20:48:17:01. Program personnel qualifications and duties. The board may employ or contract with individuals to serve as program personnel. The board’s executive director may appoint a program director who is licensed, or has a privilege to practice, in South Dakota as a health care professional, and possesses knowledge in mental health and substance-use disorders. The program director shall report to the executive director of the board. Program personnel duties include:

(1) Coordinating the evaluation committee;

(2) Facilitating the application and intake process;

(3) Developing participation agreements;

(4) Case managing and coordinating a participant’s compliance and continuing care with a qualified provider;

(5) Evaluating substance use and mental health treatment programs and health care providers for use by participants;

(6) Providing written reports to the board; and

(7) Maintaining participant records pursuant to § 20:48:17:13.

Source: 48 SDR 40, effective October 5, 2021.

General Authority: SDCL 36-2A-14.

Law Implemented: SDCL 36-2A-2, 36-9-15, 36-9-16.

20:48:17:02. Evaluation committee qualifications and duties. The board shall appoint an evaluation committee comprised of at least three members. Committee members shall hold licensure as health care providers with expertise in treating substance use or mental health disorders. Each committee member shall serve a term of three years. No member may be appointed to more than three consecutive terms. If a vacancy occurs, the board shall appoint a person to fill the unexpired term. The appointment of a person to an unexpired term is not considered a full term. No committee member may serve on a licensing board or as an officer in a professional organization. Action taken by the committee pursuant to this chapter may be performed by a majority of members. The committee shall maintain the confidentiality of participant records and meet the requirements of SDCL chapter 1-25. The program director shall convene the committee as often as needed to:

(1) Provide recommendations on the development of program policies;

(2) Approve substance use and mental health treatment programs or health care providers for use by participants;

(3) Provide recommendations on an applicant’s eligibility to enroll in the program;

(4) Approve individualized program participation agreements and return to work requirements;

(5) Evaluate a participant’s progress and recommend changes as needed;

(6) Evaluate and make recommendations on a participant’s toxicology results; and

(7) Provide recommendations on reporting an applicant or participant to the board.

Source: 48 SDR 40, effective October 5, 2021.

General Authority: SDCL 36-2A-14.

Law Implemented: SDCL 36-2A-2.

20:48:17:03. Standards for approval of treatment programs and health professionals. Program personnel shall maintain a list of approved mental health or substance use disorder treatment programs and qualified health professionals for use by participants. Qualified treatment programs must hold state or national accreditation and be in good standing. Qualified health professionals must be licensed or certified in South Dakota, or have a privilege to practice in the state, be in good standing, and be authorized to provide treatment or services for substance use or mental health disorders. Approved health professionals shall:

(1) Perform a comprehensive substance use or mental health assessment and forensic evaluation on a participant;

(2) Use standardized psychological tests and questionnaires;

(3) Provide recommendations to program personnel on a participant’s ability to safely return to practice; and

(4) Report to program personnel that a participant has a positive drug screen, exacerbated psychiatric symptoms, threatens to leave treatment against medical advice, or there are other non-compliance concerns.

Source: 48 SDR 40, effective October 5, 2021.

General Authority: SDCL 36-2A-14.

Law Implemented: SDCL 36-2A-2, 36-2A-9.

20:48:17:04. Voluntary enrollment. An individual may be voluntarily enrolled in the program upon meeting the application requirements in § 20:48:17:06 and if the applicant:

(1) Does not have a history of nursing practice involving significant harm or death to a patient;

(2) Has not engaged in the diversion of drugs or substances for the purpose of sale or distribution to others;

(3) Has not engaged in behavior that has a high potential to cause patient harm;

(4) Has not fraudulently written a prescription;

(5) Has not been convicted of crimes involving sexual misconduct; and

(6) Does not have a history of disciplinary action that would prohibit licensure in South Dakota and is not under investigation that may result in discipline leading to probation, suspension, or revocation of license.

Program personnel shall maintain the confidentiality of participants and not publicly share participant information. Participants accepted into the program will be issued a single state nursing license. Participants who fail to comply with the terms of the program or participation agreement may be denied admission or terminated from the program and reported to the board.

Source: 48 SDR 40, effective October 5, 2021.

General Authority: SDCL 36-2A-14.

Law Implemented: SDCL 36-2A-1.1, 36-2A-2, 36-2A-7, 36-2A-8.

20:48:17:05. Board-ordered enrollment. An individual who is required under a board of nursing order to participate in the program, is pending board action, or does not meet the requirements for voluntary enrollment, and who completes the requirements in § 20:48:17:06, shall be enrolled in the program by program personnel. Participants accepted into the program will be issued a single state nursing license. Participants who fail to comply with the terms of the program or participation agreement may be terminated from the program and reported to the board.

Source: 48 SDR 40, effective October 5, 2021.

General Authority: SDCL 36-2A-14.

Law Implemented: SDCL 36-2A-2, 36-2A-7, 36-2A-8.

20:48:17:06. Application and admission to program. Applicants for admission to the program shall:

(1) Provide a written application to program personnel containing evidence the applicant holds a nursing license in South Dakota, may apply for a South Dakota nursing license and is eligible for licensure, or is enrolled as a nursing student in an education program located in South Dakota;

(2) Agree to complete an admission interview with program personnel and provide documentation from an approved health care provider of:

(A) The applicant’s current condition or diagnosis;

(B) A treatment plan identifying the applicant has a mental health or substance use related issue; and

(C) The completion, or confirmed start date, of treatment for substance use or mental health disorder at an approved treatment facility;

(3) Agree to provide written authorization to allow program personnel access to any medical records from health care providers or treatment facilities;

(4) Sign a participation agreement that meets the requirements in § 20:48:17:07 and complete toxicology screening within ten business days of application to the program;

(5) Agree to meet with program personnel on a quarterly basis to review progress and compliance in the program; and

(6) Agree to pay costs or fees associated with the program.

Program personnel may recommend or refer participants to approved treatment programs or health care providers. An applicant who refuses to cooperate with the admission process may be reported to the board.

Source: 48 SDR 40, effective October 5, 2021.

General Authority: SDCL 36-2A-14.

Law Implemented: SDCL 36-2A-2, 36-2A-6, 36-2A-7.

20:48:17:07. Program participation. Participants must have on file a signed participation agreement developed by program personnel and approved by the evaluation committee. Program personnel may provide a copy of the agreement to the participant, the participant’s medical provider, or the work site monitor. Program personnel shall provide a copy of the agreement to the board for individuals required under a board of nursing order to participate in the program. The agreement must outline standard and individualized conditions based on symptoms and a participant’s practice setting. A participation agreement must include:

(1) Treatment and continuing care;

(2) Return to practice conditions or limitations, such as restrictions on workplace settings, hours or shifts worked, access to medications, training personnel;

(3) Employment status;

(4) Work site monitoring;

(5) Medication use;

(6) Toxicology screening;

(7) Support group participation; and

(8) Filing of reports.

Source: 48 SDR 40, effective October 5, 2021.

General Authority: SDCL 36-2A-14.

Law Implemented: SDCL 36-2A-2, 36-2A-6, 36-2A-9.

20:48:17:08. Return to practice requirements. A participant, who has agreed to refrain from practice, may return to nursing practice upon submitting evidence of:

(1) Compliance with the signed participation agreement;

(2) Identification and approval by program personnel of a worksite monitor. The worksite monitor must hold an unencumbered license or privilege to practice in South Dakota as a health care professional and be in a supervisory role or capable of observing the participant’s work performance;

(3) Receipt by program personnel of a signed release of information from the participant to allow program personnel to communicate with the worksite monitor and access employment information; and

(4) Receipt by program personnel of a signed agreement from the worksite monitor or employer agreeing to:

(A) Supervise the participant according to requirements listed in the participation agreement; and

(B) Submit evaluations of the participant’s work performance to program personnel upon request.

Source: 48 SDR 40, effective October 5, 2021.

General Authority: SDCL 36-2A-14.

Law Implemented: SDCL 36-2A-9.

20:48:17:09. Toxicology screening. Participants enrolled for substance use issues shall submit lab specimens for baseline toxicology screening within the first ten days of enrollment in the program to the program’s approved testing vendors in the manner required by the testing vendor. Thereafter, a participant shall submit specimens according to the conditions listed in the participation agreement.

Program personnel shall evaluate positive or abnormal toxicology results and may seek review of the results by the evaluation committee or a participant’s approved treatment provider. Failure by a participant to submit specimens as required, or obtaining an abnormal or positive toxicology result, may result in the participant being reported to the board.

Source: 48 SDR 40, effective October 5, 2021.

General Authority: SDCL 36-2A-14.

Law Implemented: SDCL 36-2A-9.

20:48:17:10. Failure to comply with program requirements -- Refrain-from-practice agreement. A participant who fails to comply may be reported to the board. Failure-to-comply incidences include:

(1) A positive toxicology screen;

(2) An unexcused, missed, tampered with, or abnormal drug screen;

(3) Failure to follow prescribed medical treatment;

(4) A violation of the participation agreement;

(5) Employment or practice concerns that have a high potential to cause patient harm; or

(6) An arrest or violation of law related to the participant’s substance use or mental health issue.

Program personnel may request a participant who fails to comply with program requirements to sign a refrain-from-practice agreement and to extend the length of the participation agreement. A participant who fails to sign a refrain-from-practice agreement must be reported to the board and may be terminated from the program.

Source: 48 SDR 40, effective October 5, 2021

General Authority: SDCL 36-2A-14.

Law Implemented: SDCL 36-2A-9.

20:48:17:11. Leave of absence. Participants may apply for a leave of absence from the program. The program director or evaluation committee may approve a leave of absence request from a participant. A participant who completes a leave of absence may return to the program after meeting eligibility requirements established by program personnel or the evaluation committee. The participant’s participation agreement may be amended or lengthened as a condition of returning. A participant who fails to meet requirements to return to the program must be reported to the board.

Source: 48 SDR 40, effective October 5, 2021.

General Authority: SDCL 36-2A-14.

Law Implemented: SDCL 36-2A-2, 36-2A-8, 36-2A-9.

20:48:17:12. Discharge criteria. A participant who completes the terms of a participation agreement and applicable board order, may apply for discharge from the program. A participant’s request may be approved by the program director upon receipt of the participant’s application and:

(1) The participant’s written plan for continued wellness or recovery;

(2) A recommendation from the participant’s worksite monitor or employer supporting discharge;

(3) A recommendation from the participant’s approved treatment provider supporting discharge;

(4) A recommendation by the evaluation committee supporting discharge; and

(5) A period of negative toxicology screens, as defined in the participation agreement, for a participant enrolled with substance use issues.

Source: 48 SDR 40, effective October 5, 2021.

General Authority: SDCL 36-2A-14.

Law Implemented: SDCL 36-2A-2.

20:48:17:13. Participant records. Program personnel shall maintain applicant and participant records including name, license number, referral information, board orders, intake information, signed and dated participation agreement, authorizations for release of confidential information, treatment reports, case management notes, correspondence, compliance and monitoring documentation, and quarterly reports.

Program personnel shall maintain the confidentiality of participant records, and of an individual or entity who refers a participant to the program, according to federal and state laws. Participant records must be stored in a secured format and provided in a confidential manner to the evaluation committee, medical providers in an emergency situation, law enforcement upon threats to commit a crime, state or local authorities for suspected child or elder abuse or neglect, or other parties upon the participant’s voluntary written release of the information. Following discharge from the program, program personnel shall maintain a participant’s records according to the state records and retention schedule.

Source: 48 SDR 40, effective October 5, 2021.

General Authority: SDCL 36-2A-14.

Law Implemented: SDCL 36-2A-12.

20:48:17:14. Reporting requirements. Program personnel shall report and provide participant or applicant records to the board on an applicant or participant that:

(1) Refuses to complete admission requirements into the program when the applicant is found to have an issue or disorder that affects the applicant’s ability to practice safely;

(2) Is denied admission or terminated from the program for diverting controlled substances for other than personal use, engaging in sexual misconduct, or being deemed by program personnel to be too great a risk to the public;

(3) Fails to maintain on file a signed participation agreement; or

(4) Fails to comply with the terms of the participation agreement.

Program personnel shall provide the board quarterly reports on mandated program participants including the participant’s name, enrollment date, progress and compliance in the program, and evaluation committee recommendations. The program director shall provide an annual report of activities summarizing program and participant statistics to the board.

Source: 48 SDR 40, effective October 5, 2021.

General Authority: SDCL 36-2A-14.

Law Implemented: SDCL 36-2A-2, 36-2A-12.

20:48:17:15. Program participation fees. The costs incurred through participation in the program are the responsibility of the participant. Failure to pay may be cause for termination from the program or reporting to the board.

Source: 48 SDR 40, effective October 5, 2021.

General Authority: SDCL 36-2A-14.

Law Implemented: SDCL 36-2A-2.

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