|
|
ARIZONA HOUSE OF REPRESENTATIVES57th Legislature, 2nd Regular Session |
House: HHS DPA 7-4-1-0 |
HB 2408: nursing board; regulatory actions; expungement
Sponsor: Representative Willoughby, LD 13
Caucus & COW
Overview
Establishes procedures, timeframes, confidentiality and notice requirements for complaint investigation conducted by the Arizona State Board of Nursing (Board). Updates the definition of unprofessional conduct to include specific types of sexual conduct with patients.
History
The Board was established to regulate the practice of nursing and to protect the public health, safety and welfare. The Board is responsible for licensing and regulating registered nurses, registered nurse practitioners, clinical nurse specialists, certified nurse midwives, registered nurse anesthetists, licensed practical nurses, nursing assistants, certified medication assistants and licensed health aides as well as approving nursing education programs. Statute grants the Board authority to investigate complaints, conduct hearings and take disciplinary action against a licensee or applicant who engages in unprofessional conduct or violates state law or Board rules. Disciplinary actions may include decree of censure, probation, civil penalties, suspension or revocation of a license, as well as other limitations or conditions on practice (A.R.S. §§ 32-1602, 32-1606, 32-1632, 32-1663).
Provisions
Investigation of Complaints
1. Directs the Board to require complainants to identify themselves in the complaint and make themselves available for an evidentiary interview unless the complainant refuses to identify themselves. (Sec. 3)
2. Allows complainants to request that their identity remain confidential during the investigatory process. (Sec. 3)
3. Entitles the respondent to review the complete investigatory file, including the identity of the complainant if the investigatory process results in a determination that a violation of law may have occurred unless the Board finds that a complainant may reasonably fear retaliation or be endangered if the complainant's identity is revealed, or the complaint directly impact patient safety. (Sec. 3)
4. Allows the Board to continue to maintain the complainant's identity from the licensee until the conclusion of the administration process if the Board finds that a complainant may reasonably fear retaliation, be endangered if the complainant's identity is revealed or the complaint directly impact patient safety. (Sec. 3)
5. Permits the Board to conduct a closed evidentiary hearing if the complainant requests that the complainant's identity remain private and has a reasonable basis to conduct the hearing. (Sec. 3)
6. Allows a complainant's anonymity to continue until evidence by the complainant is required at an administrative or legal proceeding. (Sec. 3)
7. Allows the Board to act on a complaint if the complainant refuses to identify himself or herself only if the Board has sufficient information that a violation may have occurred within its jurisdiction that directly impacts the safety of patients without the testimony of the anonymous complainant. (Sec. 3)
8. Requires the Board to limit an investigation of a complaint to those investigative subjects and actions that are relevant and material to the issues raised in the complaint and that would reasonably be taken to investigate the issues in the complaint. (Sec. 3)
9. Clarifies this does not prohibit the Board from investigating any issue or evidence of unprofessional conduct that is discovered or brought Board's attention during the investigation of the original complaint. (Sec. 3)
10. Directs the Board to seek legal advice from its assigned legal counsel on whether it should report to the alleged criminal conduct to the appropriate criminal justice agency, including whether any statutory reporting requirements exist if the Board reasonably believes that a crime has been committed. (Sec. 3)
11. Requires the Board, if it believes that a licensee, permitted, certificated individual or entity has engaged in conduct that may violate the law or codes of conduct, but the Board does not have jurisdiction, to report the conduct to the appropriate state regulatory board or state agency that it believes has jurisdiction. (Sec. 3)
12. Requires the Board to implement a policy prioritizing complaints based on the harm to a patient or potentially to the public. (Sec. 3)
13. Directs the Board to assign the highest priority to complaints alleging sexual misconduct with a patient, criminal assault, theft or providing services while under the influence of any illegal or legal substance that impairs the licensee or certificate holder. (Sec. 3)
14. Requires the Board to provide the respondent with a written notice that there is an open investigation, that the respondent has the right to be represented by legal counsel and that the respondent has at least 15 business days after receiving the written notice before the Board requires a response. (Sec. 3)
15. Requires the written notice to inform the respondent that the Board may use any statement the respondent makes against the respondent. (Sec. 3)
16. Allows the respondent to waive the 15-day timeframe by written communication. (Sec. 3)
17. Prohibits the Board from requiring the licensee or certificate holder to be evaluated only by a professional whose name is provided in a list by the Board to the licensee or certificate holder. (Sec. 3)
18. Specifies that if the Board determines that a psychological, psychiatric or other medical evaluation of the licensee or certificate holder is essential for the Board to make a decision regarding a complaint and the licensee or certificate holder requests the evaluation be made by a professional than the one recommended by the Board, then the Board or its designee may accept and approve an evaluation to address the issues the Board has requested in its order. (Sec. 3)
19. Requires the Board, within 180 days after it receives a complaint, to:
a. submit the investigation for review;
b. administratively dismiss the complaint if the Board finds it is unsubstantiated; and
c. report a determination either that that the complaint investigation cannot be reasonably completed within 180 days due to the complexity of the matter or the respondent has requested additional time to respond or has caused delays in the investigation. (Sec. 3)
20. Requires the Board, if a determination is made within 180 days, to:
a. continue the investigation for an additional 100 days to complete the investigation and proceed with the administrative procedure to submit the complaint for final board review and action; or
b. administratively dismiss the complaint without prejudice. (Sec. 3)
21. Allows the Board, if it dismisses a complaint without prejudice, to reopen the investigation only if the Board received additional evidence, information or testimony sufficient to conclude the investigation. (Sec. 3)
22. Suspends the timeframes if another health profession regulatory board or criminal justice agency is investigating the alleged circumstances in a complaint until the investigation is completed. (Sec. 3)
Investigation Files
23. Prohibits a person who obtains information from the Board from releasing the information to any other person or entity or use the information in any proceeding or action except in connection with the Board's review of the investigation, disciplinary interview and any administrative proceeding or appeal related to the disciplinary interview or hearing. (Sec. 3)
24. Requires the Board to provide notice to a respondent at least 15 business days before a Board meeting to review the status of an investigation and access to the investigative file by either of the following discretionary methods:
a. review the file at the Board's office and receive copies; or
b. provide the file to the respondent or their attorney by electronic transmission. (Sec. 3)
25. Prohibits the Board from making an administrative dismissal or nondisciplinary remedial action publicly available or report the action to the National Practitioner Data Bank, consistent with federal law. (Sec. 3)
26. Dictates the Board has the burden of proof by clear and convincing evidence for disciplinary matters except for matters regarding sexual conduct. (Sec. 3)
Expungement
27. Allows the Board to:
a. grant a request for expungement of a disciplinary action previously imposed against a licensee or certificate holder, whether formal or informal, only as authorized by statute; or
b. grant an expungement of a disciplinary action only once for a licensee or certificate holder. (Sec. 3)
28. Requires any request for expungement to be made in writing and comply with all applicable statutes and rules. (Sec. 3)
29. Expunges any disciplinary action arising from the failure to timely renew a licensee or certificate, failure to complete continuing education or a documentation error by the Board if all the following apply:
a. the disciplinary action is at least two years old;
b. the terms of the disciplinary action have been met; and
c. there have been no subsequent violations of any other statues or rules. (Sec. 3)
30. Allows the Board to expunge a disciplinary action for any disciplinary matter other than failure to timely renew a licensee or certificate or completion of continuing education, if:
a. the disciplinary action is at least five years old;
b. the terms of the disciplinary action have been met;
c. there have been no subsequent violations of any other applicable statutes or rules; and
d. the licensee or certificate holder has had a total of not more than two disciplinary actions imposed by the Board or any other regulatory board or authority from this state or any other state. (Sec. 3)
31. Prohibits the Board from granting a request for expungement if:
a. the disciplinary action was based on a criminal conviction resulting from assault, abuse, fraud, or any other felonious conduct that resulted in physical or financial hard to or the death of an individual or attempted murder;
b. the licensee or certificate holder assaulted or abused a patient; or
c. the licensee's or certificate holder's conducted caused harm or death to a patient. (Sec. 3)
32. Requires the Board to report an expungement to any national database to which the Board previously reported the disciplinary action. (Sec. 3)
33. Specifies that a licensee or certificate holder is not required to report an expunged disciplinary action on any future application for issuance or renewal of a license, permit or certificate to any regulatory board or agency in this state. (Sec. 3)
34. Allows a licensee or certificate holder who was damaged by the Boards failure to comply with the investigation statutes or rules, to seek damages, including attorney fees, in any civil legal proceeding, notwithstanding any other law. (Sec. 3)
Miscellaneous
35. Deems as unprofessional conduct the act of engaging in sexual conduct with a current patient or with a former patient within six months after their last treatment unless the patient was the licensee's spouse at the time of the contact or, immediately preceding the nurse-patient relationship, was in a dating or engagement relationship with the licensee. (Sec. 1)
36. Specifies that sexual conduct includes:
a. engaging in or soliciting a sexual relationship, whether consensual or nonconsensual;
b. making sexual advances, requesting sexual favors or engaging in any other verbal conduct or physical contact of a sexual nature; and
c. intentionally viewing a completely or partially disrobed patient in the course of treatment if the viewing is not related to patient diagnosis or treatment under current practice standards. (Sec. 1)
37. Deems as unprofessional conduct the act of releasing Board information to any person or entity or using the information in any proceeding or action except in connection with the Board's review of the investigation, disciplinary interview and any administrative proceeding or appeal related to the disciplinary interview or hearing. (Sec. 3)
38. Requires the Board to post all written substantive policies in a clearly identifiable section on its public website. (Sec. 2)
39. Defines the following terms:
a. without prejudice; and
b. investigative file. (Sec. 3)
40. Makes technical and conforming changes. (Sec. 1-2)
Amendments
Committee on Health & Human Services
1. Requires the Board to transfer, within 5 business days, any complaint it receives against a nursing program or nursing school to the State Board for Private Post Secondary education, the Arizona Board of Regents or the community college district governing board, as applicable.
2. Modifies certain actions the Board can take when investigating complaints or expunging certain disciplinary actions.
3. Holds a board member or staff member personally liable only if the person's conduct was reckless, malicious or wilful.
4. Makes technical and conforming changes.
---------- DOCUMENT FOOTER ---------
Initials AG HB 2408
2/11/2026 Page 0 Caucus & COW
---------- DOCUMENT FOOTER ---------