refusal to grant permission or for withdrawing permission at any time during the interview. Office staff and consultants may inform the individual(s) that refusal to participate may prevent the investigation from proceeding or reaching a satisfactory conclusion.
(8) The identity of each client or patient shall be redacted from any documents reviewed by the board.
(9) The identity of a client or patient defined in this subparagraph shall not be disclosed to the public in any manner or in any proceeding of the board without the client or patient's consent.
(d) Mental health or psychological records obtained through subparagraphs (a)-(c) shall be archived or destroyed at the conclusion of the matter in accordance with a retention schedule established by the office. The identification and contact information collected during the investigation for clients or patients other than a client or patient complainant shall be destroyed.
(e) For the purposes of this paragraph:
(1) "Record" means health or psychological information collected from or about an individual that:
(A) Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and
(B) Relates to the individual, the past, present, or future physical or mental health or psychological condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual.
(2) "Personally identifiable information" means information which identifies an individual or which a reasonable person would believe could be used to identify an individual, including common and uncommon identifiers, including, but not limited to, name, address, birth date, social security number, court docket number, insurance policy number, and any other identifiers of an individual and of the individual's known relatives, household members, and employers that a reasonable person would believe could identify the individual to whom the record pertains.
(f) In the process of determining recusal, the security of the client or patient's identity shall be preserved as follows:
(1) Before engaging in any matter as defined in subparagraph (a), board members, investigators, and others as specified in this paragraph with access to case files shall first review the name of the client/patient before proceeding. If a conflict of interest is identified, that person shall recuse himself or herself from the matter.
(2) Before engaging in any cases defined in subparagraph (b), office staff and consultants at the onset of the investigation, board members at the time of reviewing the findings of the investigation, and any others authorized to have access to the case prior to commencing review of such cases shall first determine if there is a need for recusal.
(3) If a client or patient as defined in subparagraph (b) or (c) testifies or intends to attend the hearing of the case involving his or her treatment and the board may see the client or patient inadvertently or directly, the client or patient's name shall be revealed to the board members so they may have the opportunity to recuse themselves prior to the proceeding. The client or patient shall be informed beforehand of such disclosure.
(4) For recusals pertaining to clients or patients under subparagraph (c) of this section, office staff and consultants shall review the names of the clients or patients who qualify for the scope of investigation as approved by the board, to determine if there is cause for recusal.
(5) When board members review any report of investigation that includes case information pertaining to clients or patients as defined in subparagraph (c), they shall review their names prior to reading such reports in the following manner:
(A) If there are 10 or fewer cases with individual clinical information presented, then the methods of testing for recusal shall follow the recusal procedures in subparagraph (f)(2).
(B) When the report includes clinical information pertaining to more than 10 cases, the recusal methods of subparagraph (f)(4) shall apply.
(C) When such client or patients' information is presented only in aggregate form, no recusal is required.
(g) A keeper of the record shall comply with the board and the office's investigative team's requests for client or patient records and all redaction requirements specified under this section. The board may seek a court order to enforce valid requests for such records under this section.
VIII. Any board member who has had a personal relationship or has worked in a professional capacity with a complainant or with a licensee against whom a complaint has been filed or whose personal or professional views regarding the licensee or the complainant could prevent the board member from being impartial in considering the complaint shall recuse himself or herself from any investigation or disciplinary action against such licensee.