Section 326-B:38 Investigations and Hearings.
I. The board shall investigate possible misconduct by licensees and other matters governed by the provisions of this chapter. Investigations shall be conducted with or without the issuance of a board order setting forth the general scope of the investigation. Board investigations and any information obtained by the board pursuant to such investigations shall be exempt from the public disclosure provisions of RSA 91-A, unless such information subsequently becomes part of a public disciplinary hearing. However, the board may disclose information acquired in an investigation to law enforcement or health licensing agencies in this state or any other jurisdiction, or in accordance with specific statutory requirements or court orders.
II. The board may appoint legal counsel, health care advisors, or other investigators to assist with any investigation and with adjudicative hearings.
III. The form taken by an investigation is a matter within the discretion of the board. The board may conduct investigations on an ex parte basis.
IV. (a) The board may administer oaths or affirmations, preserve testimony, and issue subpoenas for witnesses, documents, and things, relative to investigations or adjudicative hearings, except that subpoenas for records issued pursuant to paragraph V may be issued at any time.
(b) The board may serve a subpoena on any licensee by certified mail, but shall serve a subpoena on any other person in accordance with the procedures and the fee schedules established by the superior court.
(c) A person licensed by the board shall not be entitled to a witness fee or mileage expenses for travel within the state related to his or her appearance at a hearing or investigatory proceeding.
(d) In order to be valid, any subpoena issued by the board, except one issued to a licensee, shall be annotated ""Fees guaranteed by the New Hampshire board of nursing.''
(e) A minimum of 48 hours' notice shall be given for compliance with a subpoena issued under this paragraph.
V. The board may at any time subpoena a licensee's health care records, employment records, and nursing education academic records in the possession of its licensees, nursing education programs licensed by the board, or hospitals, and other health care providers and facilities regulated in this state, except that it may not subpoena quality assurance records of health facilities licensed under RSA 151. Subpoenas shall be served by certified mail or personal delivery to the address currently on file with the board in the case of delivery to a licensee. No witness or other fee shall be required. A minimum of 15 days' advance notice shall be allowed for complying with a subpoena issued under this paragraph.
VI. Complaints of licensee misconduct shall be in writing and shall be treated as petitions for the commencement of a disciplinary hearing. The board shall determine whether a complaint alleges misconduct sufficient to support disciplinary proceedings. If the board determines that it does, the board shall forward a copy of the complaint to the licensee complained against within 5 business days of its determination. If the board determines that it does not, the board shall send the complainant a written notice of dismissal of the complaint. Some or all of the allegations in a complaint may be consolidated with another complaint or with issues the board wishes to investigate or hear on its own motion. If an investigation of a complaint results in an offer of settlement by the licensee, the board may settle the allegations against the licensee without the consent of a complainant, provided that material facts are not in dispute.
VII. At any time during an investigation of a complaint, and without issuing a subpoena, the board may mail a copy of a complaint to the licensee named in the complaint, and may require in a written request that the licensee and the licensee's employer provide detailed and good faith written responses to allegations identified by the board and also provide copies of all records concerning any client identified in the complaint. The licensee and others receiving inquiries from the board shall respond within a reasonable time period of not less than 15 days as the board may specify. This procedure may also be used in connection with matters the board has undertaken to investigate on its own motion.
VIII. The board may hold adjudicative hearings concerning allegations of misconduct or other matters within the scope of this chapter. Such hearings shall be public proceedings. Any member of the board other than the public members, or any other qualified person appointed by the board, shall have authority to preside at such a hearing and to issue oaths or affirmations to witnesses.
IX. The board shall give the respondent and the complainant, if any, at least 15 days' written notice of the date, time, and place of a hearing, except as otherwise provided in this chapter. Such notice shall comply with RSA 541-A and include an itemization of the issues to be heard, and, in the case of a disciplinary hearing, a statement as to whether the action has been initiated by a written complaint or upon the board's own motion, or both. If a written complaint is involved, the notice shall provide the complainant with a reasonable opportunity to intervene as a party. Such notice shall be sent by certified mail, return receipt requested, to the complainant and to the respondent at the address provided by the respondent currently on file at the board offices. Notice mailed in compliance with this section shall be deemed served.
X. The board may at any time dispose of allegations in a complaint, investigation, or disciplinary hearing by settlement, default, or consent order, by issuing an order of dismissal for failing to state a proper basis for disciplinary action, or by summary judgment order based upon undisputed material facts. In disciplinary hearings, the board may hold prehearing conferences which shall be exempt from the provisions of RSA 91-A, but any final disciplinary action or decision which occurs without holding a public hearing shall be publicly released at the time it is served upon the parties.
XI. Final disciplinary actions and other adjudicative decisions made by the board shall be in writing and served upon the parties. Such decisions shall not be released to the public until they are served upon the parties.
XII. Any person appearing at a board hearing or investigation may be represented by legal counsel or other representative, but the board shall have no obligation or authority to appoint or provide such representation.
XIII. The board shall hear any complaint not resolved at or prior to a preliminary hearing.
XIV. In the case of sanctions for discipline in another jurisdiction, the decision of the other jurisdiction's disciplinary authority may not be collaterally attacked and the board may impose any of the sanctions set forth in this chapter, but shall provide notice and an opportunity to be heard if it intends to impose sanctions above those imposed by the other jurisdiction.
Source. 2005, 293:1, eff. July 1, 2005 at 12:01 a.m.