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36-4 PHYSICIANS AND SURGEONS
CHAPTER 36-4

PHYSICIANS AND SURGEONS

36-4-1      Board of examiners--Appointment and terms of members--Vacancies.
36-4-2      Composition of board--Qualifications of members.
36-4-2.1      Lay members of board--Appointment and term of office.
36-4-3      Officers of board--Executive secretary--Seal.
36-4-4      Meetings of board.
36-4-4.1      Board continued within Department of Health--Records and reports.
36-4-5      Compensation and expenses of board members--Fees held in special fund--Bond--Payments from fund.
36-4-6      Equipment, supplies, and services for board--Expenses restricted to revenue.
36-4-7      Annual report to Governor.
36-4-8      Practice of medicine without a license, certificate, or permit as misdemeanor.
36-4-8.1      Corporation prohibited from practice of medicine or osteopathy.
36-4-8.2      Surgery constituting practice of medicine.
36-4-9      Use of title and other acts constituting practice of medicine.
36-4-10      Practitioners and officers exempt from chapter--Application to previously licensed physicians.
36-4-11      Application for license--Qualifications of licensee--Examination--Educational requirements.
36-4-11.1      Criminal background investigation of applicants for licensure and licensees under disciplinary investigation--Fees.
36-4-12      Repealed.
36-4-12.1      Application of medical or osteopathic college for approval--Inspection.
36-4-12.2      List of approved colleges.
36-4-12.3      Hearing on refusal to approve college.
36-4-12.4      Information furnished by approved colleges.
36-4-12.5      Hearing on refusal to renew approval of college.
36-4-13      Hospitals recognized for internship--Inspection by board.
36-4-14      Repealed.
36-4-15      False or fraudulent diploma or affidavit as misdemeanor.
36-4-16      Return of fee on withdrawal of application or failure to examine.
36-4-17      Written examination required--Discrimination between systems of medicine prohibited--Minimum grade--Reexamination--Fee--Preservation of grades.
36-4-17.1      Examination of applicant with dual MD-PhD degree.
36-4-18      Grant of license to practice--Type of practice stated on license.
36-4-19      License based on certificate from national board or another state--Fee.
36-4-19.1      Contents of application for license based on certificate from national board or another jurisdiction--Consideration by board.
36-4-20      Temporary permits for supervised practice in state institution--Qualifications of applicants--Duration and renewal.
36-4-20.1      Locum tenens certificate defined.
36-4-20.2      Petition and application for locum tenens certificate--Fee--Personal appearance required.
36-4-20.3      Issuance of locum tenens certificate by single member of board--Notice to other members--Objections and cancellation.
36-4-20.4      Duration of locum tenens certificates--Privileges of certificate holder.
36-4-20.5      Repealed.
36-4-20.6      Resident license defined.


36-4-20.7      Issuance of resident license--Application--Fee.
36-4-20.8      Term of resident license.
36-4-20.9 to 36-4-20.11. Repealed.
36-4-20.12      Renewal of resident license.
36-4-20.13      Time for renewal.
36-4-21      Repealed.
36-4-22      Repealed.
36-4-22.1      Board access to premises where medicine practiced--Inspection of drug records and inventories--Refusal as misdemeanor--Confidentiality.
36-4-22.2      Report of facility suspending or revoking licensee's privilege to practice medicine therein--Immunity.
36-4-23      Advertising and printed material to show type of practice for which licensed--Violation as misdemeanor.
36-4-24      Repealed.
36-4-24.1      Renewal of license--Form--Fee.
36-4-24.2      Forfeiture of license for failure to renew--Renewal on application.
36-4-24.3      Practice without license, certificate, or permit and renewal prohibited--Violation as misdemeanor.
36-4-25      Immunity from liability for acts of members of professional committees or hospital officials.
36-4-26      Hospital and society liability not affected by immunity.
36-4-26.1      Proceedings of peer review committees confidential and privileged--Availability to physician subject of proceedings.
36-4-26.2      Patient records available to patient--Expert opinion as to care of patient--Restrictions on use of expert testimony.
36-4-27      Violation of chapter as misdemeanor.
36-4-28      Grounds for refusal of license, resident license, or certificate.
36-4-29      Grounds for cancellation, revocation, suspension or limitation of license, resident license, or certificate.
36-4-29.1      Summary suspension of license, resident license, or certificate--Hearing.
36-4-30      Acts considered unprofessional conduct--Criminal prosecution.
36-4-31      Proceedings for cancellation, revocation, or suspension of license, resident license, or certificate.
36-4-31.1 to 36-4-31.3. Omitted.
36-4-31.4      Reissuance of canceled, suspended, or revoked license, resident license, or certificate.
36-4-31.5      Evidence in cancellation, revocation, suspension, or limitation proceedings confidential.
36-4-31.6      Application of contested case procedure.
36-4-32      Suspension of license, resident license, or certificate for mental incompetence.
36-4-33      Appeal from acts, rulings or decisions of Board of Examiners.
36-4-34      Injunction to restrain practice for statutory violation, unprofessional conduct, or incompetence--Election of remedies.
36-4-35      Promulgation of rules by board.
36-4-36      Previously licensed physicians not affected.
36-4-37      Transfer of active patient records--Destruction--Notice.
36-4-38      Destruction of inactive patient records.
36-4-39      Practice of medicine or osteopathy by holder of permanent, unrestricted license.
36-4-40      Supervision and discipline of holder of permanent, unrestricted license to practice medicine or osteopathy.
36-4-41      Practice of medicine or osteopathy in South Dakota while located outside of state.
36-4-42      Peer review committee defined.
36-4-43      Peer review activities defined.
36-4-44      Interstate Medical Licensure Compact adopted .
36-4-45      Use of general funds to support Interstate Medical Licensure Compact prohibited.
36-4-46      Practice of certified professional midwife.


36-4-1 Board of examiners--Appointment and terms of members--Vacancies.
     36-4-1.   Board of examiners--Appointment and terms of members--Vacancies. The State Board of Medical and Osteopathic Examiners, hereinafter called the Board of Examiners, consists of nine members to be appointed by the Governor for terms of three years. No member may serve more than three consecutive full terms. However, appointment to an unexpired term is not considered a full term for this purpose. Each member shall hold office until a successor is appointed and qualified. Any vacancy on the board shall be filled by appointment by the Governor. The board shall at all times include six doctors of medicine and one doctor of osteopathy. The Governor may stagger terms to enable the board to have different terms expire each year.
     The terms of members begin on October thirty-first of the calendar year in which the Governor appoints the member, unless otherwise designated by the Governor. The appointee's term expires on October thirtieth in the third year of appointment.
     Any member's term ending June 30, 2013, or thereafter is extended to October thirtieth in the year the term is to expire.

Source: SL 1949, ch 106, § 1; SDC Supp 1960, § 27.0301; SL 1969, ch 105, § 1; revised pursuant to SL 1973, ch 2, § 58; SL 2005, ch 199, § 1; SL 2012, ch 16, § 15; SL 2013, ch 176, § 9.


36-4-2 Composition of board--Qualifications of members.
     36-4-2.   Composition of board--Qualifications of members. The Board of Examiners shall include six doctors of medicine holding a degree of M.D., and one doctor of osteopathy holding the degree of D.O. The members of the board shall be licensed in the State of South Dakota, and shall be skilled and capable physicians in good standing.

Source: SL 1949, ch 106, § 1; SDC Supp 1960, § 27.0301; SL 1969, ch 105, § 1; revised pursuant to SL 1973, ch 2, § 58; SL 2005, ch 199, § 2.


36-4-2.1 Lay members of board--Appointment and term of office.
     36-4-2.1.   Lay members of board--Appointment and term of office. The membership of the Board of Examiners shall include two lay members who are users of the services regulated by the board. One lay member may be a nonphysician health care professional licensed by the board. The Governor shall appoint the lay members. The lay members shall have the same term of office as other members of the board.

Source: SL 1973, ch 2, § 58; SL 2005, ch 199, § 3.


36-4-3 Officers of board--Executive secretary--Seal.
     36-4-3.   Officers of board--Executive secretary--Seal. The Board of Medical and Osteopathic Examiners shall annually elect one of its number as president, one of its number as vice-president, and one of its number as secretary. The board may hire an executive secretary who shall have such duties as are provided by resolution of the Board of Examiners. The board shall adopt an official seal, which shall contain the words "South Dakota State Board of Medical and Osteopathic Examiners."

Source: SL 1949, ch 106, § 1; SDC Supp 1960, § 27.0301; SL 1969, ch 105, § 1; SL 1985, ch 297, § 1.


36-4-4 Meetings of board.
     36-4-4.   Meetings of board. The Board of Examiners shall hold two regular meetings each year at a time to be fixed by the board, but special meetings at such other times as necessary may be held. All meetings shall be held at such place within the state as the board shall determine.

Source: SL 1949, ch 106, § 1; SDC Supp 1960, § 27.0301; SL 1969, ch 105, § 1.


36-4-4.1 Board continued within Department of Health--Records and reports.
     36-4-4.1.   Board continued within Department of Health--Records and reports. The Board of Medical and Osteopathic Examiners shall continue within the Department of Health, and shall retain all its prescribed functions, including administrative functions. The board shall submit such records, information and reports in the form and at such times as required by the secretary of health, except that the board shall report at least annually.

Source: SL 1973, ch 2, § 56 (1); SL 1985, ch 297, § 2; SL 2003, ch 272, § 38.


36-4-5 Compensation and expenses of board members--Fees held in special fund--Bond--Payments from...
     36-4-5.   Compensation and expenses of board members--Fees held in special fund--Bond--Payments from fund. Out of the funds coming into the possession of the Board of Examiners, the members thereof shall receive the compensation and reimbursement of expenses provided by law. All fees received by the board shall be held by the secretary, who shall give a bond in such sum, for the faithful performance of his duties, as the board may from time to time direct, as a special fund to be used for defraying the expenses of the board in carrying out the provisions of this chapter. Payment from said fund shall be made only upon written orders issued and signed by the president and secretary, or the board may, by resolution, authorize an executive secretary to do so, which authority if given shall be considered by the board in setting the sum of such executive secretary's bond.

Source: SL 1949, ch 106, § 1; SDC Supp 1960, § 27.0301; SL 1969, ch 105, § 1; SL 1973, ch 241, § 1.


36-4-6 Equipment, supplies, and services for board--Expenses restricted to revenue.
     36-4-6.   Equipment, supplies, and services for board--Expenses restricted to revenue. The Board of Examiners shall have the power to expend the necessary funds for its offices, furniture, fixtures, supplies, administrative and stenographic services. Administrative personnel having responsibility over funds of the Board of Examiners shall furnish a bond for the faithful performance of their duties in such sum as the board shall from time to time direct. No expenses shall be incurred by the board in excess of the revenue derived from such office.

Source: SL 1949, ch 106, § 1; SDC Supp 1960, § 27.0301; SL 1969, ch 105, § 1; SL 1973, ch 241, § 2.


36-4-7 Annual report to Governor.
     36-4-7.   Annual report to Governor. The Board of Examiners shall make an annual report to the Governor.

Source: SL 1949, ch 106, § 1; SDC Supp 1960, § 27.0301; SL 1969, ch 105, § 1; revised pursuant to SL 1971, ch 10.


36-4-8 Practice of medicine without a license, certificate, or permit as misdemeanor.
     36-4-8.   Practice of medicine without a license, certificate, or permit as misdemeanor. Any person who practices medicine, osteopathy, or any of the branches thereof without a license, certificate, or permit issued by the board is guilty of a Class 1 misdemeanor.

Source: SDC 1939, § 27.9904; SL 1949, ch 106, § 16; SDC Supp 1960, § 27.9943; SL 1977, ch 190, § 140; SL 1985, ch 297, § 3; SL 2009, ch 178, § 1.


36-4-8.1 Corporation prohibited from practice of medicine or osteopathy.
     36-4-8.1.   Corporation prohibited from practice of medicine or osteopathy. Except as provided in chapter 47-11, it is the public policy of this state that a corporation may not practice medicine or osteopathy. A corporation is not engaged in the practice of medicine or osteopathy and is not in violation of § 36-4-8 by entering into an employment agreement with a physician licensed pursuant to this chapter if the agreement or the relationship it creates does not:
             (1)      In any manner, directly or indirectly, supplant, diminish or regulate the physician's independent judgment concerning the practice of medicine or the diagnosis and treatment of any patient;
             (2)      Result in profit to the corporation from the practice of medicine itself, such as by the corporation charging a greater fee for the physician's services than that which he would otherwise reasonably charge as an independent practitioner, except that the corporation may make additional charges reasonably associated with the services rendered, such as facility, equipment or administrative charges; and
             (3)      Remain effective for a period of more than three years, after which it may be renewed by both parties annually.

Source: SL 1993, ch 271, § 1.


36-4-8.2 Surgery constituting practice of medicine.
     36-4-8.2.   Surgery constituting practice of medicine. Surgery constituting the practice of medicine includes the use of a laser or ionizing radiation for the purpose of cutting or otherwise altering human tissue for diagnostic, palliative, or therapeutic purposes.

Source: SL 1995, ch 209, § 1.


36-4-9 Use of title and other acts constituting practice of medicine.
     36-4-9.   Use of title and other acts constituting practice of medicine. For the purpose of this chapter, "practice of medicine or osteopathy" includes, but not by way of limitation, to append or prefix the letters M.D., or D.O. or the title of Doctor or Dr. or Specialist or Osteopath or any other sign or appellation in a medical sense to one's name or to profess publicly to be a physician or surgeon or to recommend, prescribe or direct for the use of any person any drug, medicine, apparatus, or other agency for the cure, relief or palliation of any ailment or disease of the mind or body or the cure or relief of any wound, fracture or bodily injury or deformity.

Source: SDC 1939, § 27.0310; SL 1949, ch 106, § 14; SDC Supp 1960, § 27.0315; SL 1985, ch 297, § 4.


36-4-10 Practitioners and officers exempt from chapter--Application to previously licensed physici...
     36-4-10.   Practitioners and officers exempt from chapter--Application to previously licensed physicians. The provisions of this chapter do not apply to commissioned physicians or surgeons of the United States Army, Navy, Air Force, or Marine Hospital Service or of the United States Veterans' Administration, or the United States Public Health Service in the actual performance of their duties nor to dentists in the legitimate practice of their profession, nor to Christian Scientists as such who do not practice medicine, surgery, or obstetrics by the use of any material, remedies, or agencies. Medical and osteopathic physicians, legally licensed in this state on July 1, 1949, need not pass the examination referred to in this chapter. However, osteopathic physicians licensed prior to July 1, 1949, may not perform major operations.

Source: SDC 1939, § 27.0311; SL 1949, ch 106, § 3; SDC Supp 1960, § 27.0303; SL 1985, ch 297, § 5.


36-4-11 Application for license--Qualifications of licensee--Examination--Educational requirements...
     36-4-11.   Application for license--Qualifications of licensee--Examination--Educational requirements. Any person desiring to engage in the practice of medicine or osteopathy, surgery, or obstetrics in any of their branches in this state shall apply to the Board of Medical and Osteopathic Examiners for a license. The application shall contain such information as the board may require by rules adopted pursuant to chapter 1-26. The Board of Examiners shall grant a license to any applicant who gives satisfactory proof of being at least eighteen years of age and who is of good moral character if the applicant passes an examination, determined by the board by rule adopted pursuant to chapter 1-26, to establish medical competence and presents evidence of having graduated and received a diploma from a medical or osteopathic college approved by the board in accordance with rules adopted pursuant to chapter 1-26. If the diploma is from a medical or osteopathic college outside the United States, the Board of Examiners may require further proof of competence by rules adopted pursuant to chapter 1-26. The applicant shall also present evidence satisfactory to the board of successful completion of a program as an intern or resident, or of equivalent service approved by the board, in a hospital approved by the board, for such time as the board requires by rule adopted pursuant to chapter 1-26.

Source: SDC 1939, § 27.0301; SL 1949, ch 106, § 2; SDC Supp 1960, § 27.0302; SL 1973, ch 241, § 3; SL 1979, ch 249, § 1; SL 1985, ch 297, § 6; SL 1995, ch 210, § 1.


36-4-11.1 Criminal background investigation of applicants for licensure and licensees under discipli...
     36-4-11.1.   Criminal background investigation of applicants for licensure and licensees under disciplinary investigation--Fees. Each applicant for licensure as a physician in this state shall submit to a state and federal criminal background investigation by means of fingerprint checks by the Division of Criminal Investigation and the Federal Bureau of Investigation. Upon application, the Board of Medical and Osteopathic Examiners shall submit completed fingerprint cards to the Division of Criminal Investigation. Upon completion of the criminal background check, the Division of Criminal Investigation shall forward to the board all information obtained as a result of the criminal background check. This information shall be obtained prior to permanent licensure of the applicant. The Board of Medical and Osteopathic Examiners may require a state and federal criminal background check for any licensee who is the subject of a disciplinary investigation by the board. Failure to submit or cooperate with the criminal background investigation is grounds for denial of an application or may result in revocation of a license. The applicant shall pay for any fees charged for the cost of fingerprinting or the criminal background investigation.

Source: SL 2012, ch 193, § 1.


36-4-12
     36-4-12.   Repealed by SL 1985, ch 297, § 7.


36-4-12.1 Application of medical or osteopathic college for approval--Inspection.
     36-4-12.1.   Application of medical or osteopathic college for approval--Inspection. A medical or osteopathic college seeking approval by the Board of Medical and Osteopathic Examiners shall file with the board an application on forms provided by the board. It shall also provide such other or further information as the board requests in writing.
     Prior to issuing any approval the board may require, in its sole discretion, that such school be inspected by a member or representative of the board. The school applying for approval shall pay all expenses incurred by the board in making such an inspection.

Source: SL 1985, ch 297, § 8.


36-4-12.2 List of approved colleges.
     36-4-12.2.   List of approved colleges. The Board of Medical and Osteopathic Examiners shall keep a written list of all medical and osteopathic colleges which are approved by the board.

Source: SL 1985, ch 297, § 9.


36-4-12.3 Hearing on refusal to approve college.
     36-4-12.3.   Hearing on refusal to approve college. If a medical or osteopathic college applies to the Board of Medical and Osteopathic Examiners for approval and complies with all prerequisites, including a proper application, furnishing all information requested in writing, and provisions of the board relative to an on-site inspection, and the board determines not to grant such approval, such college shall be provided an opportunity for hearing pursuant to the provisions of chapter 1-26.

Source: SL 1985, ch 297, § 10.


36-4-12.4 Information furnished by approved colleges.
     36-4-12.4.   Information furnished by approved colleges. The Board of Medical and Osteopathic Examiners shall review its written list of approved medical and osteopathic colleges on or before the first day of July each year. The board may require any college on its approved list to submit, in writing, additional information requested by the board.

Source: SL 1985, ch 297, § 11.


36-4-12.5 Hearing on refusal to renew approval of college.
     36-4-12.5.   Hearing on refusal to renew approval of college. If a medical or osteopathic college has complied with all prerequisites for a renewal of its approval and the Board of Medical and Osteopathic Examiners decides not to renew the approval of such college, the board shall provide such college with an opportunity for hearing pursuant to the provisions of chapter 1-26.

Source: SL 1985, ch 297, § 12.


36-4-13 Hospitals recognized for internship--Inspection by board.
     36-4-13.   Hospitals recognized for internship--Inspection by board. "Hospital approved by the board" means a hospital approved by the Board of Examiners pursuant to § 36-4-22.1, but a hospital shall not be denied approval without a hearing by the board in compliance with chapter 1-26, and the board may for the purpose of such hearing inspect said hospital; provided such hearing and inspection shall be held within ninety days after a request therefor.

Source: SL 1949, ch 106, § 2; SDC Supp 1960, § 27.0302; SL 1973, ch 241, § 5.


36-4-14
     36-4-14.   Repealed by SL 1973, ch 241, § 15.


36-4-15 False or fraudulent diploma or affidavit as misdemeanor.
     36-4-15.   False or fraudulent diploma or affidavit as misdemeanor. Any person who submits to the Board of Examiners any false, forged, or fraudulent diploma or one of which he is not the lawful owner, or any false or forged affidavit of identification for the purpose of obtaining from such board any license required by this chapter is guilty of a Class 1 misdemeanor.

Source: SDC 1939, § 27.9904; SL 1949, ch 106, § 16; SDC Supp 1960, § 27.9943; SL 1977, ch 190, § 141.


36-4-16 Return of fee on withdrawal of application or failure to examine.
     36-4-16.   Return of fee on withdrawal of application or failure to examine. The Board of Examiners shall be authorized to return the examination fee in any case where the applicant has withdrawn his application prior to the date fixed for the examination, or where the board for any reason fails to examine an applicant through no fault on his part, but this section shall not apply where a license has been revoked.

Source: SDC 1939, § 27.0312; SL 1949, ch 106, § 15; SDC Supp 1960, § 27.0316.


36-4-17 Written examination required--Discrimination between systems of medicine prohibited--Minim...
     36-4-17.   Written examination required--Discrimination between systems of medicine prohibited--Minimum grade--Reexamination--Fee--Preservation of grades. The examination required by this chapter shall be in writing. The questions on all subjects shall be such as are answered alike by all schools of medicine or osteopathy. No license may be refused any applicant because of adherence to any particular school of medicine. Each applicant shall be required to attain an average percentage of at least seventy-five percent of correct answers. Any applicant failing on such examination is eligible for a maximum of two subsequent examinations upon payment of the required fee at any regular meeting of the Board of Medical and Osteopathic Examiners or at such time and place as the board may designate. Before taking the examination, the applicant shall pay to the secretary of the board a fee to be set by the board in an amount not to exceed five hundred fifty dollars. The applicant must pass all parts or steps of the examination within seven years. However, if the applicant is board-certified by a board of the American Board of Medical Specialties, the Board of Medical and Osteopathic Examiners may waive this requirement. All grades achieved shall be preserved by the secretary of the board for a period of at least three years.

Source: SDC 1939, § 27.0302; SL 1949, ch 106, § 5; SDC Supp 1960, § 27.0305; SL 1961, ch 128; SL 1973, ch 241, § 7; SL 1979, ch 249, § 2; SL 1982, ch 272; SL 1985, ch 297, § 13; SL 2004, ch 241, § 1.


36-4-17.1 Examination of applicant with dual MD-PhD degree.
     36-4-17.1.   Examination of applicant with dual MD-PhD degree. If the applicant has successfully completed a dual degree MD-PhD program in an institution approved by the board, all of the requirements of § 36-4-17 apply. However, the applicant shall pass all parts or steps of the examination within ten years.

Source: SL 2009, ch 180, § 1.


36-4-18 Grant of license to practice--Type of practice stated on license.
     36-4-18.   Grant of license to practice--Type of practice stated on license. To each applicant successfully passing the examination required by this chapter and fulfilling all other requirements of this chapter, the Board of Examiners shall grant a license to practice medicine or osteopathic medicine, surgery, and obstetrics in all of their branches, without limitations, in this state, but each license so granted shall state on the face thereof whether the licensee is licensed to practice medicine and surgery or osteopathic medicine and surgery. Such license shall be granted only by consent of the majority of the board.

Source: SDC 1939, § 27.0303; SL 1949, ch 106, § 6; SDC Supp 1960, § 27.0306.


36-4-19 License based on certificate from national board or another state--Fee.
     36-4-19.   License based on certificate from national board or another state--Fee. The Board of Medical and Osteopathic Examiners may, without examination, issue a license to any applicant holding a currently valid license or certificate issued to the applicant by the examining board of the District of Columbia, any state or territory of the United States, the National Board of Medical Examiners, the National Board of Osteopathic Physicians and Surgeons, or any province of Canada, if the legal requirements of the examining board at the time it issued the license or certificate were not less than those of this state at the time the license is presented for registration.
     However, the board may require the applicant to successfully pass either an oral or written examination and personally appear before the board, a member of the board, or its staff.
     Each applicant applying under the provisions of this chapter shall pay to the secretary of the board a license fee not to exceed two hundred dollars to be set by the board by rule promulgated pursuant to chapter 1-26.

Source: SDC 1939, § 27.0304; SL 1949, ch 106, § 7; SDC Supp 1960, § 27.0307; SL 1961, ch 129; SL 1969, ch 105, § 2; SL 1973, ch 241, § 8; SL 1985, ch 297, § 14; SL 1995, ch 210, § 2; SL 2002, ch 175, § 1; SL 2008, ch 191, § 1.


36-4-19.1 Contents of application for license based on certificate from national board or another ju...
     36-4-19.1.   Contents of application for license based on certificate from national board or another jurisdiction--Consideration by board. Applicants for license under the provisions of § 36-4-19 shall subscribe to an oath in writing before an officer authorized by law to administer oaths, which shall be a part of such application, and the oath shall be made on statements in the application which shall state the following:
             (1)      That the license, certificate, or authority under which the applicant practiced medicine in the state, territory or province of Canada from which the applicant removed was at the time of such removal in full force and not canceled, suspended or revoked.
             (2)      That the applicant is the identical person to whom the said certificate, license or commission and the said medical diploma was issued.
             (3)      Whether proceedings have ever been instituted against the applicant for a cancellation, suspension or revocation of said certificate, license or authority to practice medicine in any state, territory or province of Canada.
             (4)      Whether the applicant has ever applied for and been refused a certificate, license, authority or commission to practice medicine by any state, territory or province of Canada and if so the reason for said refusal.
             (5)      That no prosecution is pending against the applicant in any state or federal court or court in Canada for any offense which under the law of the state of South Dakota would constitute a felony or would be a crime involving moral turpitude.
     The application shall also be accompanied by such other information as the board by its rules and regulations require.
     In determining whether a South Dakota license should be issued to the applicant, the board shall take into consideration the nature, circumstances or results of any action for cancellation, suspension, revocation or refusal of the license.

Source: SDC Supp 1960, § 27.0307 as enacted by SL 1969, ch 105, § 2; SL 1973, ch 241, § 9.


36-4-20 Temporary permits for supervised practice in state institution--Qualifications of applican...
     36-4-20.   Temporary permits for supervised practice in state institution--Qualifications of applicants--Duration and renewal. If it appears to the State Board of Medical and Osteopathic Examiners by a resolution thereof duly made and adopted, that an urgent need exists in any state-owned and operated medical institution for the services of a practitioner of medicine, surgery, and obstetrics and their branches, as a state employee, which cannot be adequately and effectively served by a regularly licensed practitioner, the board may, in its discretion, grant a temporary permit to an applicant who has satisfactorily passed a special examination and paid a fee not to exceed fifty dollars for the examination, notwithstanding that the applicant has not completed the period of internship or residence training in a hospital approved by the board and has failed or has been unable to satisfactorily show that he is a graduate of an approved medical or osteopathic college. The temporary permit shall be issued and be effective for one year from the date of issuance of such permit. The temporary permit entitles the person to whom issued to engage in the practice of medicine, surgery, and obstetrics and their branches as a state employee under the supervision of a licensed physician in such state-owned and operated medical institution and not elsewhere. Such temporary permit may be renewed by the board upon application to it on an annual basis and the payment of an annual renewal fee of not to exceed fifteen dollars. Except as may otherwise be provided in this section, applications for such temporary permits shall be processed in the same manner as regular license applications under § 36-4-11, and the holder of any such permit is subject to all restrictions, responsibilities, and privileges inuring to regular licensees under this chapter. The examination and renewal fees provided for in this section shall be set by the board by rules promulgated pursuant to chapter 1-26.

Source: SL 1949, ch 110; SL 1955, ch 90; SDC Supp 1960, § 27.0308; SL 1963, ch 150; SL 1973, ch 241, § 10; SL 1986, ch 27, § 40; SL 2008, ch 191, § 2.


36-4-20.1 Locum tenens certificate defined.
     36-4-20.1.   Locum tenens certificate defined. A locum tenens certificate is a certificate allowing the holder thereof to practice medicine in this state for a limited period of time and subject to the requirements and conditions set forth in said certificate.

Source: SDC Supp 1960, § 27.0308A as enacted by SL 1969, ch 105, § 7.


36-4-20.2 Petition and application for locum tenens certificate--Fee--Personal appearance required.
     36-4-20.2.   Petition and application for locum tenens certificate--Fee--Personal appearance required. A certificate for locum tenens practice may be issued by the Board of Examiners to an applicant who is a current holder of a valid license to practice medicine or osteopathy in any state or territory of the United States, the District of Columbia, or province of Canada, or who has graduated and received a diploma from an approved medical or osteopathic college and who has completed at least one year of an approved internship or residency program or its equivalent. If such applicant is not the holder of a currently valid license to practice medicine or osteopathy, as heretofore stated, the board may grant such certificate only after the applicant has satisfactorily passed a special examination for locum tenens certificate administered by the board. To obtain a locum tenens certificate, a petition shall be presented to the board signed under oath, by a licensed physician practicing in this state and by the applicant requesting a locum tenens certificate which petition shall set forth the reasons why the applicant should be issued a locum tenens certificate. In addition to the petition, the locum tenens applicant shall complete and submit to the board the application required by § 36-4-19 accompanied by a fee of not to exceed fifty dollars made payable to the secretary of the board and appear personally at the office of the South Dakota State Board of Medical and Osteopathic Examiners or at the office of a member of the board. The application fee provided for in this section shall be set by the board by rule promulgated pursuant to chapter 1-26.

Source: SDC Supp 1960, § 27.0308A as enacted by SL 1969, ch 105, § 7; SL 1973, ch 241, § 11; SL 2008, ch 191, § 3.


36-4-20.3 Issuance of locum tenens certificate by single member of board--Notice to other members--O...
     36-4-20.3.   Issuance of locum tenens certificate by single member of board--Notice to other members--Objections and cancellation. A member of the Board of Examiners, when satisfied that all requirements have been met and that the circumstances require the issuance, may issue a locum tenens certificate to the applicant, provided however, all other members of the board shall be notified by mail within three days of the issuance of any such certificate and any member of the board may within five days after receiving notice of the issuance of such certificate file written objections with the president of the board; the president shall within twenty-four hours after the receipt of any such objection mail copies thereof to all members of the board for their consideration and if within three days after the mailing of such copies a majority of the board file objections to the issuance thereof in writing with the president, such certificate shall be deemed canceled.

Source: SDC Supp 1960, § 27.0308A as enacted by SL 1969, ch 105, § 7; SL 1973, ch 241, § 12.


36-4-20.4 Duration of locum tenens certificates--Privileges of certificate holder.
     36-4-20.4.   Duration of locum tenens certificates--Privileges of certificate holder. Locum tenens certificates shall be issued for a period of not to exceed sixty days, and in the Board of Examiners discretion may set forth requirements and conditions governing the practice under it. The locum tenens certificate shall allow the holder to practice medicine in this state only for a period set forth in the certificate and according to any conditions and requirements which the board in its discretion incorporates onto the certificate.

Source: SDC Supp 1960, § 27.0308A as enacted by SL 1969, ch 105, § 7.


36-4-20.5
     36-4-20.5.   Repealed by SL 1986, ch 27, § 41.


36-4-20.6 Resident license defined.
     36-4-20.6.   Resident license defined. A resident license is a license allowing the holder to practice medicine in this state for a limited period of time subject to the requirements and conditions set forth in the license.

Source: SL 1987, ch 266, § 1; SL 2013, ch 172, § 1.


36-4-20.7 Issuance of resident license--Application--Fee.
     36-4-20.7.   Issuance of resident license--Application--Fee. The Board of Examiners may issue a resident license to an applicant who is currently enrolled in an accredited residency program. The applicant shall apply using forms prescribed by the board. The application shall be accompanied by an application fee set by the board, by rule promulgated pursuant to chapter 1-26, not to exceed fifty dollars.

Source: SL 1987, ch 266, § 2; SL 2008, ch 191, § 4; SL 2013, ch 172, § 2.


36-4-20.8 Term of resident license.
     36-4-20.8.   Term of resident license. Any resident license is valid for a period not exceeding one year from the issue date. The resident license holder shall continue in good standing in an accredited residency program or the resident license is forfeit. No holder of a resident license may engage in providing medical services outside the established residency program until the holder has successfully completed one year of residency training.

Source: SL 1987, ch 266, § 3; SL 2013, ch 172, § 3.


36-4-20.9
     36-4-20.9 to 36-4-20.11.   Repealed by SL 2013, ch 172, §§ 4 to 6.


36-4-20.12 Renewal of resident license.
     36-4-20.12.   Renewal of resident license. Each person receiving a resident license under the provisions of this chapter shall apply, on a form prescribed by the board, for a renewal of the resident license.

Source: SL 2009, ch 178, § 5; SL 2013, ch 172, § 7.


36-4-20.13 Time for renewal.
     36-4-20.13.   Time for renewal. Failure of a person to renew the resident license on or before June thirtieth of each year constitutes a forfeiture of the resident license held by the person. However, the resident license may be renewed at the discretion of the Board of Examiners upon making application on a form prescribed by the board.

Source: SL 2009, ch 178, § 6; SL 2013, ch 172, § 8.


36-4-21
     36-4-21.   Repealed by SL 1977, ch 190, § 142.


36-4-22
     36-4-22.   Repealed by SL 1981, ch 273.


36-4-22.1 Board access to premises where medicine practiced--Inspection of drug records and inventor...
     36-4-22.1.   Board access to premises where medicine practiced--Inspection of drug records and inventories--Refusal as misdemeanor--Confidentiality. The Board of Examiners, or any of its officers, agents or employees so authorized, may enter and inspect, during business hours, any place where medicine or osteopathy are practiced for the purpose of enforcing this chapter and rules adopted pursuant hereto. The refusal to allow an inspection is a Class 1 misdemeanor. Such inspection may include any medical or drug records, and the copying thereof, and inventories relating to drugs and controlled substances required to be kept under the provisions of chapter 34-20B. The Board of Examiners, its officers, agents and employees shall maintain the confidential nature of any records obtained pursuant to this section.

Source: SL 1973, ch 241, § 6; SL 1989, ch 319; SL 1992, ch 158, § 70.


36-4-22.2 Report of facility suspending or revoking licensee's privilege to practice medicine therei...
     36-4-22.2.   Report of facility suspending or revoking licensee's privilege to practice medicine therein--Immunity. Every facility licensed by the state where medicine is practiced which suspends or revokes the privilege of a licensee of the Board of Medical and Osteopathic Examiners to practice medicine therein for incompetence or unprofessional conduct as defined in this chapter shall report it in writing to the board including the factual basis of such revocation or suspension. Any report made to the board pursuant to this section shall be confidential and subject to the same restrictions set forth in § 36-4-31.5 as evidence taken by the board on cancellation, revocation, suspension or limitation proceedings. A licensed facility, complying in good faith with this section, may not be held liable for any injury or damage proximately resulting from such compliance.

Source: SL 1985, ch 297, § 15.


36-4-23 Advertising and printed material to show type of practice for which licensed--Violation as...
     36-4-23.   Advertising and printed material to show type of practice for which licensed--Violation as misdemeanor. No person practicing any of the healing arts shall use the title "doctor" or any contraction thereof, in connection with his business or profession, or any written or printed material, or in connection with any advertising, unless he add after his name the recognized abbreviation or specification of the branch of the healing art in which he is licensed to practice and is engaged. A violation of this section is a Class 1 misdemeanor.

Source: SL 1949, ch 106, § 13; SDC Supp 1960, § 27.0314; SL 1992, ch 158, § 71.


36-4-24
     36-4-24.   Repealed by omission from SL 1969, ch 105, § 5.


36-4-24.1 Renewal of license--Form--Fee.
     36-4-24.1.   Renewal of license--Form--Fee. Each person receiving a license under the provisions of this chapter shall apply, on a form approved by the Board of Medical and Osteopathic Examiners, for a renewal of the license. The renewal shall be issued by the secretary upon payment of an annual fee set by the board, by rule promulgated pursuant to chapter 1-26, not exceeding the sum of two hundred dollars. The renewal shall be in the form of a receipt acknowledging payment of the required fee and signed by the secretary of the board.

Source: SL 1953, ch 119; SDC Supp 1960, § 27.0312; SL 1964, ch 84; SDCL § 36-4-24; SDC Supp 1960, § 27.0312A as enacted by SL 1969, ch 105, § 8; SL 1973, ch 241, § 13; SL 1977, ch 290; SL 1985, ch 297, § 16; SL 1999, ch 190, § 1; SL 2001, ch 199, § 1; SL 2004, ch 242, § 1; SL 2008, ch 191, § 5.


36-4-24.2 Forfeiture of license for failure to renew--Renewal on application.
     36-4-24.2.   Forfeiture of license for failure to renew--Renewal on application. Failure of a person to renew his license on or before March first of each year shall constitute a forfeiture of the license held by such person. However, such license may be renewed at the discretion of the Board of Medical and Osteopathic Examiners upon the payment of the fee provided in § 36-4-19 for the issuance of licenses by reciprocity and upon making the application provided in § 36-4-19.1 required for reciprocity.

Source: SDC Supp 1960, § 27.0312A as enacted by SL 1969, ch 105, § 8; SL 1973, ch 241, § 14; SL 1985, ch 297, § 17; SL 1987, ch 29, § 22.


36-4-24.3 Practice without license, certificate, or permit and renewal prohibited--Violation as misd...
     36-4-24.3.   Practice without license, certificate, or permit and renewal prohibited--Violation as misdemeanor. No person required to be licensed, certificated, or permitted under the provisions of this chapter shall practice the person's profession in the State of South Dakota without such active license, certificate, or permit and renewal pursuant to the provisions of this chapter except those specifically excepted from the provisions of this chapter. A violation of this section is a Class 1 misdemeanor.

Source: SDC Supp 1960, § 27.0312A as enacted by SL 1969, ch 105, § 8; SL 1992, ch 158, § 72; SL 2009, ch 178, § 7.


36-4-25 Immunity from liability for acts of members of professional committees or hospital officia...
     36-4-25.   Immunity from liability for acts of members of professional committees or hospital officials. There is no monetary liability on the part of, and no cause of action for damages may arise against, any member of a duly appointed peer review committee engaging in peer review activity comprised of physicians licensed to practice medicine or osteopathy under this chapter, or against any duly appointed consultant to a peer review committee or to the medical staff or the governing board of a licensed health care facility for any act or proceeding undertaken or performed within the scope of the functions of the committee, if the committee member or consultant acts without malice, has made a reasonable effort to obtain the facts of the matter under consideration, and acts in reasonable belief that the action taken is warranted by those facts. The provisions of this section do not affect the official immunity of an officer or employee of a public corporation.

Source: SL 1966, ch 151; SL 1975, ch 231; SL 1985, ch 297, § 22; SL 1998, ch 172, § 3.


36-4-26 Hospital and society liability not affected by immunity.
     36-4-26.   Hospital and society liability not affected by immunity. Section 36-4-25 shall not be construed to confer immunity from liability on any professional society or hospital. In any case in which, but for the enactment of § 36-4-25, a cause of action would arise against a hospital or professional society, such cause of action shall exist as if said section had not been enacted.

Source: SL 1966, ch 151.


36-4-26.1 Proceedings of peer review committees confidential and privileged--Availability to physici...
     36-4-26.1.   Proceedings of peer review committees confidential and privileged--Availability to physician subject of proceedings. The proceedings, records, reports, statements, minutes, or any other data whatsoever, of any committee described in § 36-4-42, relating to peer review activities defined in § 36-4-43, are not subject to discovery or disclosure under chapter 15-6 or any other provision of law, and are not admissible as evidence in any action of any kind in any court or arbitration forum, except as hereinafter provided. No person in attendance at any meeting of any committee described in § 36-4-42 is required to testify as to what transpired at such meeting. The prohibition relating to discovery of evidence does not apply to deny a physician access to or use of information upon which a decision regarding the person's staff privileges or employment was based. The prohibition relating to discovery of evidence does not apply to deny any person or the person's counsel in the defense of an action against that person access to the materials covered under this section.

Source: SL 1977, ch 291; SL 1998, ch 172, § 4; SL 2002, ch 176, § 1.


36-4-26.2 Patient records available to patient--Expert opinion as to care of patient--Restrictions o...
     36-4-26.2.   Patient records available to patient--Expert opinion as to care of patient--Restrictions on use of expert testimony. Section 36-4-26.1 does not apply to observations made at the time of treatment by a health care professional present during the patient's treatment or to patient records prepared during the treatment and care rendered to a patient who is personally or by personal representative a party to an action or proceeding, the subject matter of which is the care and treatment of the patient. Furthermore, no member of any committee, department, section, board of directors, or group covered by § 36-4-26.1, who has participated in deliberations under that section involving the subject matter of the action, may testify as an expert witness for any party in any action for personal injury or wrongful death, the subject matter of which is the care and treatment of the patient. Notwithstanding membership on a committee, department, section, board of directors, or group covered by § 36-4-26.1, a health care professional observing or participating in the patient's treatment and care may testify as a fact or expert witness concerning that treatment and care, but may not be required to testify as to anything protected by § 36-4-26.1.

Source: SL 1977, ch 291; SL 1998, ch 223, § 1; SL 1999, ch 191, § 1.


36-4-27 Violation of chapter as misdemeanor.
     36-4-27.   Violation of chapter as misdemeanor. Any person who falsely personates anyone licensed pursuant to this chapter is guilty of a Class 1 misdemeanor.

Source: SL 1949, ch 106, § 16; SDC Supp 1960, § 27.9943; SL 1977, ch 190, § 144; SL 1992, ch 158, § 73.


36-4-28 Grounds for refusal of license, resident license, or certificate.
     36-4-28.   Grounds for refusal of license, resident license, or certificate. The Board of Examiners may, in compliance with chapter 1-26, refuse to grant a license, resident license, or certificate under this chapter because of unprofessional, immoral, or dishonorable conduct on the part of the applicant.

Source: SDC 1939, § 27.0305; SL 1949, ch 106, § 8; SDC Supp 1960, § 27.0309; SL 2009, ch 178, § 8; SL 2013, ch 172, § 9.


36-4-29 Grounds for cancellation, revocation, suspension or limitation of license, resident licens...
     36-4-29.   Grounds for cancellation, revocation, suspension or limitation of license, resident license, or certificate. The Board of Examiners may cancel, revoke, suspend, or limit the license, resident license, or certificate of any physician or surgeon issued under this chapter upon satisfactory proof by a preponderance of the evidence in compliance with chapter 1-26 of such a licensee's, resident licensee's, or certificate holder's professional incompetence, or unprofessional or dishonorable conduct, or proof of a violation of this chapter in any respect. However, the board may not base a finding of unprofessional or dishonorable conduct solely on the basis that a licensee, resident licensee, or certificate holder practices chelation therapy.
     For the purposes of this section, professional incompetence is a deviation from the statewide standard of competence, which is that minimum degree of skill and knowledge necessary for the performance of characteristic tasks of a physician or surgeon in at least a reasonably effective way.

Source: SDC 1939, § 27.0306; SL 1949, ch 106, § 9; SL 1957, ch 116; SDC Supp 1960, § 27.0310; SL 1969, ch 105, § 3; SL 1985, ch 297, § 18; SL 1992, ch 265, § 3; SL 1993, ch 272; SL 2004, ch 243, § 1; SL 2009, ch 178, § 9; SL 2013, ch 172, § 10.


36-4-29.1 Summary suspension of license, resident license, or certificate--Hearing.
     36-4-29.1.   Summary suspension of license, resident license, or certificate--Hearing. If the Board of Examiners finds that public health, safety, or welfare imperatively require emergency action, and incorporates a finding to that effect in its order, or has information filed with the board that a holder of a license, resident license, or certificate improperly obtained a license, resident license, or certificate from the board, summary suspension of a license, resident license, or certificate may be ordered pending final action by the Board of Examiners. The Board of Examiners shall convene a hearing which shall be promptly instituted and determined and take action as provided in § 36-4-29.

Source: SL 1983, ch 267; SL 1985, ch 297, § 19; SL 2009, ch 178, § 10; SL 2013, ch 172, § 11.


36-4-30 Acts considered unprofessional conduct--Criminal prosecution.
     36-4-30.   Acts considered unprofessional conduct--Criminal prosecution. The term, unprofessional or dishonorable conduct, as used in this chapter includes:
             (1)      Producing or aiding or abetting a criminal abortion;
             (2)      Employing what is known as cappers or steerers;
             (3)      Obtaining any fee on the assurance that a manifestly incurable disease can be permanently cured;
             (4)      Willfully betraying a professional confidence;
             (5)      All advertising of medical business in which untruthful or improbable statements are made or which are calculated to mislead or deceive the public;
             (6)      Conviction of any criminal offense of the grade of felony, any conviction of a criminal offense arising out of the practice of medicine or osteopathy, or one in connection with any criminal offense involving moral turpitude;
             (7)      Habits of intemperance or drug addiction, calculated in the opinion of the Board of Medical and Osteopathic Examiners to affect the licensee's practice of the profession;
             (8)      Refusal or neglect to report the existence of a diseased or unsanitary condition to the proper health authorities, as prescribed by the regulations of the board;
             (9)      Prescribing intoxicants, narcotics, barbiturates, or other habit-forming drugs to any person in quantities and under circumstances making it apparent to the board that the prescription was not made for legitimate medicinal purposes or prescribing in a manner or in amounts calculated in the opinion of the board to endanger the well-being of an individual patient or the public in general;
             (10)      Splitting fees or giving to any person furnishing a patient any portion of the fees received from the patient or paying or giving to any person consideration of any kind for furnishing a patient;
             (11)      Failure to disclose one's school of practice or one's professional academic degree when using a professional title or designation;
             (12)      Sustaining any physical or mental disability which renders the further practice of a licensee's profession dangerous;
             (13)      Failure to comply with state or federal laws on keeping records regarding possessing and dispensing of narcotics, barbiturates, and habit-forming drugs;
             (14)      Falsifying the medical records of a patient or any official record regarding possession and dispensing of narcotics, barbiturates, and habit-forming drugs or regarding any phase of medical treatment of a patient;
             (15)      Presenting to the board any license, certificate, or diploma which was obtained by fraud or deception practiced in passing a required examination or which was obtained by the giving of false statements or information on applying for the license;
             (16)      Illegally, fraudulently, or wrongfully obtaining a license required by this chapter by the use of any means, devices, deceptions, or helps in passing any examination or by making false statements or misrepresentations in any applications or information presented;
             (17)      Conviction of violating § 34-23A-10.1;
             (18)      Performing medical services which have been declared, by declaratory ruling of the board, to be of no medical value;
             (19)      The exercise of influence within the physician-patient relationship for the purposes of engaging a patient in sexual activity. For the purposes of this subdivision, the patient is presumed incapable of giving free, full, and informed consent to sexual activity with the physician;
             (20)      Engaging in gross or immoral sexual harassment or sexual contact;
             (21)      Consistently providing or prescribing medical services or treatments which are inappropriate or unnecessary;
             (22)      Any practice or conduct which tends to constitute a danger to the health, welfare, or safety of the public or patients or engaging in conduct which is unbecoming a person licensed to practice medicine;
             (23)      Failure to fulfill a valid obligation to a federal or state student loan or scholarship program for medical school education designed to provide medical services to underserved geographical areas; and
             (24)      Discipline by another state, territorial, or provincial licensing board or the licensing board of the District of Columbia.
     No person may be criminally prosecuted for conduct described in this section unless such conduct is otherwise unlawful.

Source: SDC 1939, § 27.0307; SL 1949, ch 106, § 10; SL 1957, ch 116; SDC Supp 1960, § 27.0311; SL 1969, ch 105, § 4; SL 1980, ch 245, § 3; SL 1985, ch 297, § 20; SL 1989, ch 320; SL 1992, ch 264, § 1; SL 1995, ch 211.


36-4-31 Proceedings for cancellation, revocation, or suspension of license, resident license, or c...
     36-4-31.   Proceedings for cancellation, revocation, or suspension of license, resident license, or certificate. The proceedings for cancellation, revocation, or suspension of a license, resident license, or certificate shall be conducted in compliance with chapter 1-26. However, the Board of Examiners may dispense with the requirement of prior notice and an informal meeting set forth in § 1-26-29 if the board finds that the public health, interest, or safety require otherwise or that willful acts have been alleged.

Source: SDC 1939, § 27.0306; SL 1949, ch 106, § 9; SL 1957, ch 116; SDC Supp 1960, § 27.0310; SL 1969, ch 105, § 3; revised pursuant to SL 1972, ch 15, § 4; SL 1989, ch 321; SL 2009, ch 178, § 11; SL 2013, ch 172, § 12.


36-4-31.1
     36-4-31.1 to 36-4-31.3.   Omitted.


36-4-31.4 Reissuance of canceled, suspended, or revoked license, resident license, or certificate.
     36-4-31.4.   Reissuance of canceled, suspended, or revoked license, resident license, or certificate. Upon application, the Board of Examiners may reissue a license, resident license, or certificate to practice to any person whose license, resident license, or certificate has been canceled, suspended, or revoked. No reissuance of a license, resident license, or certificate which has been canceled or revoked may be made prior to one year after the cancellation or revocation. The reissuance of any license, resident license, or certificate may be made in such manner and form and under conditions as the board may require.

Source: SDC Supp 1960, § 27.0310 as enacted by SL 1969, ch 105, § 3; SL 2009, ch 178, § 12; SL 2013, ch 172, § 13.


36-4-31.5 Evidence in cancellation, revocation, suspension, or limitation proceedings confidential.
     36-4-31.5.   Evidence in cancellation, revocation, suspension, or limitation proceedings confidential. Testimony of a witness or documentary evidence of any kind on cancellation, revocation, suspension, or limitation proceedings are not subject to discovery or disclosure under chapter 15-6 or any other provision of law, and are not admissible as evidence in any action of any kind in any court or arbitration forum, except as hereinafter provided. No person in attendance at any hearing of the Board of Examiners considering cancellation, revocation, suspension, or limitation of a license, resident license, or certificate issued by it may be required to testify as to what transpired at such meeting. The prohibition relating to discovery of evidence does not apply to deny a physician access to or use of information upon which a decision regarding the physician's staff privileges was based. The prohibition relating to discovery of evidence does not apply to any person or the person's counsel in the defense of an action against the person's access to the materials covered under this section.

Source: SL 1985, ch 297, § 21; SL 2009, ch 178, § 13; SL 2013, ch 172, § 14.


36-4-31.6 Application of contested case procedure.
     36-4-31.6.   Application of contested case procedure. If the grant, denial, or renewal of a license, resident license, or certificate to practice allopathic or osteopathic medicine was previously treated as a contested case resulting in a final decision, the provisions of chapter 1-26 concerning contested cases do not apply unless the Board of Examiners determines that there has been a substantial change of circumstance since the proceedings in the prior contested case.

Source: SL 1987, ch 267; SL 2009, ch 178, § 14; SL 2013, ch 172, § 15.


36-4-32 Suspension of license, resident license, or certificate for mental incompetence.
     36-4-32.   Suspension of license, resident license, or certificate for mental incompetence. In case any person holding a license, resident license, or certificate to practice allopathic or osteopathic medicine, surgery and obstetrics shall by any final order or adjudication of any court of competent jurisdiction be adjudged to be mentally incompetent or insane, the license, resident license, or certificate shall be suspended by the board after proceedings in compliance with chapter 1-26, and anything in this chapter to the contrary notwithstanding, such suspension shall continue until the licensee, resident licensee, or certificate holder is found or adjudged by such court to be restored to reason or until the holder of the license, resident license, or certificate is duly discharged as restored to reason in any other manner provided by law and has appeared before the board at a regular or special meeting of the board to apply for such reinstatement. The board may establish such probationary conditions as it deems necessary for the best interests of licensee, resident licensee, or certificate holder.

Source: SL 1957, ch 116; SDC Supp 1960, § 27.0311 (14); SL 1963, ch 151; SDC Supp 1960, § 27.0311 (13) as enacted by SL 1969, ch 105, § 4; revised pursuant to SL 1972, ch 15, § 4; SL 2009, ch 178, § 15; SL 2013, ch 172, § 16.


36-4-33 Appeal from acts, rulings or decisions of Board of Examiners.
     36-4-33.   Appeal from acts, rulings or decisions of Board of Examiners. Any party feeling aggrieved by any acts, rulings, or decisions of the Board of Examiners acting pursuant to § 36-4-31, shall have the right to appeal the same under the provisions of chapter 1-26.

Source: SDC 1939, §§ 27.0114, 27.0306; SL 1949, ch 106, § 9; SL 1957, ch 116; SDC Supp 1960, § 27.0310; SL 1969, ch 105, § 3; revised pursuant to SL 1972, ch 15, § 4.


36-4-34 Injunction to restrain practice for statutory violation, unprofessional conduct, or incomp...
     36-4-34.   Injunction to restrain practice for statutory violation, unprofessional conduct, or incompetence--Election of remedies. If it appears from evidence satisfactory to the Board of Examiners that any person has violated the provisions of this chapter or that any licensee, resident licensee, or certificate holder under this chapter has been guilty of unprofessional or dishonorable conduct or is incompetent, the board may apply for an injunction in any court of competent jurisdiction to restrain the person or licensee, resident licensee, or certificate holder from continuing to practice allopathic or osteopathic medicine, surgery, or obstetrics in any of their branches in this state. Application for an injunction is an alternate to criminal proceedings, and the commencement of one proceeding by the board constitutes an election.

Source: SL 1957, ch 116; SDC Supp 1960, § 27.0311 (15); SDC Supp 1960, § 27.0316A as enacted by SL 1969, ch 105, § 9; revised pursuant to SL 1972, ch 15, § 4; SL 2005, ch 199, § 4; SL 2009, ch 178, § 16; SL 2013, ch 172, § 17.


36-4-35 Promulgation of rules by board.
     36-4-35.   Promulgation of rules by board. The Board of Examiners shall promulgate rules pursuant to chapter 1-26 pertaining to: licensure, fees, and inspections.

Source: SL 1949, ch 106, § 1; SDC Supp 1960, § 27.0301; SL 1969, ch 105, § 1; revised pursuant to SL 1972, ch 15, § 4; SL 1986, ch 302, § 54.


36-4-36 Previously licensed physicians not affected.
     36-4-36.   Previously licensed physicians not affected. Nothing in this chapter shall in any way prohibit, interfere with or affect whatsoever in any way physicians and surgeons, osteopathic physicians and osteopaths licensed prior to July 1, 1949, from practicing their respective professions in all of the branches that their respective licenses permitted at the time said licenses were granted.

Source: SL 1949, ch 106, § 4; SDC Supp 1960, § 27.0304.


36-4-37 Transfer of active patient records--Destruction--Notice.
     36-4-37.   Transfer of active patient records--Destruction--Notice. Active patient records controlled by a physician licensed pursuant to this chapter or by his estate may not be transferred to any person not licensed under this chapter unless the records are transferred to the patient or the patient's personal representative or designee, the patient's parent in the case of a minor, a health care facility licensed under chapter 34-12 or a corporation organized for the purpose of owning and operating a health care clinic. If active patient records cannot be so transferred, they shall be retained by the physician or estate in possession of them or destroyed. Prior to any transfer or destruction of active patient records, reasonable notice of at least thirty days shall be given by mail to the patient, the patient's parent in the case of a minor or the patient's personal representative at his last known address stating the proposed disposition of the records and giving a deadline prior to which the records may be claimed.

Source: SL 1992, ch 265, § 1.


36-4-38 Destruction of inactive patient records.
     36-4-38.   Destruction of inactive patient records. Nothing in § 36-4-37 prevents a physician licensed pursuant to this chapter from destroying patient records which have become inactive or for which the whereabouts of the patient is no longer known to the physician.

Source: SL 1992, ch 265, § 2.


36-4-39 Practice of medicine or osteopathy by holder of permanent, unrestricted license.
     36-4-39.   Practice of medicine or osteopathy by holder of permanent, unrestricted license. Notwithstanding anything in this chapter to the contrary, any physician who is the holder of a permanent, unrestricted license to practice medicine or osteopathy in any state or territory of the United States, the District of Columbia, or Province of Canada may practice medicine or osteopathy in this state without first obtaining a license from the Board of Medical and Osteopathic Examiners under one or more of the following circumstances:
             (1)      As a member of an organ harvesting team;
             (2)      On board an air ambulance and as a part of its treatment team;
             (3)      To provide one time consultation or teaching assistance for a period of not more than twenty-four hours; or
             (4)      To provide consultation or teaching assistance previously approved by the Board of Medical and Osteopathic Examiners for charitable organizations.

Source: SL 1992, ch 266, § 1.


36-4-40 Supervision and discipline of holder of permanent, unrestricted license to practice medici...
     36-4-40.   Supervision and discipline of holder of permanent, unrestricted license to practice medicine or osteopathy. Any physician practicing medicine or osteopathy under the circumstances permitted by § 36-4-39 shall be subject to supervision and discipline by the Board of Medical and Osteopathic Examiners under this chapter in the same manner as any other licensee under this chapter and practice by a nonresident physician under the terms of § 36-4-39 is considered to constitute submission by such physician to jurisdiction by the board.

Source: SL 1992, ch 266, § 2.


36-4-41 Practice of medicine or osteopathy in South Dakota while located outside of state.
     36-4-41.   Practice of medicine or osteopathy in South Dakota while located outside of state. Any nonresident physician or osteopath who, while located outside this state, provides diagnostic or treatment services through electronic means to a patient located in this state under a contract with a health care provider licensed under Title 36, a clinic located in this state that provides health services, a health maintenance organization, a preferred provider organization, or a health care facility licensed under chapter 34-12, is engaged in the practice of medicine or osteopathy in this state. Consultation between a nonresident physician or osteopath and a licensee under this chapter is governed by § 36-2-9.

Source: SL 1995, ch 212; SL 2002, ch 175, § 2.


36-4-42 Peer review committee defined.
     36-4-42.   Peer review committee defined. For the purposes of §§ 36-4-25, 36-4-26.1 and 36-4-43, a peer review committee is one or more persons acting as any committee of a state or local professional association or society, any committee of a licensed health care facility or the medical staff of a licensed health care facility, or any committee comprised of physicians within a medical care foundation, health maintenance organization, preferred provider organization, independent practice association, group medical practice, provider sponsored organization, or any other organization of physicians formed pursuant to state or federal law, that engages in peer review activity. For the purposes of this section, a peer review committee is also one or more persons acting as an administrative or medical committee, department, section, board of directors, shareholder or corporate member, or audit group, including the medical audit committee, of a licensed health care facility.

Source: SL 1998, ch 172, § 1.


36-4-43 Peer review activities defined.
     36-4-43.   Peer review activities defined. For the purposes of §§ 36-4-25, 36-4-26.1 and 36-4-42, peer review activity is the procedure by which peer review committees monitor, evaluate, and recommend actions to improve the delivery and quality of services within their respective facilities, agencies, and professions, including recommendations, consideration of recommendations, actions with regard to recommendations, and implementation of actions. Peer review activity and acts or proceedings undertaken or performed within the scope of the functions of a peer review committee include:
             (1)      Matters affecting membership of a health professional on the staff of a health care facility or agency;
             (2)      The grant, delineation, renewal, denial, modification, limitation, or suspension of clinical privileges to provide health care services at a licensed health care facility;
             (3)      Matters affecting employment and terms of employment of a health professional by a health maintenance organization, preferred provider organization, independent practice association, or any other organization of physicians formed pursuant to state or federal law;
             (4)      Matters affecting the membership and terms of membership in a health professional association, including decisions to suspend membership privileges, expel from membership, reprimand, or censure a member, or other disciplinary actions;
             (5)      Review and evaluation of qualifications, competency, character, experience, activities, conduct, or performance of any health professional, including the medical residents of health care facility; and
             (6)      Review of the quality, type, or necessity of services provided by one or more health professionals or medical residents, individually or as a statistically significant group, or both.

Source: SL 1998, ch 172, § 2.


36-4-44 Interstate Medical Licensure Compact adopted.
     36-4-44.   Interstate Medical Licensure Compact adopted. The Interstate Medical Licensure Compact is enacted into law and entered into with all other jurisdictions that legally join the compact, which is substantially as follows:
INTERSTATE MEDICAL LICENSURE COMPACT

SECTION 1: PURPOSE

     In order to strengthen access to health care, and in recognition of the advances in the delivery of health care, the member states of the Interstate Medical Licensure Compact have allied in common purpose to develop a comprehensive process that complements the existing licensing and regulatory authority of state medical boards, provides a streamlined process that allows physicians to become licensed in multiple states, thereby enhancing the portability of a medical license and ensuring the safety of patients. The compact creates another pathway for licensure and does not otherwise change a state's existing Medical Practice Act. The compact also adopts the prevailing standard for licensure and affirms that the practice of medicine occurs where the patient is located at the time of the physician-patient encounter, and therefore, requires the physician to be under the jurisdiction of the state medical board where the patient is located. State medical boards that participate in the compact retain the jurisdiction to impose an adverse action against a license to practice medicine in that state issued to a physician through the procedures in the compact.
SECTION 2: DEFINITIONS

     In this compact:
             (a)      "Bylaws" means those bylaws established by the Interstate Commission pursuant to section 11 for its governance, or for directing and controlling its actions and conduct.
             (b)      "Commissioner" means the voting representative appointed by each member board pursuant to section 11.
             (c)      "Conviction" means a finding by a court that an individual is guilty of a criminal offense through adjudication, or entry of a plea of guilt or no contest to the charge by the offender. Evidence of an entry of a conviction of a criminal offense by the court shall be considered final for purposes of disciplinary action by a member board.
             (d)      "Expedited License" means a full and unrestricted medical license granted by a member state to an eligible physician through the process set forth in the compact.
             (e)      "Interstate Commission" means the interstate commission created pursuant to section 11.
             (f)      "License" means authorization by a state for a physician to engage in the practice of medicine, which would be unlawful without the authorization.
             (g)      "Medical Practice Act" means laws and regulations governing the practice of allopathic and osteopathic medicine within a member state.
             (h)      "Member Board" means a state agency in a member state that acts in the sovereign interests of the state by protecting the public through licensure, regulation, and education of physicians as directed by the state government.
             (i)      "Member State" means a state that has enacted the compact.
             (j)      "Practice of Medicine" means the clinical prevention, diagnosis, or treatment of human disease, injury, or condition requiring a physician to obtain and maintain a license in compliance with the Medical Practice Act of a member state.
             (k)      "Physician" means any person who:
             (1)      Is a graduate of a medical school accredited by the Liaison Committee on Medical Education, the Commission on Osteopathic College Accreditation, or a medical school listed in the International Medical Education Directory or its equivalent;
             (2)      Passed each component of the United States Medical Licensing Examination (USMLE) or the Comprehensive Osteopathic Medical Licensing Examination (COMLEX-USA) within three attempts, or any of its predecessor examinations accepted by a state medical board as an equivalent examination for licensure purposes;
             (3)      Successfully completed graduate medical education approved by the Accreditation Council for Graduate Medical Education or the American Osteopathic Association;
             (4)      Holds specialty certification or a time-unlimited specialty certificate recognized by the American Board of Medical Specialties or the American Osteopathic Association's Bureau of Osteopathic Specialists;
             (5)      Possesses a full and unrestricted license to engage in the practice of medicine issued by a member board;
             (6)      Has never been convicted, received adjudication, deferred adjudication, community supervision, or deferred disposition for any offense by a court of appropriate jurisdiction;
             (7)      Has never held a license authorizing the practice of medicine subjected to discipline by a licensing agency in any state, federal, or foreign jurisdiction, excluding any action related to nonpayment of fees related to a license;
             (8)      Has never had a controlled substance license or permit suspended or revoked by a state or the United States Drug Enforcement Administration; and
             (9)      Is not under active investigation by a licensing agency or law enforcement authority in any state, federal, or foreign jurisdiction.
             (l)      "Offense" means a felony, gross misdemeanor, or crime of moral turpitude.
             (m)      "Rule" means a written statement by the Interstate Commission promulgated pursuant to section 12 of the compact that is of general applicability, implements, interprets, or prescribes a policy or provision of the Compact, or an organizational, procedural, or practice requirement of the Interstate Commission, and has the force and effect of statutory law in a member state, and includes the amendment, repeal, or suspension of an existing rule.
             (n)      "State" means any state, commonwealth, district, or territory of the United States.
             (o)      "State of Principal License" means a member state where a physician holds a license to practice medicine and which has been designated as such by the physician for purposes of registration and participation in the compact.
SECTION 3: ELIGIBILITY

     (a) A physician must meet the eligibility requirements as defined in section 2(k) to receive an expedited license under the terms and provisions of the compact.
     (b) A physician who does not meet the requirements of section 2(k) may obtain a license to practice medicine in a member state if the individual complies with all laws and requirements, other than the compact, relating to the issuance of a license to practice medicine in that state.
SECTION 4: DESIGNATION OF STATE OF PRINCIPAL LICENSE

     (a) A physician shall designate a member state as the state of principal license for purposes of registration for expedited licensure through the compact if the physician possesses a full and unrestricted license to practice medicine in that state, and the state is:
             (1)      The state of primary residence for the physician; or
             (2)      The state where at least twenty-five percent of the practice of medicine occurs; or
             (3)      The location of the physician's employer; or
             (4)      If no state qualifies under subsection (1), subsection (2), or subsection (3), the state designated as state of residence for purpose of federal income tax.
     (b) A physician may redesignate a member state as state of principal license at any time, as long as the state meets the requirements in subsection (a).
     (c) The Interstate Commission is authorized to develop rules to facilitate redesignation of another member state as the state of principal license.
SECTION 5: APPLICATION AND ISSUANCE OF EXPEDITED LICENSURE

     (a) A physician seeking licensure through the compact shall file an application for an expedited license with the member board of the state selected by the physician as the state of principal license.
     (b) Upon receipt of an application for an expedited license, the member board within the state selected as the state of principal license shall evaluate whether the physician is eligible for expedited licensure and issue a letter of qualification, verifying or denying the physician's eligibility, to the Interstate Commission.
             (i)      Static qualifications, which include verification of medical education, graduate medical education, results of any medical or licensing examination, and other qualifications as determined by the Interstate Commission through rule, shall not be subject to additional primary source verification where already primary source verified by the state of principal license.
             (ii)      The member board within the state selected as the state of principal license shall, in the course of verifying eligibility, perform a criminal background check of an applicant, including the use of the results of fingerprint or other biometric data checks compliant with the requirements of the Federal Bureau of Investigation, with the exception of federal employees who have suitability determination in accordance with U.S. C.F.R. § 731.202.
             (iii)      Appeal on the determination of eligibility shall be made to the member state where the application was filed and shall be subject to the law of that state.
     (c) Upon verification in subsection (b), physicians eligible for an expedited license shall complete the registration process established by the Interstate Commission to receive a license in a member state selected pursuant to subsection (a), including the payment of any applicable fees.
     (d) After receiving verification of eligibility under subsection (b) and any fees under subsection (c), a member board shall issue an expedited license to the physician. This license shall authorize the physician to practice medicine in the issuing state consistent with the Medical Practice Act and all applicable laws and regulations of the issuing member board and member state.
     (e) An expedited license shall be valid for a period consistent with the licensure period in the member state and in the same manner as required for other physicians holding a full and unrestricted license within the member state.
     (f) An expedited license obtained though the compact shall be terminated if a physician fails to maintain a license in the state of principal licensure for a nondisciplinary reason, without redesignation of a new state of principal licensure.
     (g) The Interstate Commission is authorized to develop rules regarding the application process, including payment of any applicable fees, and the issuance of an expedited license.
SECTION 6: FEES FOR EXPEDITED LICENSURE

     (a) A member state issuing an expedited license authorizing the practice of medicine in that state may impose a fee for a license issued or renewed through the compact.
     (b) The Interstate Commission is authorized to develop rules regarding fees for expedited licenses.
SECTION 7: RENEWAL AND CONTINUED PARTICIPATION

     (a) A physician seeking to renew an expedited license granted in a member state shall complete a renewal process with the Interstate Commission if the physician:
             (1)      Maintains a full and unrestricted license in a state of principal license;
             (2)      Has not been convicted, received adjudication, deferred adjudication, community supervision, or deferred disposition for any offense by a court of appropriate jurisdiction;
             (3)      Has not had a license authorizing the practice of medicine subject to discipline by a licensing agency in any state, federal, or foreign jurisdiction, excluding any action related to nonpayment of fees related to a license; and
             (4)      Has not had a controlled substance license or permit suspended or revoked by a state or the United States Drug Enforcement Administration.
     (b) Physicians shall comply with all continuing professional development or continuing medical education requirements for renewal of a license issued by a member state.
     (c) The Interstate Commission shall collect any renewal fees charged for the renewal of a license and distribute the fees to the applicable member board.
     (d) Upon receipt of any renewal fees collected in subsection (c), a member board shall renew the physician's license.
     (e) Physician information collected by the Interstate Commission during the renewal process will be distributed to all member boards.
     (f) The Interstate Commission is authorized to develop rules to address renewal of licenses obtained through the compact.
SECTION 8: COORDINATED INFORMATION SYSTEM

     (a) The Interstate Commission shall establish a database of all physicians licensed, or who have applied for licensure, under section 5.
     (b) Notwithstanding any other provision of law, member boards shall report to the Interstate Commission any public action or complaints against a licensed physician who has applied or received an expedited license through the compact.
     (c) Member boards shall report disciplinary or investigatory information determined as necessary and proper by rule of the Interstate Commission.
     (d) Member boards may report any nonpublic complaint, disciplinary, or investigatory information not required by subsection (c) to the Interstate Commission.
     (e) Member boards shall share complaint or disciplinary information about a physician upon request of another member board.
     (f) All information provided to the Interstate Commission or distributed by member boards shall be confidential, filed under seal, and used only for investigatory or disciplinary matters.
     (g) The Interstate Commission is authorized to develop rules for mandated or discretionary sharing of information by member boards.
SECTION 9: JOINT INVESTIGATIONS

     (a) Licensure and disciplinary records of physicians are deemed investigative.
     (b) In addition to the authority granted to a member board by its respective Medical Practice Act or other applicable state law, a member board may participate with other member boards in joint investigations of physicians licensed by the member boards.
     (c) A subpoena issued by a member state shall be enforceable in other member states.
     (d) Member boards may share any investigative, litigation, or compliance materials in furtherance of any joint or individual investigation initiated under the compact.
     (e) Any member state may investigate actual or alleged violations of the statutes authorizing the practice of medicine in any other member state in which a physician holds a license to practice medicine.
SECTION 10: DISCIPLINARY ACTIONS

     (a) Any disciplinary action taken by any member board against a physician licensed through the compact shall be deemed unprofessional conduct which may be subject to discipline by other member boards, in addition to any violation of the Medical Practice Act or regulations in that state.
     (b) If a license granted to a physician by the member board in the state of principal license is revoked, surrendered or relinquished in lieu of discipline, or suspended, then all licenses issued to the physician by member boards shall automatically be placed, without further action necessary by any member board, on the same status. If the member board in the state of principal license subsequently reinstates the physician's license, a license issued to the physician by any other member board shall remain encumbered until that respective member board takes action to reinstate the license in a manner consistent with the Medical Practice Act of that state.
     (c) If disciplinary action is taken against a physician by a member board not in the state of principal license, any other member board may deem the action conclusive as to matter of law and fact decided, and:
             (i)      Impose the same or lesser sanction(s) against the physician so long as such sanctions are consistent with the Medical Practice Act of that state; or
             (ii)      Pursue separate disciplinary action against the physician under its respective Medical Practice Act, regardless of the action taken in other member states.
     (d) If a license granted to a physician by a member board is revoked, surrendered or relinquished in lieu of discipline, or suspended, then any license(s) issued to the physician by any other member board(s) shall be suspended, automatically and immediately without further action necessary by the other member board(s), for ninety days upon entry of the order by the disciplining board, to permit the member board(s) to investigate the basis for the action under the Medical Practice Act of that state. A member board may terminate the automatic suspension of the license it issued prior to the completion of the ninety day suspension period in a manner consistent with the Medical Practice Act of that state.
SECTION 11: INTERSTATE MEDICAL LICENSURE COMPACT COMMISSION

     (a) The member states hereby create the Interstate Medical Licensure Compact Commission.
     (b) The purpose of the Interstate Commission is the administration of the Interstate Medical Licensure Compact, which is a discretionary state function.
     (c) The Interstate Commission shall be a body corporate and joint agency of the member states and shall have all the responsibilities, powers, and duties set forth in the compact, and such additional powers as may be conferred upon it by a subsequent concurrent action of the respective legislatures of the member states in accordance with the terms of the compact.
     (d) The Interstate Commission shall consist of two voting representatives appointed by each member state who shall serve as commissioners. In states where allopathic and osteopathic physicians are regulated by separate member boards, or if the licensing and disciplinary authority is split between multiple member boards within a member state, the member state shall appoint one representative from each member board. A commissioner shall be a(n):
             (1)      Allopathic or osteopathic physician appointed to a member board;
             (2)      Executive director, executive secretary, or similar executive of a member board; or
             (3)      Member of the public appointed to a member board.
     (e) The Interstate Commission shall meet at least once each calendar year. A portion of this meeting shall be a business meeting to address such matters as may properly come before the commission, including the election of officers. The chairperson may call additional meetings and shall call for a meeting upon the request of a majority of the member states.
     (f) The bylaws may provide for meetings of the Interstate Commission to be conducted by telecommunication or electronic communication.
     (g) Each commissioner participating at a meeting of the Interstate Commission is entitled to one vote. A majority of commissioners shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the Interstate Commission. A commissioner shall not delegate a vote to another commissioner. In the absence of its commissioner, a member state may delegate voting authority for a specified meeting to another person from that state who shall meet the requirements of subsection (d).
     (h) The Interstate Commission shall provide public notice of all meetings and all meetings shall be open to the public. The Interstate Commission may close a meeting, in full or in portion, where it determines by a two-thirds vote of the commissioners present that an open meeting would be likely to:
             (1)      Relate solely to the internal personnel practices and procedures of the Interstate Commission;
             (2)      Discuss matters specifically exempted from disclosure by federal statute;
             (3)      Discuss trade secrets, commercial, or financial information that is privileged or confidential;
             (4)      Involve accusing a person of a crime, or formally censuring a person;
             (5)      Discuss information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
             (6)      Discuss investigative records compiled for law enforcement purposes; or
             (7)      Specifically relate to the participation in a civil action or other legal proceeding.
     (i) The Interstate Commission shall keep minutes which shall fully describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, including record of any roll call votes.
     (j) The Interstate Commission shall make its information and official records, to the extent not otherwise designated in the compact or by its rules, available to the public for inspection.
     (k) The Interstate Commission shall establish an executive committee, which shall include officers, members, and others as determined by the bylaws. The executive committee shall have the power to act on behalf of the Interstate Commission, with the exception of rulemaking, during periods when the Interstate Commission is not in session. When acting on behalf of the Interstate Commission, the executive committee shall oversee the administration of the compact including enforcement and compliance with the provisions of the compact, its bylaws and rules, and other such duties as necessary.
     (l) The Interstate Commission may establish other committees for governance and administration of the compact.
SECTION 12: POWERS AND DUTIES OF THE INTERSTATE COMMISSION

     The Interstate Commission shall have the duty and power to:
             (a)      Oversee and maintain the administration of the compact;
             (b)      Promulgate rules which shall be binding to the extent and in the manner provided for in the compact;
             (c)      Issue, upon the request of a member state or member board, advisory opinions concerning the meaning or interpretation of the compact, its bylaws, rules, and actions;
             (d)      Enforce compliance with compact provisions, the rules promulgated by the Interstate Commission, and the bylaws, using all necessary and proper means, including but not limited to the use of judicial process;
             (e)      Establish and appoint committees including, but not limited to, an executive committee as required by section 11, which shall have the power to act on behalf of the Interstate Commission in carrying out its powers and duties;
             (f)      Pay, or provide for the payment of the expenses related to the establishment, organization, and ongoing activities of the Interstate Commission;
             (g)      Establish and maintain one or more offices;
             (h)      Borrow, accept, hire, or contract for services of personnel;
             (i)      Purchase and maintain insurance and bonds;
             (j)      Employ an executive director who shall have such powers to employ, select or appoint employees, agents, or consultants, and to determine their qualifications, define their duties, and fix their compensation;
             (k)      Establish personnel policies and programs relating to conflicts of interest, rates of compensation, and qualifications of personnel;
             (l)      Accept donations and grants of money, equipment, supplies, materials and services, and to receive, utilize, and dispose of it in a manner consistent with the conflict of interest policies established by the Interstate Commission;
             (m)      Lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve or use, any property, real, personal, or mixed;
             (n)      Sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed;
             (o)      Establish a budget and make expenditures;
             (p)      Adopt a seal and bylaws governing the management and operation of the Interstate Commission;
             (q)      Report annually to the Legislatures and Governors of the member states concerning the activities of the Interstate Commission during the preceding year. Such reports shall also include reports of financial audits and any recommendations that may have been adopted by the Interstate Commission;
             (r)      Coordinate education, training, and public awareness regarding the compact, its implementation, and its operation;
             (s)      Maintain records in accordance with the bylaws;
             (t)      Seek and obtain trademarks, copyrights, and patents; and
             (u)      Perform such functions as may be necessary or appropriate to achieve the purposes of the compact.
SECTION 13: FINANCE POWERS

     (a) The Interstate Commission may levy on and collect an annual assessment from each member state to cover the cost of the operations and activities of the Interstate Commission and its staff. The total assessment must be sufficient to cover the annual budget approved each year for which revenue is not provided by other sources. The aggregate annual assessment amount shall be allocated upon a formula to be determined by the Interstate Commission, which shall promulgate a rule binding upon all member states.
     (b) The Interstate Commission shall not incur obligations of any kind prior to securing the funds adequate to meet the same.
     (c) The Interstate Commission shall not pledge the credit of any of the member states, except by, and with the authority of, the member state.
     (d) The Interstate Commission shall be subject to a yearly financial audit conducted by a certified or licensed public accountant and the report of the audit shall be included in the annual report of the Interstate Commission.
SECTION 14: ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION

     (a) The Interstate Commission shall, by a majority of commissioners present and voting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact within twelve months of the first Interstate Commission meeting.
     (b) The Interstate Commission shall elect or appoint annually from among its commissioners a chairperson, a vice-chairperson, and a treasurer, each of whom shall have such authority and duties as may be specified in the bylaws. The chairperson, or in the chairperson's absence or disability, the vice-chairperson, shall preside at all meetings of the Interstate Commission.
     (c) Officers selected in subsection (b) shall serve without remuneration from the Interstate Commission.
     (d) The officers and employees of the Interstate Commission shall be immune from suit and liability, either personally or in their official capacity, for a claim for damage to or loss of property or personal injury or other civil liability caused or arising out of, or relating to, an actual or alleged act, error, or omission that occurred, or that such person had a reasonable basis for believing occurred, within the scope of Interstate Commission employment, duties, or responsibilities; provided that such person shall not be protected from suit or liability for damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of such person.
             (1)      The liability of the executive director and employees of the Interstate Commission or representatives of the Interstate Commission, acting within the scope of such person's employment or duties for acts, errors, or omissions occurring within such person's state, may not exceed the limits of liability set forth under the constitution and laws of that state for state officials, employees, and agents. The Interstate Commission is considered to be an instrumentality of the states for the purposes of any such action. Nothing in this subsection shall be construed to protect such person from suit or liability for damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of such person.
             (2)      The Interstate Commission shall defend the executive director, its employees, and subject to the approval of the attorney general or other appropriate legal counsel of the member state represented by an Interstate Commission representative, shall defend such Interstate Commission representative in any civil action seeking to impose liability arising out of an actual or alleged act, error or omission that occurred within the scope of Interstate Commission employment, duties or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such person.
             (3)      To the extent not covered by the state involved, member state, or the Interstate Commission, the representatives or employees of the Interstate Commission shall be held harmless in the amount of a settlement or judgment, including attorney's fees and costs, obtained against such persons arising out of an actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such persons.
SECTION 15: RULE-MAKING FUNCTIONS OF THE INTERSTATE COMMISSION

     (a) The Interstate Commission shall promulgate reasonable rules in order to effectively and efficiently achieve the purposes of the compact. Notwithstanding the foregoing, in the event the Interstate Commission exercises its rule-making authority in a manner that is beyond the scope of the purposes of the compact, or the powers granted hereunder, then such an action by the Interstate Commission shall be invalid and have no force or effect.
     (b) Rules deemed appropriate for the operations of the Interstate Commission shall be made pursuant to a rule-making process that substantially conforms to the Model State Administrative Procedure Act of 2010, and subsequent amendments thereto.
     (c) Not later than thirty days after a rule is promulgated, any person may file a petition for judicial review of the rule in the United States District Court for the District of Columbia or the federal district where the Interstate Commission has its principal offices, provided that the filing of such a petition shall not stay or otherwise prevent the rule from becoming effective unless the court finds that the petitioner has a substantial likelihood of success. The court shall give deference to the actions of the Interstate Commission consistent with applicable law and shall not find the rule to be unlawful if the rule represents a reasonable exercise of the authority granted to the Interstate Commission.
SECTION 16: OVERSIGHT OF INTERSTATE COMPACT

     (a) The executive, legislative, and judicial branches of state government in each member state shall enforce the compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of the compact and the rules promulgated hereunder shall have standing as statutory law but shall not override existing state authority to regulate the practice of medicine.
     (b) All courts shall take judicial notice of the compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of the compact which may affect the powers, responsibilities or actions of the Interstate Commission.
     (c) The Interstate Commission shall be entitled to receive all service of process in any such proceeding, and shall have standing to intervene in the proceeding for all purposes. Failure to provide service of process to the Interstate Commission shall render a judgment or order void as to the Interstate Commission, the compact, or promulgated rules.
SECTION 17: ENFORCEMENT OF INTERSTATE COMPACT

     (a) The Interstate Commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of the compact.
     (b) The Interstate Commission may, by majority vote of the commissioners, initiate legal action in the United States District Court for the District of Columbia, or, at the discretion of the Interstate Commission, in the federal district where the Interstate Commission has its principal offices, to enforce compliance with the provisions of the compact, and its promulgated rules and bylaws, against a member state in default. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation including reasonable attorney's fees.
     (c) The remedies herein shall not be the exclusive remedies of the Interstate Commission. The Interstate Commission may avail itself of any other remedies available under state law or the regulation of a profession.
SECTION 18: DEFAULT PROCEDURES

     (a) The grounds for default include, but are not limited to, failure of a member state to perform such obligations or responsibilities imposed upon it by the compact, or the rules and bylaws of the Interstate Commission promulgated under the compact.
     (b) If the Interstate Commission determines that a member state has defaulted in the performance of its obligations or responsibilities under the compact, or the bylaws or promulgated rules, the Interstate Commission shall:
             (1)      Provide written notice to the defaulting state and other member states, of the nature of the default, the means of curing the default, and any action taken by the Interstate Commission. The Interstate Commission shall specify the conditions by which the defaulting state must cure its default; and
             (2)      Provide remedial training and specific technical assistance regarding the default.
     (c) If the defaulting state fails to cure the default, the defaulting state shall be terminated from the compact upon an affirmative vote of a majority of the commissioners and all rights, privileges, and benefits conferred by the compact shall terminate on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of the default.
     (d) Termination of membership in the compact shall be imposed only after all other means of securing compliance have been exhausted. Notice of intent to terminate shall be given by the Interstate Commission to the Governor, the majority and minority leaders of the defaulting state's Legislature, and each of the member states.
     (e) The Interstate Commission shall establish rules and procedures to address licenses and physicians that are materially impacted by the termination of a member state, or the withdrawal of a member state.
     (f) The member state which has been terminated is responsible for all dues, obligations, and liabilities incurred through the effective date of termination including obligations, the performance of which extends beyond the effective date of termination.
     (g) The Interstate Commission shall not bear any costs relating to any state that has been found to be in default or which has been terminated from the compact, unless otherwise mutually agreed upon in writing between the Interstate Commission and the defaulting state.
     (h) The defaulting state may appeal the action of the Interstate Commission by petitioning the United States District Court for the District of Columbia or the federal district where the Interstate Commission has its principal offices. The prevailing party shall be awarded all costs of such litigation including reasonable attorney's fees.
SECTION 19: DISPUTE RESOLUTION

     (a) The Interstate Commission shall attempt, upon the request of a member state, to resolve disputes which are subject to the compact and which may arise among member states or member boards.
     (b) The Interstate Commission shall promulgate rules providing for both mediation and binding dispute resolution as appropriate.
SECTION 20: MEMBER STATES, EFFECTIVE DATE AND AMENDMENT

     (a) Any state is eligible to become a member state of the compact.
     (b) The compact shall become effective and binding upon legislative enactment of the compact into law by no less than seven states. Thereafter, it shall become effective and binding on a state upon enactment of the compact into law by that state.
     (c) The Governors of nonmember states, or their designees, shall be invited to participate in the activities of the Interstate Commission on a nonvoting basis prior to adoption of the compact by all states.
     (d) The Interstate Commission may propose amendments to the compact for enactment by the member states. No amendment shall become effective and binding upon the Interstate Commission and the member states unless and until it is enacted into law by unanimous consent of the member states.
SECTION 21: WITHDRAWAL

     (a) Once effective, the compact shall continue in force and remain binding upon each and every member state; provided that a member state may withdraw from the compact by specifically repealing the statute which enacted the compact into law.
     (b) Withdrawal from the compact shall be by the enactment of a statute repealing the same, but shall not take effect until one year after the effective date of such statute and until written notice of the withdrawal has been given by the withdrawing state to the Governor of each other member state.
     (c) The withdrawing state shall immediately notify the chairperson of the Interstate Commission in writing upon the introduction of legislation repealing the compact in the withdrawing state.
     (d) The Interstate Commission shall notify the other member states of the withdrawing state's intent to withdraw within sixty days of its receipt of notice provided under subsection (c).
     (e) The withdrawing state is responsible for all dues, obligations and liabilities incurred through the effective date of withdrawal, including obligations, the performance of which extend beyond the effective date of withdrawal.
     (f) Reinstatement following withdrawal of a member state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the Interstate Commission.
     (g) The Interstate Commission is authorized to develop rules to address the impact of the withdrawal of a member state on licenses granted in other member states to physicians who designated the withdrawing member state as the state of principal license.
SECTION 22: DISSOLUTION

     (a) The compact shall dissolve effective upon the date of the withdrawal or default of the member state which reduces the membership in the compact to one member state.
     (b) Upon the dissolution of the compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the Interstate Commission shall be concluded and surplus funds shall be distributed in accordance with the bylaws.
SECTION 23: SEVERABILITY AND CONSTRUCTION

     (a) The provisions of the compact shall be severable, and if any phrase, clause, sentence, or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.
     (b) The provisions of the compact shall be liberally construed to effectuate its purposes.
     (c) Nothing in the compact shall be construed to prohibit the applicability of other interstate compacts to which the states are members.
SECTION 24: BINDING EFFECT OF COMPACT AND OTHER LAWS

     (a) Nothing herein prevents the enforcement of any other law of a member state that is not inconsistent with the compact.
     (b) All laws in a member state in conflict with the compact are superseded to the extent of the conflict.
     (c) All lawful actions of the Interstate Commission, including all rules and bylaws promulgated by the commission, are binding upon the member states.
     (d) All agreements between the Interstate Commission and the member states are binding in accordance with their terms.
     (e) In the event any provision of the compact exceeds the constitutional limits imposed on the Legislature of any member state, such provision shall be ineffective to the extent of the conflict with the constitutional provision in question in that member state.

Source: SL 2015, ch 198, § 1.


36-4-45 Use of general funds to support Interstate Medical Licensure Compact prohibited.
     36-4-45.   Use of general funds to support Interstate Medical Licensure Compact prohibited. No state general funds shall be used to support the Interstate Medical Licensure Compact.

Source: SL 2015, ch 198, § 2.


36-4-46 Practice of certified professional midwife.
     36-4-46.   Practice of certified professional midwife. Nothing in this chapter restricts the right of a certified professional midwife to practice in accordance with chapter 36-9C.

Source: SL 2017, ch 172, § 36.


Title 36

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