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Oregon Bulletin

June 1, 2011

 

Oregon Medical Board
Chapter 847

Rule Caption: Adopts model rules for contested cases, authority of Executive Director, and confidentiality requirements in investigations.

Adm. Order No.: OMB 6-2011

Filed with Sec. of State: 4-25-2011

Certified to be Effective: 4-25-11

Notice Publication Date: 3-1-2011

Rules Adopted: 847-001-0022

Rules Amended: 847-001-0005, 847-001-0015

Subject: The proposed rule changes adopt the Attorney General’s 2008 rules for contested cases, delegate to the Executive Director the authority to take depositions and respond to requests to depose witnesses, and require licensees or applicants to protect the confidentiality of information obtained by the Board in the course of an investigation.

Rules Coordinator: Malar Ratnathicam—(971) 673-2713

847-001-0005

Model Rules for Contested Cases

The Oregon Medical Board adopts the Attorney General’s Uniform and Model Rules for Contested Cases of the Attorney General in effect on January 1, (2008), and all amendments thereto are hereby adopted by reference as rules of the Oregon Medical Board.

[ED. NOTE: The full text of the Attorney General’s Model Rules of Procedure is available from the office of the Attorney General or the Medical Board.]

Stat. Auth.: ORS 677.265

Stats. Implemented: ORS 183.335, 183.341, 677.275

Hist.: ME 4, f. 11-3-71, ef. 11-15-71; ME 26, f. 3-15-72, ef. 4-1-72; ME 27, f. 3-27-72, ef. 4-15-72; ME 30, f. 3-5-74, ef. 3-25-74; ME 32, f. & ef. 5-11-76; Renumbered from 847-060-0005; ME 2-1978, f. & ef. 7-31-78; ME 3-1980, f. & ef. 5-14-80; ME 6-1980, f. & ef. 8-13-80; ME 1-1982, f. & ef. 1-28-82; ME 5-1983, f. & ef. 11-3-83; ME 2-1986, f. & ef. 4-23-86; ME 14-1987, f. & ef. 8-3-87; ME 1-1988, f. & cert. ef. 1-29-88; ME 13-1988, f. & cert. ef. 10-20-88; ME 13-1988, f. & cert. ef. 10-20-88; ME 10-1990, f. & cert. ef. 8-7-90; ME 13-1990, f. & cert. ef. 8-16-90; ME 2-1992, f. & cert. ef. 4-17-92; ME 20-1994, f. & cert. ef. 10-26-94; BME 13-2000, f. & cert. ef. 10-30-00; BME 13-2004, f. & cert. ef. 7-13-04; BME 14-2006, f. & cert. ef. 7-25-06; OMB 6-2011, f. & cert. ef. 4-25-11

847-001-0015

Delegation of Authority

(1) The Oregon Medical Board (Board) has delegated to the Executive Director the authority to make certain procedural determinations on its behalf on matters arising under the Attorney General’s Model Rules for Contested Cases in OAR 137-003-0001 to OAR 137-003-0700. The procedural functions include, but are not limited to:

(a) For discovery requests before the Board, to authorize or deny requested discovery in a contested case, to include specifying the methods, timing and extent of discovery;

(b) To review all requests to take a deposition of a witness and to authorize or deny any request for deposition. If a request to take a deposition is authorized, the Executive Director may specify the terms on which the deposition is taken, to include, but not limited to the location, the manner of recording, the time of day, the persons permitted to be present, and the duration of the deposition;

(c) Whether a request for hearing filed after the prescribed time will be accepted, based upon a finding that the cause for failure to timely file a request for hearing was beyond the reasonable control of the party. In making this determination, the Executive Director may require the request to be supported by an affidavit or other writing to explain why the request is late and may conduct such further inquiry as deemed appropriate. The Executive Director may authorize a hearing on whether the late filing should be accepted. If any party disputes the facts contained in the explanation as to why the request was late or the accuracy of the reason that the request was late, the requestor has a right to a hearing before an Administrative Law Judge (ALJ) on the reasons for that factual dispute;

(d) Whether the late filing of a document may be accepted based upon a finding of good cause;

(e) Whether to issue a subpoena for the attendance of witnesses or to produce documents at the hearing;

(f) Prior to the issuance of a proposed order issued by an ALJ, whether the Board will consider taking notice of judicially cognizable facts or of general, technical or scientific facts in writing which are within the specialized knowledge of the Board;

(g) The Executive Director may decide whether to submit to the Board prior to an ALJ’s proposed final order the following issues:

(A) The Board’s interpretation of its rules and applicable statutes;

(B) Which rules or statutes are applicable to a proceeding;

(C) Whether the Board will answer a question transmitted to it by the ALJ.

(h) In regard to a proposed order issued by an ALJ, whether the Board’s legal representative will file exceptions and present argument to the Board;

(i) Before issuance of a proposed order, whether a party may obtain an immediate review from the Board on any of the following:

(A) A ruling on a motion to quash a subpoena under OAR 137-003-0585;

(B) A ruling refusing to consider as evidence judicially or officially noticed facts presented by the Board under OAR 137-003-0615 that is not rebutted by a party;

(C) A ruling on the admission or exclusion of evidence based on a claim of the existence or non-existence of a privilege.

(2) All actions taken under this delegation must be reported to the Board at the regularly scheduled meeting in which the Board deliberates on the proposed order in the case.

Stat. Auth.: ORS 677.265

Stats. Implemented: ORS 183.335, 183.341, 677.275

Hist.: BME 13-2000, f. & cert. ef. 10-30-00; BME 13-2004, f. & cert. ef. 7-13-04; BME 14-2006, f. & cert. ef. 7-25-06; OMB 6-2011, f. & cert. ef. 4-25-11

847-001-0022

Confidentiality in the Investigative Process

(1) Information pertaining to an ongoing investigation or Board action that has been disclosed to a licensee or applicant by the Board pursuant to ORS 676.175(3) is confidential and may be further disclosed by the licensee or applicant only to the extent necessary to prepare for a contested case hearing related to a Complaint and Notice of Proposed Disciplinary Action, a Notice of Denial of Licensure or an Order of Emergency Suspension issued against the licensee or applicant.

(2) All licensees and applicants under Board investigation or facing Board disciplinary action or license denial, to include consultants for a licensee, an applicant or the Board, have an obligation to protect the confidentiality of information obtained by the Board in an investigation.

(3) Violation of this rule is grounds for disciplinary action.

Stat. Auth.: ORS 677.265

Stats. Implemented: ORS 183.335, 183.341, 67

Hist.: OMB 6-2011, f. & cert. ef. 4-25-11

 

Rule Caption: Clarifies ongoing educational requirements for all licensees and method of audit and discipline for noncompliance.

Adm. Order No.: OMB 7-2011

Filed with Sec. of State: 4-25-2011

Certified to be Effective: 4-25-11

Notice Publication Date: 3-1-2011

Rules Amended: 847-008-0070

Subject: The amendment clarifies the ongoing educational requirements for all licensees, the method of audit, and the discipline to which a licensee will be subject if he or she fails to complete the required number of educational hours in a registration renewal period.

Rules Coordinator: Malar Ratnathicam—(971) 673-2713

847-008-0070

Continuing Medical Competency (Education)

The Oregon Medical Board is committed to ensuring the continuing competence of its licensees for the protection, safety and well being of the public. All licensees must engage in a culture of continuous quality improvement and lifelong learning.

(1) Licensees renewing with Active, Administrative Medicine Active, Locum Tenens, Telemedicine Active, Telemonitoring Active, or Teleradiology Active status must demonstrate ongoing competency to practice medicine by:

(a) Ongoing participation in re-certification by an American Board of Medical Specialties (ABMS) board, the American Osteopathic Association’s Bureau of Osteopathic Specialists (AOA-BOS), the American Board of Podiatric Orthopedics and Primary Podiatric Medicine (ABPOPPM), the National Commission on Certification of Physician Assistants (NCCPA), or the National Certification Commission for Acupuncture and Oriental Medicine (NCCAOM); or

(b) 60 hours of continuing medical education (CME) per two years relevant to the licensee’s current medical practice, or 30 hours of CME if licensed during the second year of the biennium, as follows:

(A) American Medical Association (AMA) Category 1;

(B) American Osteopathic Association (AOA) Category 1-A or 2-A;

(C) American Podiatric Medical Association’s (APMA) Council on Podiatric Medical Education approved sponsors of continuing education; or

(D) American Academy of Physician Assistants (AAPA) Category 1 (pre-approved); or

(c) 30 hours of NCCAOM-approved courses per two years relevant to the licensee’s current practice, or 15 hours if licensed during the second year of the biennium.

(2) Licensees renewing with Emeritus status must demonstrate ongoing competency by:

(a) Ongoing participation in re-certification by an ABMS board, the AOA-BOS, the ABPOPPM, the NCCPA, or the NCCAOM; or

(b) 15 hours of CME per year as follows:

(A) AMA Category 1 or 2;

(B) AOA Category 1-A, 1-B, 2-A or 2-B;

(C) APMA-approved continuing education; or

(D) AAPA Category 1 or 2; or

(c) 8 hours of NCCAOM-approved courses.

(3) Licensees who have lifetime certification with the ABMS, AOA-BOS, ABPOPPM, or NCCPA must submit the required CME in section (1) (b) of this rule or section (2) (b) of this rule if renewing with Emeritus status.

(4) Licensees who have lifetime certification with the NCCAOM must submit the required CME in section (1) (c) of this rule or section (2) (c) of this rule if renewing with Emeritus status.

(5) Upon renewal, the Board may audit a random sample of at least 10% of licensees for compliance with CME. Audited licensees have 30 days from the date of the audit to provide course certificates. Failure to comply or misrepresentation of compliance is grounds for disciplinary action.

(6) As the result of an audit, if licensee’s CME is deficient or licensee does not provide adequate documentation, the licensee will be fined $250 and must comply with CME requirements within 90 days from the date of the audit.

(a) If the licensee does not comply within 90 days of the date of the audit, the fine will increase to $1000; and

(b) If the licensee does not comply within 180 days of the date of the audit, the licensee’s license will be suspended for a minimum of 90 days.

(7) The following licensees are exempt from this rule:

(a) Licensees in residency training;

(b) Licensees serving in the military who are deployed outside Oregon for 90 days or more during the reporting period; and

(c) Volunteer Camp licensees.

Stat. Auth.: ORS 677.265

Stats. Implemented: ORS 677.265

Hist.: BME 2-2009, f. & cert. ef. 1-22-09; BME 16-2009, f. & cert. ef. 10-23-09; OMB 7-2011, f. & cert. ef. 4-25-11

 

Rule Caption: Changes to EMT-P scope of practice: Central IV access, medications and blood products, ECG monitoring.

Adm. Order No.: OMB 8-2011

Filed with Sec. of State: 4-25-2011

Certified to be Effective: 4-25-11

Notice Publication Date: 2-1-2009

Rules Amended: 847-035-0030

Subject: The proposed rule change allows EMT-Ps to access indwelling catheters and implanted central IV ports for fluid and medical administration; adds language that EMT-Ps may administer any medication or blood product after adequate and appropriate instruction, including risks, benefits and use of the medication; and allows EMT-Ps to initiate and interpret ECG monitoring.

      This is to correct an inadvertent filing error. Removing language from section (11)(l), adding to section (12)(i).

Rules Coordinator: Malar Ratnathicam—(971) 673-2713

847-035-0030

Scope of Practice

(1) The Oregon Medical Board has established a scope of practice for emergency and nonemergency care for First Responders and EMTs. First Responders and EMTs may provide emergency and nonemergency care in the course of providing prehospital care as an incident of the operation of ambulance and as incidents of other public or private safety duties, but is not limited to “emergency care” as defined in OAR 847-035-0001(5).

(2) The scope of practice for First Responders and EMTs is not intended as statewide standing orders or protocols. The scope of practice is the maximum functions which may be assigned to a First Responder or EMT by a Board-approved supervising physician.

(3) Supervising physicians may not assign functions exceeding the scope of practice; however, they may limit the functions within the scope at their discretion.

(4) Standing orders for an individual EMT may be requested by the Board or Section and shall be furnished upon request.

(5) No EMT may function without assigned standing orders issued by Board-approved supervising physician.

(6) An Oregon-certified First Responder or EMT, acting through standing orders, shall respect the patient’s wishes including life-sustaining treatments. Physician supervised First Responders and EMTs shall request and honor life-sustaining treatment orders executed by a physician, nurse practitioner or physician assistant if available. A patient with life-sustaining treatment orders always requires respect, comfort and hygienic care.

(7) A First Responder may perform the following procedures without having signed standing orders from a supervising physician:

(a) Conduct primary and secondary patient examinations;

(b) Take and record vital signs;

(c) Utilize noninvasive diagnostic devices in accordance with manufacturer’s recommendation;

(d) Open and maintain an airway by positioning the patient’s head;

(e) Provide external cardiopulmonary resuscitation and obstructed airway care for infants, children, and adults;

(f) Provide care for soft tissue injuries;

(g) Provide care for suspected fractures;

(h) Assist with prehospital childbirth; and

(i) Complete a clear and accurate prehospital emergency care report form on all patient contacts and provide a copy of that report to the senior EMT with the transporting ambulance.

(8) A First Responder may perform the following additional procedures only when the First Responder is part of an agency which has a Board-approved supervising physician who has issued written standing orders to that First Responder authorizing the following:

(a) Administration of medical oxygen;

(b) Maintain an open airway through the use of:

(A) A nasopharyngeal airway device;

(B) A noncuffed oropharyngeal airway device;

(C) A Pharyngeal suctioning device.

(c) Operate a bag mask ventilation device with reservoir;

(d) Provision of care for suspected medical emergencies, including administering liquid oral glucose for hypoglycemia; and

(e) Administer epinephrine by automatic injection device for anaphylaxis;

(f) Perform cardiac defibrillation with an automatic or semi-automatic defibrillator, only when the First Responder:

(A) Has successfully completed a Section- approved course of instruction in the use of the automatic or semi-automatic defibrillator; and

(B) Complies with the periodic requalification requirements for automatic or semi-automatic defibrillator as established by the Section.

(9) An Oregon-certified EMT-Basic may perform the following procedures:

(a) Perform all procedures that an Oregon-certified First Responder can perform;

(b) Ventilate with a non-invasive positive pressure delivery device;

(c) Insert a cuffed pharyngeal airway device in the practice of airway maintenance. A cuffed pharyngeal airway device is:

(A) A single lumen airway device designed for blind insertion into the esophagus providing airway protection where the cuffed tube prevents gastric contents from entering the pharyngeal space; or

(B) A multi-lumen airway device designed to function either as the single lumen device when placed in the esophagus, or by insertion into the trachea where the distal cuff creates an endotracheal seal around the ventilatory tube preventing aspiration of gastric contents.

(d) Perform tracheobronchial tube suctioning on the endotracheal intubated patient;

(e) Provide external cardiopulmonary resuscitation and obstructed airway care for infants, children, and adults;

(f) Provide care for suspected shock, including the use of the pneumatic anti-shock garment;

(g) Provide care for suspected medical emergencies, including:

(A) Obtaining a capillary blood specimen for blood glucose monitoring;

(B) Administer epinephrine by subcutaneous injection or automatic injection device for anaphylaxis;

(C) Administer activated charcoal for poisonings; and

(D) Administer aspirin for suspected myocardial infarction.

(h) Perform cardiac defibrillation with an automatic or semi-automatic defibrillator;

(i) Transport stable patients with saline locks, heparin locks, foley catheters, or in-dwelling vascular devices;

(j) Perform other emergency tasks as requested if under the direct visual supervision of a physician and then only under the order of that physician;

(k) Complete a clear and accurate prehospital emergency care report form on all patient contacts;

(l) Assist a patient with administration of sublingual nitroglycerine tablets or spray and with metered dose inhalers that have been previously prescribed by that patient’s personal physician and that are in the possession of the patient at the time the EMT-Basic is summoned to assist that patient;

(m) In the event of a release of military chemical warfare agents from the Umatilla Army Depot, the EMT-Basic who is a member or employee of an EMS agency serving the DOD-designated Immediate Response Zone who has completed a Section-approved training program may administer atropine sulfate and pralidoxime chloride from a Section-approved pre-loaded auto-injector device, and perform endotracheal intubation, using protocols promulgated by the Section and adopted by the supervising physician. 100% of EMT-Basic actions taken pursuant to this section shall be reported to the Section via a copy of the prehospital emergency care report and shall be reviewed for appropriateness by Section staff and the Subcommittee on EMT Certification, Education and Discipline;

(n) In the event of a release of organophosphate agents the EMT-Basic, who has completed Section-approved training, may administer atropine sulfate and pralidoxime chloride by autoinjector, using protocols approved by the Section and adopted by the supervising physician; and

(o) In the event of a declared Mass Casualty Incident (MCI) as defined in the local Mass Casualty Incident plan, the EMT-Basic may monitor patients who have isotonic intravenous fluids flowing.

(10) An Oregon certified Advanced Emergency Medical Technician (AEMT) may perform the following procedures:

(a) Perform all procedures that an Oregon-certified EMT-Basic can perform;

(b) Initiate and maintain peripheral intravenous (I.V.) lines;

(c) Initiate saline or similar locks;

(d) Draw peripheral blood specimens;

(e) Initiate and maintain an intraosseous in the pediatric patient;

(f) Tracheobronchial suctioning of an already intubated patient;

(g) Adminster the following medications under specific written protocols authorized by the supervising physician or direct orders from a licensed physician:

(A) Physiologic isotonic crystalloid solution.

(B) Anaphylaxis; epinephrine

(C) Antidotes: Naloxene hydrochloride;

(D) Anthihypoglycemics:

(i) Hypertonic glucose,

(ii) Glucagon

(E) Vasodilators: Nitroglycerine;

(F) Nebulized bronchodilators:

(i) Albuterol;

(ii) Ipratropium bromide;

(G) Analgesics for acute pain: nitrous oxide.

(11) An Oregon certified EMT-Intermediate may perform the following procedures:

(a) Perform all procedures that an Oregon-certified Advanced EMTcan perform;

(b) Initiate and maintain an intraosseous infusion;

(c) Administer the following medications under specific written protocols authorized by the supervising physician, or direct orders from a licensed physician:

(A) Vasoconstrictors:

(i) Epinephrine;

(ii) Vasopressin;

(B) Antiarrhythmics:

(i) Atropine sulfate;

(ii) Lidocaine;

(iii) Amiodarone;

(C) Analgesics for acute pain:

(i) Morphine;

(ii) Nalbuphine Hydrochloride;

(iii) Ketorolac tromethamine;

(iv) Fentanyl;

(D) Antihistamine: Diphenhydramine;

(E) Diuretic: Furosemide;

(F) Intraosseous infusion anesthetic; Lidocaine;

(G) Anti-Emetic: Ondansetron;

(d) Administer immunizations in the event of an outbreak or epidemic as declared by the Governor of the state of Oregon, the State Public Health Officer or a county health officer, as part of an emergency immunization program, under the agency’s supervising physician’s standing order;

(e) Administer immunizations for seasonal and pandemic influenza vaccinations according to the CDC Advisory Committee on Immunization Practices (ACIP), and/or the Oregon State Public Health Officer’s recommended immunization guidelines as directed by the agency’s supervising physician’s standing order.

(f) Distribute medications at the direction of the Oregon State Public Health Officer as a component of a mass distribution effort.

(g) Administer routine or emergency immunizations, as part of an EMS Agency’s occupational health program, to the EMT’s EMS agency personnel, under the supervising physician’s standing order.

(h) Insert an orogastric tube;

(i) Maintain during transport any intravenous medication infusions or other procedures which were initiated in a medical facility, and if clear and understandable written and verbal instructions for such maintenance have been provided by the physician, nurse practitioner or physician assistant at the sending medical facility;

(j) Electrocardiographic rhythm interpretation;

(k) Perform cardiac defibrillation with a manual defibrillator.

(12) An Oregon-certified EMT-Paramedic may perform the following procedures:

(a) Perform all procedures that an Oregon-certified EMT-Intermediate can perform;

(b) Initiate the following airway management techniques:

(A) Endotracheal intubation;

(B) Cricothyrotomy; and

(C) Transtracheal jet insufflation which may be used when no other mechanism is available for establishing an airway.

(c) Initiate a nasogastric tube;

(d) Provide advanced life support in the resuscitation of patients in cardiac arrest;

(e) Perform emergency cardioversion in the compromised patient;

(f) Attempt external transcutaneous pacing of bradycardia that is causing hemodynamic compromise;

(g) Electrocardiographic interpretation.

(h) Initiate needle thoracentesis for tension pneumothorax in a prehospital setting;

(i) Access indwelling catheters and implanted central IV ports for fluid and medication administration.

(j) Initiate placement of a urinary catheter for trauma patients in a prehospital setting who have received diuretics and where the transport time is greater than thirty minutes; and

(k) Initiate or administer any medications or blood products under specific written protocols authorized by the supervising physician, or direct orders from a licensed physician.

(13) The Board has delegated to the Section the following responsibilities for ensuring that these rules are adhered to:

(a) Designing the supervising physician and agent application;

(b) Approving a supervising physician or agent; and

(c) Investigating and disciplining any EMT or First Responder who violates their scope of practice.

(d) The Section shall provide copies of any supervising physician or agent applications and any EMT or First Responder disciplinary action reports to the Board upon their request.

(14) The Section shall immediately notify the Board when questions arise regarding the qualifications or responsibilities of the supervising physician or agent of the supervising physician.

Stat. Auth.: ORS 682.245

Stats. Implemented: ORS 682.245

Hist.: ME 2-1983, f. & ef. 7-21-83; ME 3-1984, f. & ef. 1-20-84; ME 12-1984, f. & ef. 8-2-84; ME 7-1985, f. & ef. 8-5-85; ME 12-1987, f. & ef. 4-28-87; ME 27-1987(Temp), f. & ef. 11-5-87; ME 5-1988, f. & cert. ef. 1-29-88; ME 12-1988, f. & cert. ef. 8-5-88; ME 15-1988, f. & cert. ef. 10-20-88; ME 2-1989, f. & cert. ef. 1-25-89; ME 15-1989, f. & cert. ef. 9-5-89, & corrected 9-22-89; ME 6-1991, f. & cert. ef. 7-24-91; ME 10-1993, f. & cert. ef. 7-27-93; ME 3-1995, f. & cert. ef. 2-1-95; ME 1-1996, f. & cert. ef. 2-15-96; ME 3-1996, f. & cert. ef. 7-25-96; BME 6-1998, f. & cert. ef. 4-27-98; BME 13-1998(Temp), f. & cert. ef. 8-6-98 thru 2-2-99; BME 14-1998, f. & cert. ef. 10-26-98; BME 16-1998, f. & cert. ef. 11-24-98; BME 13-1999, f. & cert. ef. 7-23-99; BME 14-2000, f. & cert. ef. 10-30-00; BME 11-2001, f. & cert. ef. 10-30-01; BME 9-2002, f. & cert. ef. 7-17-02; BME 10-2002, f. & cert. ef. 7-22-02; BME 1-2003, f. & cert. ef. 1-27-03; BME 12-2003, f. & cert. ef. 7-15-03; BME 4-2004, f. & cert. ef. 1-27-04; BME 11-2004(Temp), f. & cert. ef. 4-22-04 thru 10-15-04; BME 12-2004(Temp), f. & cert. ef. 6-11-04 thru 12-8-04; BME 21-2004(Temp), f. & cert. ef. 11-15-04 thru 4-15-05; BME 2-2005, f. & cert. ef. 1-27-05; BME 5-2005, f. & cert. ef. 4-21-05; BME 9-2005, f. & cert. ef. 7-20-05; BME 18-2006, f. & cert. ef. 7-25-06; BME 22-2006, f. & cert. ef. 10-23-06; BME 7-2007, f. & cert. ef. 1-24-07; BME 11-2007, f. & cert. ef. 4-26-07; BME 24-2007, f. & cert. ef. 10-24-07; BME 11-2008, f. & cert. ef. 4-24-08; BME 19-2008, f. & cert. ef. 7-21-08; BME 10-2009, f. & cert. ef. 5-1-09; BME 13-2009, f. & cert. ef. 7-20-09; BME 18-2009, f. & cert. ef. 10-23-09; BME 22-2009(Temp), f. & cert. ef. 10-23-09 thru 4-15-10; BME 5-2010, f. & cert. ef. 1-26-10; BME 8-2010(Temp), f. & cert. ef. 4-26-10 thru 10-15-10; BME 12-2010, f. & cert. ef. 7-26-10; BME 18-2010, f. & cert. ef. 10-25-10; OMB 1-2011, f. & cert. ef. 2-11-11; OMB 5-2011, f. & cert. ef. 4-8-11; OMB 8-2011, f. & cert. ef. 4-25-11

 

Rule Caption: Implements Health Professionals’ Services Program for licensees with substance use or mental disorders.

Adm. Order No.: OMB 9-2011

Filed with Sec. of State: 4-25-2011

Certified to be Effective: 4-25-11

Notice Publication Date: 3-1-2011

Rules Adopted: 847-065-0070

Rules Amended: 847-065-0010, 847-065-0015, 847-065-0020, 847-065-0025, 847-065-0030, 847-065-0035, 847-065-0040, 847-065-0045, 847-065-0050, 847-065-0055, 847-065-0060, 847-065-0065

Subject: The proposed rule implements the Health Professionals’ Services Program (HPSP), pursuant to ORS 676.185-200, for licensees with substance use or mental disorders and contains clarifying language for positive toxicology test result, safe practice investigation, disclosure of written evaluation and agreement, approval of independent third-party evaluator, and substantial non-compliance report. The rule amendment adds a requirement to enroll in HPSP for licensees with primary residence or work site outside of Oregon. The rule amendment also makes grammatical corrections.

Rules Coordinator: Malar Ratnathicam—(971) 673-2713

847-065-0010

Purpose, Intent and Scope

The Oregon Medical Board recognizes that substance use disorders and/or mental disorders are potentially progressive, chronic diseases. The Board believes that physicians, podiatric physicians, physician assistants and acupuncturists who develop these diseases can, with appropriate treatment, be assisted with recovery and return to the practice of medicine and acupuncture. It is the intent of the Board that a licensee with a substance use disorder and/or mental disorder may have the opportunity to enter the Health Professionals’ Services Program (HPSP). Participation in the HPSP does not shield a licensee from possible disciplinary action.

Stat. Auth.: ORS 676.185-200 & 677.265

Stats. Implemented: ORS 677.185 & 677.265

Hist.: BME 15-2010(Temp), f. & cert. ef. 8-3-10 thru 1-18-11; BME 20-2010, f. & cert. ef. 10-25-10; OMB 9-2011, f. & cert. ef. 4-25-11

847-065-0015

Definitions

The following definitions apply to OAR chapter 847, division 065, except as otherwise stated in the definition:

(1) “Assessment or evaluation” means the process an independent third-party evaluator uses to diagnose the licensee and to recommend treatment options for the licensee.

(2) “Board” means the Oregon Medical Board.

(3) “Business day” means Monday through Friday, except legal holidays as defined in ORS 187.010 (or ORS 187.020).

(4) “Diagnosis” means the principal mental health or substance use diagnosis listed in the Diagnostic Statistical Manual (DSM). The diagnosis is determined through the assessment and any examinations, tests or consultations suggested by the assessment.

(5) “Division” means the Department of Human Services, Addictions and Mental Health Division.

(6) “DSM” means the Diagnostic and Statistical Manual of Mental Disorders, commonly referred to as DSM-IV-TR, published by the American Psychiatric Association.

(7) “Federal regulations” means:

(a) As used in ORS 676.190(1)(f)(D), a “positive toxicology test result as determined by federal regulations pertaining to drug testing” means a test result[s] that meets or exceeds the cutoff concentrations shown in 49 CFR § 40.87 (2009)

(b) As used in ORS 676.190(4)(i), requiring a “licensee to submit to random drug or alcohol testing in accordance with federal regulations” means licensees are selected for random testing by a scientifically valid method, such as a random number table or a computer-based random number generator that is matched with licensees’ unique identification numbers or other comparable identifying numbers. Under the selection process used, each covered licensee must have an equal chance of being tested each time selections are made, as described in 40 CFR § 199.105(c)(5) (2009). Random drug tests must be unannounced and the dates for administering random tests must be spread reasonably throughout the calendar year, as described in 40 CFR § 199.105(c)(7) (2009).

(8) “Fitness to practice evaluation” means the process a qualified, independent third-party evaluator uses to determine if the licensee can safely perform the essential functions of the licensee’s health practice.

(9) “Final enrollment” means a self-referred licensee has provided all documentation required by OAR 847-065-0035 and has met all eligibility requirements to participate in the HPSP.

(10) “Independent third-party evaluator” means an individual or center who is approved by the Board to evaluate, diagnose, and offer treatment options for substance use disorders and/or mental disorders

(11) “Licensee” means a licensed physician, podiatric physician, physician assistant or acupuncturist who is licensed or certified by the Board.

(12) “Mental disorder” means a clinically significant syndrome identified in the current DSM that is associated with disability or with significantly increased risk of

(13) “Monitoring agreement” means an individualized agreement between a licensee and the vendor that meets the requirements for a diversion agreement set by ORS 676.190.

(14) “Monitoring entity” means an independent third party that monitors licensees, vendor enrollment status, and monitoring agreement compliance.

(15) “Positive toxicology test result” means a test result that meets or exceeds the cutoff concentrations shown in 49 CFR § 40.87 (2009), a test result that shows other drugs or alcohol, or a test result that fails to show the appropriate presence of a currently prescribed drug that is part of a treatment program related to a condition being monitored by HPSP.

(16) “Provisional enrollment” means temporary enrollment, pending verification that a licensee meets all program eligibility criteria.

(17) “Self-referred licensee” means a licensee who seeks to participate in the program without a referral from the Board.

(18) “Substance abuse” means a disorder related to the taking of a drug of abuse (including alcohol); to the side effects of a medication; and to a toxin exposure, including: substance use disorders (substance dependence and substance abuse) and substance-induced disorders (including but not limited to substance intoxication, withdrawal, delirium, and dementia, as well as substance induced psychotic disorders and mood disorders), as defined in DSM criteria.

(19) “Substantial non-compliance” means that a licensee is in violation of the terms of his or her monitoring agreement in a way that gives rise to concerns about the licensee’s ability or willingness to participate in the HPSP. Substantial non-compliance and non-compliance include, but are not limited to, the factors listed in ORS 676.190(1)(f). Conduct that occurred before a licensee entered into a monitoring agreement does not violate the terms of that monitoring agreement.

(20) “Successful completion” means that for the period of time deemed necessary by the vendor or the Board, the licensee has complied with the licensee’s monitoring agreement to the satisfaction of the vendor and/or the Board.

(21) “Toxicology testing” means urine testing or alternative chemical monitoring including blood, saliva, breath or hair as conducted by a laboratory certified, accredited or licensed and approved for toxicology testing.

(22) “Treatment” means the planned, specific, individualized health and behavioral-health procedures, activities, services and supports that a treatment provider uses to remediate symptoms of a substance use disorder and/or mental disorder.

(23) “Vendor” means the entity that has contracted with the Division to conduct the HPSP.

Stat. Auth.: ORS 676.185-200 & 677.265

Stats. Implemented: ORS 677.185 & 677.265

Hist.: BME 15-2010(Temp), f. & cert. ef. 8-3-10 thru 1-18-11; BME 20-2010, f. & cert. ef. 10-25-10; OMB 9-2011, f. & cert. ef. 4-25-11

847-065-0020

Participation in Health Professionals Services Program

Effective July 1, 2010, the Board must participate in the Health Professionals’ Services Program and may refer eligible licensees to the vendor in lieu of or in addition to discipline. Only licensees who meet the eligibility criteria may be referred by the Board to the vendor.

Stat. Auth.: ORS 676.185-200 & 677.265

Stats. Implemented: ORS 677.185 & 677.265

Hist.: BME 15-2010(Temp), f. & cert. ef. 8-3-10 thru 1-18-11; BME 20-2010, f. & cert. ef. 10-25-10; OMB 9-2011, f. & cert. ef. 4-25-11

847-065-0025

Eligibility for Participation in Health Professionals Services Program

(1) Licensee must be evaluated by an independent third-party evaluator (2) The evaluation must include a diagnosis of a substance use disorder and/or mental disorder with the appropriate diagnostic code from the DSM, and treatment options.

(3) Licensee must provide a written statement agreeing to enter the HPSP and agreeing to abide by all rules established by the Board.

(4) Licensee must enter into the “HPSP Monitoring Agreement.”

(5) The Board will perform a safe practice investigation for Board-referred licensees. The vendor will perform a safe practice investigation for self-referred licensees.

Stat. Auth.: ORS 676.185-200 & 677.265

Stats. Implemented: ORS 677.185 & 677.265

Hist.: BME 15-2010(Temp), f. & cert. ef. 8-3-10 thru 1-18-11; BME 20-2010, f. & cert. ef. 10-25-10; OMB 9-2011, f. & cert. ef. 4-25-11

847-065-0030

Procedure for Board Referrals

(1) When the Board receives information involving a licensee who may have substance abuse and/or a mental disorder, the Board staff will investigate and complete a report to be presented at a Board meeting.

(2) The Board will review the report and determine if the licensee meets the eligibility criteria for the HPSP.

(3) If licensee meets eligibility criteria and the Board approves entry into the HPSP, the Board will provide a written referral. The referral must include:

(a) A copy of the report from the independent third-party evaluator who diagnosed the licensee;

(b) The treatment options developed by the independent third-party evaluator;

(c) A statement that the Board has investigated the licensee’s professional practice and conduct;

(d) A description of any restrictions imposed by the Board or recommended by the Board on the licensee’s professional practice;

(e) A written statement from the licensee agreeing to enter the HPSP and agreeing to abide by all terms and conditions established by the vendor; and

(f) A statement that the licensee has agreed to report any arrest for or conviction of a misdemeanor or felony crime to the Board within three business days after the licensee is arrested or convicted.

(4) A Board-referred licensee is enrolled in the program effective on the date the licensee signs the consents and the monitoring agreement required by ORS 676.190.

Stat. Auth.: ORS 676.185-200 & 677.265

Stats. Implemented: ORS 677.185 & 677.265

Hist.: BME 15-2010(Temp), f. & cert. ef. 8-3-10 thru 1-18-11; BME 20-2010, f. & cert. ef. 10-25-10; OMB 9-2011, f. & cert. ef. 4-25-11

847-065-0035

Procedure for Self- Referred Licensees

Self-referred licensees may participate in the HPSP as permitted by ORS 676.190(5).

(1) Provisional Enrollment: To be provisionally enrolled in the program, a self-referred licensee must:

(a) Sign a written consent allowing disclosure and exchange of information among the vendor, the monitoring entity, the licensee’s employer, independent third-party evaluators and treatment providers;

(b) Sign a written consent allowing disclosure and exchange of information among the vendor, the Board, the monitoring entity, the licensee’s employer, independent third-party evaluators and treatment providers in the event the vendor determines the licensee to be in substantial non-compliance with his or her monitoring agreement as defined in OAR 847-065-0065;

(c) Attest that the licensee is not, to the best of the licensee’s knowledge, under investigation by his or her Board; and

(d) Agree to and sign a monitoring agreement.

(2) Upon provisional enrollment, the vendor must send to the monitoring entity copies of the signed consents and the monitoring agreement, described in section (1) of this rule.

(3) Final Enrollment: To move from provisional enrollment to final enrollment in the program, a self-referred licensee must:

(a) Obtain at the licensee’s own expense and provide to the vendor, an independent third-party evaluator’s written evaluation containing a DSM diagnosis and diagnostic code and treatment recommendations;

(b) Agree to cooperate with the vendor’s investigation to determine whether the licensee’s practice while impaired presents or has presented a danger to the public; and

(c) Enter into an amended monitoring agreement, if required by the vendor.

(4) Once a self-referred licensee seeks enrollment in the HPSP, failure to complete final enrollment may constitute substantial non-compliance and may be reported to the Board.

(5) Upon final enrollment of a self-referred licensee, the vendor must send to the monitoring entity a copy of the written evaluation by the independent third-party evaluator and a copy of the amended monitoring agreement, if any. The purpose of the disclosure is to permit the vendor and the monitoring entity to notify the Board if the vendor determines the licensee to be in substantial non-compliance with his or her monitoring agreement.

Stat. Auth.: ORS 676.185-200 & 677.265

Stats. Implemented: ORS 677.185 & 677.265

Hist.: BME 15-2010(Temp), f. & cert. ef. 8-3-10 thru 1-18-11; BME 20-2010, f. & cert. ef. 10-25-10; OMB 9-2011, f. & cert. ef. 4-25-11

847-065-0040

Disqualification Criteria

Licensees, either Board-referred or self-referred, may be disqualified from entering the HPSP for factors including, but not limited to:

(1) Licensee’s disciplinary history;

(2) Severity and duration of the licensee’s impairment;

(3) Extent to which licensee’s practice can be limited or managed to eliminate danger to the public;

(4) If licensee’s impairment cannot be managed with treatment and monitoring;

(5) Evidence of criminal history that involves injury or endangerment to others;

(6) Evidence of sexual misconduct;

(7) Evidence of non-compliance with a monitoring program from another state;

(8) Pending investigations with the Board or boards from other states;

(9) Previous Board investigations with findings of substantiated abuse or dependence; and

(10) Prior enrollment in, but failure to successfully complete, the Oregon Medical Board Health Professionals Program.

Stat. Auth.: ORS 676.185-200 & 677.265

Stats. Implemented: ORS 677.185 & 677.265

Hist.: BME 15-2010(Temp), f. & cert. ef. 8-3-10 thru 1-18-11; BME 20-2010, f. & cert. ef. 10-25-10; OMB 9-2011, f. & cert. ef. 4-25-11

847-065-0045

Approval of Independent Third-Party Evaluators

(1) To be approved by the Board as an independent third-party evaluator, an evaluator must be:

(a) Licensed as required by the jurisdiction in which the evaluator works;

(b) Able to provide a comprehensive assessment of and written report describing a licensee’s diagnosis, degree of impairment, and treatment options; and

(c) Able to facilitate a urinalysis of the licensee at intake.

(d) The Board reserves the right to not approve an independent third-party evaluator for any reason.

(2) The Board or vendor will not accept an evaluator as independent in a particular case if, in the Board’s or vendor’s judgment, the evaluator’s judgment is likely to be influenced by a personal or professional relationship with a licensee.

Stat. Auth.: ORS 676.185-200 & 677.265

Stats. Implemented: ORS 677.185 & 677.265

Hist.: BME 15-2010(Temp), f. & cert. ef. 8-3-10 thru 1-18-11; BME 20-2010, f. & cert. ef. 10-25-10; OMB 9-2011, f. & cert. ef. 4-25-11

847-065-0050

Approval of Treatment Providers

(1) To be approved by the Board as a treatment provider, a provider must be:

(a) Licensed as required by the jurisdiction in which the provider works;

(b) Able to provide appropriate treatment considering licensee’s diagnosis, degree of impairment, and treatment options proposed by the independent third-party evaluator; and

(c) Able to facilitate a urinalysis of the licensee at intake.

(2) A treatment provider may not have a personal or professional relationship with a licensee.

(3) The Board will maintain a list of treatment providers available to licenses upon request.

Stat. Auth.: ORS 676.185-200 & 677.265

Stats. Implemented: ORS 677.185 & 677.265

Hist.: BME 15-2010(Temp), f. & cert. ef. 8-3-10 thru 1-18-11; BME 20-2010, f. & cert. ef. 10-25-10; OMB 9-2011, f. & cert. ef. 4-25-11

847-065-0055

Licensee Responsibilities

(1) All licensees must:

(a) Agree to report any arrest for or conviction of a misdemeanor or felony crime to the vendor within three business days after the licensee is arrested or convicted of the crime; [and]

(b) Comply continuously with his or her monitoring agreement, including any restrictions on his or her practice, for at least two years or longer, as specified in the monitoring agreement.

(c) Abstain from mind-altering or intoxicating substances or potentially addictive drugs, unless the drug is approved by the vendor and prescribed for a documented medical condition by a person authorized by law to prescribe the drug to the licensee;

(d) Report use of mind-altering or intoxicating substances or potentially addictive drugs within 24 hours to vendor;

(e) Participate in a treatment plan approved by a third-party evaluator or treatment provider;

(f) Limit practice as required by the vendor or the Board;

(g) Cooperate with supervised monitoring of practice;

(h) Participate in a follow-up evaluation, when necessary, of licensee’s fitness to practice;

(i) Submit to random drug or alcohol testing;

(j) Report at least weekly to the vendor regarding the licensee’s compliance with the monitoring agreement;

(k) Report applications for licensure in other states, changes in employment and changes in practice setting to the vendor;

(l) Agree to be responsible for the cost of evaluations, toxicology testing, treatment and monitoring;

(m) Report to the vendor any investigations or disciplinary action by any state, or state or federal agency, including Oregon;

(n) Participate in required meetings according to the treatment plan; and

(o) Maintain current license status and/or report any changes in license status.

Stat. Auth.: ORS 676.185-200 & 677.265

Stats. Implemented: ORS 677.185 & 677.265

Hist.: BME 15-2010(Temp), f. & cert. ef. 8-3-10 thru 1-18-11; BME 20-2010, f. & cert. ef. 10-25-10; OMB 9-2011, f. & cert. ef. 4-25-11

847-065-0060

Completion Requirements

(1) The time spent participating in a monitored program before transferring from the Health Professionals Program to the Health Professionals’ Services Program effective July 1, 2010, will be counted toward the required term of monitored practice.

(2) The licensee will remain enrolled in the program for a minimum of two consecutive years.

Stat. Auth.: ORS 676.185-200 & 677.265

Stats. Implemented: ORS 677.185 & 677.265

Hist.: BME 15-2010(Temp), f. & cert. ef. 8-3-10 thru 1-18-11; BME 20-2010, f. & cert. ef. 10-25-10; OMB 9-2011, f. & cert. ef. 4-25-11

847-065-0065

Substantial Non-Compliance Criteria

(1) The vendor will report substantial non-compliance with a diversion agreement to the monitoring entity within one business day after the vendor learns of the substantial non-compliance, including but not limited to information that a licensee:

(a) Engaged in criminal behavior;

(b) Engaged in conduct that caused injury, death or harm to the public, including engaging in sexual impropriety with a patient;

(c) Was impaired in a health care setting in the course of the licensee’s employment;

(d) Received a positive toxicology test result;

(e) Violated a restriction on the license’s practice imposed by the vendor or the Board;

(f) Was admitted to the hospital for mental illness or adjudged to be mentally incompetent;

(g) Entered into a diversion agreement, but failed to participate in the HPSP;

(h) Was referred to the HPSP, but failed to enroll in the HPSP;

(i) Forged, tampered, or modified a prescription;

(j) Violated any rules of prescriptive authority;

(k) Violated any provisions of OAR 847-065-0055;

(l) Violated any terms of the diversion agreement; or

(m) Failed to complete the monitored practice requirements as stated in OAR 847-065-0060.

(2) The monitoring entity will report substantial non-compliance with a diversion agreement to the Board within one business day of receiving a report from the vendor.

 (3) The Board, upon being notified of a licensee’s substantial non-compliance, will investigate and determine the appropriate sanction.

(4) In order to investigate a report of substantial non-compliance, the Board may request the vendor to provide the licensee’s complete record, and the vendor must send these records to the Board as long as a valid release of information is in place.

Stat. Auth.: ORS 676.185-200 & 677.265

Stats. Implemented: ORS 677.185 & 677.265

Hist.: BME 15-2010(Temp), f. & cert. ef. 8-3-10 thru 1-18-11; BME 20-2010, f. & cert. ef. 10-25-10; OMB 9-2011, f. & cert. ef. 4-25-11

847-065-0070

Licensees with Primary Residence or Work Site Outside of Oregon

If a licensee’s primary residence or work site is located outside the State of Oregon, the licensee must enroll in the HPSP, in accordance with OAR 847-065-0025 and 847-065-0030 for Board-referred or OAR 847-065-0035 for self-referred licensees, and may choose to be monitored by the out-of-state’s health professional program if the following conditions are met:

(1) The other state’s health professional program is substantially similar with the relevant Oregon statutes. It is the duty of the vendor to verify this information and notify the Board of any discrepancies;

(2) The other state’s health professional program sends quarterly reports on the licensees to the vendor; and

(3) The other state’s health professional program will promptly report any substantial non-compliance with the licensee’s diversion agreement to the vendor.

Stat. Auth.: ORS 676.185-200 & 677.265

Stats. Implemented: ORS 677.185 & 677.265

Hist.: OMB 9-2011, f. & cert. ef. 4-25-11

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.

2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use

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