A BILL TO BE ENTITLED
AN ACT establishing due process for physicians' and patients' rights.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 90‑1.1 reads as rewritten:
"§ 90‑1.1.  Definitions.
The following definitions apply in this Article:
(1)	Board. – The North Carolina Medical Board.
(2)	Hearing officer. – Any current or past member of the Board who is a physician, physician assistant, nurse practitioner, or any licensee licensed by the Board who is requested to participate on a hearing committee and has an active license or approval to practice medical acts, tasks, or functions issued by the Board, or any current or retired judge of the Office of Administrative Hearings, a State district court, a State superior court, the North Carolina Court of Appeals, the North Carolina Supreme Court, or of the federal judiciary who has an active license to practice law in North Carolina and who is a member in good standing of the North Carolina State Bar.
(3)	Integrative medicine. – A diagnostic or therapeutic treatment that may not be considered a conventionally accepted medical treatment and that a licensed physician in the physician's professional opinion believes may be of potential benefit to the patient, so long as the treatment poses no greater risk of harm to the patient than the comparable conventional treatments.
(4)	License. – An authorization issued by the Board to a physician or physician assistant to practice medical acts, tasks, or functions.
(4a)	Modality. – A therapeutic method or agent that involves a physical treatment of a disorder.
(5)	The practice of medicine or surgery. – The practice of medicine or surgery, for purposes of this Article, includes any of the following acts:
a.	Advertising, holding out to the public, or representing in any manner that the individual is authorized to practice medicine in this State.
b.	Offering or undertaking to prescribe, order, give, or administer any drug or medicine for the use of any other individual.
c.	Offering or undertaking to prevent or diagnose, correct, prescribe for, administer to, or treat in any manner or by any means, methods, or devices any disease, illness, pain, wound, fracture, infirmity, defect, or abnormal physical or mental condition of any individual, including the management of pregnancy or parturition.
d.	Offering or undertaking to perform any surgical operation on any individual.
e.	Using the designation "Doctor," "Doctor of Medicine," "Doctor of Osteopathy," "Doctor of Osteopathic Medicine," "Physician," "Surgeon," "Physician and Surgeon," "Dr.," "M.D.," "D.O.," or any combination thereof in the conduct of any occupation or profession pertaining to the prevention, diagnosis, or treatment of human disease or condition, unless the designation additionally contains the description of or reference to another branch of the healing arts for which the individual holds a valid license in this State or the use of the designation "Doctor" or "Physician" is otherwise specifically permitted by law.
f.	The performance of any act, within or without this State, described in this subdivision by use of any electronic or other means, including the Internet or telephone."
SECTION 2.  G.S. 90‑5.1(a) is amended by adding the following new subdivisions to read:
"(a)	The Board shall:
…
(11)	Hire independent counsel to advise the Board or hearing committee in all contested matters before the Board to avoid a conflict of interest with Board employees.
(12)	Regulate the practice of medicine to protect the public from incompetent physicians and to allow physicians to practice the modalities of choice. A patient has the right to consent to treatment. The consent is presumed valid if the consent is obtained in writing from a patient or other person authorized to give consent for the patient, and the consent fully evidences the treatment of modality and the treatment's potential benefit or harm to the patient."
SECTION 3.  G.S. 90‑8 reads as rewritten:
"§ 90‑8.  Officers may administer oaths, and subpoena witnesses, records and other materials.
The president and secretary of the Board may administer oaths to all persons appearing before it as the Board may deem necessary to perform its duties, and may summon and issue subpoenas for the appearance of any witnesses deemed necessary to testify concerning any matter to be heard before or inquired into by the Board. The Board may order that any patient records, documents or other material concerning any matter to be heard before or inquired into by the Board shall be produced before the Board or made available for inspection, notwithstanding any other provisions of law providing for the application of any physician‑patient privilege with respect to such records, documents or other material. The licensee shall be advised by the Board or the Board's agents of the reason for the investigation and that the licensee has the right to consult with an attorney before submitting any records, documents, or other materials to the Board. All records, documents, or other material compiled by the Board are subject to the provisions of G.S. 90‑16. Notwithstanding the provisions of G.S. 90‑16, in any proceeding before the Board, in any record of any hearing before the Board, and in the notice of charges against any licensee, the Board shall withhold from public disclosure the identity of a patient including information relating to dates and places of treatment, or any other information that would tend to identify the patient, unless the patient or the representative of the patient expressly consents to the disclosure. Upon written request, the Board shall revoke a subpoena if, upon a hearing, it finds that the evidence the production of which is required does not relate to a matter in issue, or if the subpoena does not describe with sufficient particularity the evidence the production of which is required, or if for any other reason in law the subpoena is invalid."
SECTION 4.  G.S. 90‑14(a) reads as rewritten:
"(a)	The Board shall have the power to place on probation with or without  conditions, impose limitations and conditions on, publicly reprimand, assess monetary redress, issue public letters of concern, mandate free medical services, require satisfactory completion of treatment programs or remedial or educational training, fine, deny, annul, suspend, or revoke a license, or other authority to practice medicine in this State, issued by the Board to any person who has been found by the Board to have committed any of the following acts or conduct, or for any of the following reasons:
(1)	Immoral or dishonorable conduct.
(2)	Producing or attempting to produce an abortion contrary to law.
(3)	Made false statements or representations to the Board, or willfully concealed from the Board material information in connection with an application for a license, an application, request or petition for reinstatement or reactivation of a license, an annual registration of a license, or an investigation or inquiry by the Board.
(4)	Repealed by Session Laws 1977, c. 838, s. 3.
(5)	Being unable to practice medicine with reasonable skill and safety to patients by reason of illness, drunkenness, excessive use of alcohol, drugs, chemicals, or any other type of material or by reason of any physical or mental abnormality. The Board is empowered and authorized to require a physician licensed by it to submit to a mental or physical examination by physicians designated by the Board before or after charges may be presented against the physician, and the results of the examination shall be admissible in evidence in a hearing before the Board.
(6)	Unprofessional conduct, including, but not limited to, departure from, or the failure to conform to, the standards of acceptable medical practice, or the ethics of the medical profession, irrespective of whether or not a patient is injured thereby, or the committing of any act contrary to honesty, justice, or good morals, whether the same is committed in the course of the physician's practice or otherwise, and whether committed within or without North Carolina. The Board shall not revoke the license of or deny a license to a licensee or discipline a licensee in any manner because of that licensee's practice of a therapy that is experimental, nontraditional, or that departs from acceptable and prevailing medical practices unless, by competent evidence, the Board can establish that the treatment has a safety risk greater than the prevailing treatment and that the treatment is generally not effective.
(7)	Conviction in any court of a crime involving moral turpitude, or the violation of a law involving the practice of medicine, or a conviction of a felony; provided that a felony conviction shall be treated as provided in subsection (c) of this section.
(8)	By false representations has obtained or attempted to obtain practice, money or anything of value.
(9)	Has advertised or publicly professed to treat human ailments under a system or school of treatment or practice other than that for which the physician has been educated.
(10)	Adjudication of mental incompetency, which shall automatically suspend a license unless the Board orders otherwise.
(11)	Lack of professional competence to practice medicine with a reasonable degree of skill and safety for patients or failing to maintain acceptable standards of one or more areas of professional physician practice. In this connection the Board may consider repeated acts of a physician indicating the physician's failure to treat a patient within the standards of acceptable medical practice for the modality used. The Board may, upon reasonable grounds, require a physician to submit to inquiries or examinations, written or oral, as the Board deems necessary to determine the professional qualifications of such licensee. In order to annul, suspend, deny, revoke a license, or discipline a licensee in any manner, the Board shall find by the greater weight of the evidence that the care provided was not in accordance with the standards of practice for the procedures or treatments administered.
(11a)	Not actively practiced medicine or practiced as a physician assistant, or having not maintained continued competency, as determined by the Board, for the two‑year period immediately preceding the filing of an application for an initial license from the Board or a request, petition, motion, or application to reactivate an inactive, suspended, or revoked license previously issued by the Board. The Board is authorized to adopt any rules or regulations it deems necessary to carry out the provisions of this subdivision.
(12)	Promotion of the sale of drugs, devices, appliances or goods for a patient, or providing services to a patient, in such a manner as to exploit the patient, and upon a finding of the exploitation, the Board may order restitution be made to the payer of the bill, whether the patient or the insurer, by the physician; provided that a determination of the amount of restitution shall be based on credible testimony in the record. No physician shall be disciplined for exploitation, if the patient or other person authorized to give consent for the patient has consented, in writing, to the treatment and the cost of treatment before commencing the course of treatment.
(13)	Having a license to practice medicine or the authority to practice medicine revoked, suspended, restricted, or acted against or having a license to practice medicine denied by the licensing authority of any jurisdiction. For purposes of this subdivision, the licensing authority's acceptance of a license to practice medicine voluntarily relinquished by a physician or relinquished by stipulation, consent order, or other settlement in response to or in anticipation of the filing of administrative charges against the physician's license, is an action against a license to practice medicine.
(14)	The failure to respond, within a reasonable period of time and in a reasonable manner as determined by the Board, to inquiries from the Board concerning any matter affecting the license to practice medicine.
(15)	The failure to complete an amount not to exceed 150 hours of continuing medical education during any three consecutive calendar years pursuant to rules adopted by the Board.
The Board may, in its discretion and upon such terms and conditions and for such period of time as it may prescribe, restore a license so revoked or otherwise acted upon, except that no license that has been revoked shall be restored for a period of two years following the date of revocation."
SECTION 5.  G.S. 90‑14(g) reads as rewritten:
"(g)	Prior to taking action against any licensee for providing care not in accordance with the standards of practice for the procedures or treatments administered, the Board shall consult with and obtain the expert opinion of a licensee of the Board who routinely uses the same modalities of treatment and who finds that the practitioner has not provided care in accordance with the standards of practice for the care administered. The expert opinion shall be available to the licensee before any informal meeting, but shall not be a public record under Chapter 132 of the General Statutes."
SECTION 6.  G.S. 90‑14.5(a) reads as rewritten:
"(a)	The Board, in its discretion, may designate in writing three or more hearing officers to conduct hearings as a hearing committee to take evidence. The Board shall appoint a non‑Board member, as necessary, to ensure that at least one of the hearing officers is a physician who routinely uses the same treatment modalities as the licensee."
SECTION 7.  G.S. 90‑14.8 reads as rewritten:
"§ 90‑14.8.  Appeal from Board's decision taking disciplinary action on a license.
A physician disciplined in any manner or denied a license by the Board may obtain a review of the decision of the Board in the Superior Court of Wake County or in the county of residence of the licensee upon filing with the secretary of the Board a written notice of appeal within 20 days after the date of the service of the decision of the Board, stating all exceptions taken to the decision of the Board and indicating the court in which the appeal is to be heard.
Within 30 days after the receipt of a notice of appeal as herein provided, the Board shall prepare, certify and file with the clerk of the Superior Court of Wake County the record of the case comprising a copy of the charges, notice of hearing, transcript of testimony, and copies of documents or other written evidence produced at the hearing, decision of the Board, and notice of appeal containing exceptions to the decision of the Board."
SECTION 8.  G.S. 90‑14.10 reads as rewritten:
"§ 90‑14.10.  Scope of review.
Upon the review of the Board's decision taking disciplinary action on a license, the case shall be heard by the judge without a jury,pursuant to testimony taken by the court. Upon the consent of both parties, the case may be heard upon the record. The court may affirm the decision of the Board or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the accused physician have been prejudiced because the findings or decisions of the Board are in violation of substantive or procedural law, or are not supported by competent, material, and substantial evidence admissible under this Article, or are arbitrary or capricious. At any time after the notice of appeal has been filed, the court may remand the case to the Board for the hearing of any additional evidence which is material and is not cumulative and which could not reasonably have been presented at the hearing before the Board."
SECTION 9.  G.S. 90‑16(e1) reads as rewritten:
"(e1)	When the Board receives a complaint regarding the care of a patient, the Board shall inform the complainant of the disposition of the Board's inquiry into the complaint and the Board's basis for that disposition. Upon written request of a patient, the Board may provide the patient a licensee's written response to a complaint filed by the patient with the Board regarding the patient's care. Upon written request of a complainant, who is not the patient but is authorized by State and federal law to receive protected health information about the patient, the Board may provide the complainant a licensee's written response to a complaint filed with the Board regarding the patient's care. Any information furnished to the patient or complainant pursuant to this subsection shall be inadmissible in evidence in any civil proceeding. However, information, documents, or records otherwise available are not immune from discovery or use in a civil action merely because they were included in the Board's review or were the subject of information furnished to the patient or complainant pursuant to this subsection. When the Board receives a complaint, the Board shall immediately make the licensee aware of the nature of the complaint, the complainant, and the substance of the complaint. As soon as practicable, the Board shall provide the licensee the opportunity to review the complaint with the complainant. The Board shall not initiate an investigation pursuant to an anonymous complaint unless the basis of the complaint constitutes grounds for summary suspension of a licensee's license."
SECTION 10.  This act is effective when it becomes law.