Administrative Rule 20:78:04 | South Dakota Legislature

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CHAPTER 20:78:04

COMPLAINT PROCEDURES

Section

20:78:04:01 Applicability.

20:78:04:02 Complaints.

20:78:04:03 Investigations.

20:78:04:04 Completion of complaint investigation.

20:78:04:04.01 Disciplinary action in another state.

20:78:04:05 Status of complainant.

20:78:04:06 Effect of failure to renew during investigation.

Rule 20:78:04:01 Applicability.

20:78:04:01. Applicability. The following procedure applies to complaints about holders of the licenses, permits, or certificates regulated by the Board of Medical and Osteopathic Examiners.

Source: 38 SDR 127, effective February 7, 2012; 43 SDR 57, effective October 20, 2016.

General Authority: SDCL 36-4-35, 36-4A-42, 36-4B-35, 36-9B-7, 36-10-36, 36-10B-3, 36-29-17, 36-31-13, 36-36-12.

Law Implemented: SDCL 36-4-27, 36-4-28, 36-4-29, 36-4-30, 36-4-32, 36-4A-37, 36-4A-38, 36-4A-39, 36-4A-40, 36-4B-28, 36-4B-31, 36-4B-32, 36-4B-33, 36-9B-8, 36-10-38, 36-10-39, 36-10-40, 36-10-41, 36-10-44, 36-10-45, 36-10-46, 36-10-49, 36-10B-13, 36-10B-14, 36-29-18, 36-29-19, 36-29-20, 36-29-21, 36-29-22, 36-29-25, 36-29-26, 36-29-27, 36-31-14, 36-31-15, 36-31-16, 36-31-17, 36-31-18, 36-31-21, 36-31-22, 36-36-6, 36-36-13.

Rule 20:78:04:02 Complaints.

20:78:04:02. Complaints. The executive secretary may initiate an investigation based on a written complaint. Any person filing a complaint shall submit the complaint in writing to the executive secretary. A complaint is not a public record. The executive secretary shall dismiss any complaint that concerns matters over which the board does not have jurisdiction, and shall notify the complainant of that action. The executive secretary may also initiate an investigation upon reasonable suspicion that a licensee is in violation of any applicable standard for professional conduct.

Source: 38 SDR 127, effective February 7, 2012; 43 SDR 57, effective October 20, 2016.

General Authority: SDCL 36-4-35, 36-4A-42, 36-4B-35, 36-9B-7, 36-10-36, 36-10B-3, 36-29-17, 36-31-13, 36-36-12.

Rule 20:78:04:03 Investigations.

20:78:04:03. Investigations. The executive secretary shall initiate investigation of a complaint by notifying the license, permit, or certificate holder of the complaint and obtaining a response to the complaint. If the executive secretary determines that the complaint concerns compliance with licensing standards and requirements, the executive shall investigate the complaint. The notice shall be in writing and shall include a statement that the licensure or licensee is entitled to due process rights, including the right to notice and an opportunity to be heard and to be represented by counsel. The executive secretary may appoint a board member to assist in the investigation.

Source: 38 SDR 127, effective February 7, 2012; 43 SDR 57, effective October 20, 2016.

General Authority: SDCL 36-4-35, 36-4A-42, 36-4B-35, 36-9B-7, 36-10-36, 36-10B-3, 36-29-17, 36-31-13, 36-36-12.

Rule 20:78:04:04 Completion of complaint investigation.

20:78:04:04. Completion of complaint investigation. Upon completion of a complaint investigation, the executive secretary may:

(1) Dismiss the complaint as unsubstantiated or requiring no further action. Dismissal of a complaint is not a public record;

(2) Issue a letter of concern, which shall be placed in the licensee's permanent records. A letter of concern is not a public record;

(3) Recommend the board issue the licensee a public reprimand;

(4) Recommend the board re-open and modify the license to include compliance with specified terms and conditions;

(5) Recommend the board suspend or revoke the license.

If the executive secretary recommends issuance of a public reprimand, re-opening and modification, or suspension or revocation of the license, permit, or certificate held by the licensee, the executive secretary shall notify the licensee of the right to contest the recommendation. If contested, the executive secretary shall issue a petition for hearing that sets out the recommendation and the reasons for the recommendation and initiates a contested case hearing. A copy of the petition for hearing shall be sent to the licensee. The executive secretary and licensee may enter into a settlement agreement concerning the recommendation to be made to the board.

Source: 38 SDR 127, effective February 7, 2012; 43 SDR 57, effective October 20, 2016.

General Authority: SDCL 36-4-35, 36-4A-42, 36-4B-35, 36-9B-7, 36-10-36, 36-10B-3, 36-29-17, 36-31-13, 36-36-12.

Law Implemented: SDCL 36-4-18, 36-4-20.2, 36-4-20.7, 36-4-20.10, 36-4-27, 36-4-28, 36-4-29, 36-4-30, 36-4-31.6, 36-4-32, 36-4A-8, 36-4A-8.1, 36-4A-37, 36-4A-38, 36-4A-39, 36-4A-40, 36-4B-6, 36-4B-13, 36-4B-28, 36-4B-31, 36-4B-32, 36-4B-33, 36-9B-8, 36-10-27, 36-10-28, 36-10-29, 36-10-35.1, 36-10-35.2, 36-10-38, 36-10-39, 36-10-40, 36-10-41, 36-10-44, 36-10-45, 36-10-46, 36-10-49, 36-10B-6, 36-10B-7, 36-10B-10, 36-10B-13, 36-10B-14, 36-29-3, 36-29-3.1, 36-29-7, 36-29-18, 36-29-19, 36-29-20, 36-29-21, 36-29-22, 36-29-25, 36-29-26, 36-29-27, 36-31-5, 36-31-6, 36-31-9, 36-31-10, 36-31-14, 36-31-15, 36-31-16, 36-31-17, 36-31-18, 36-31-21, 36-31-22, 36-36-5, 36-36-6, 36-36-9, 36-36-13.

Rule 20:78:04:04.01 Disciplinary action in another state.

20:78:04:04.01. Disciplinary action in another state. Any physician who has had any public disciplinary action imposed by another state shall have the original documentation posted on the South Dakota Board of Medical and Osteopathic Examiners website, subject to the following conditions:

(1) If a physician has disciplinary action imposed by another state, the board may review and consider the timeframe and underlying facts and circumstances of the out-of-state discipline to determine if the refusal to grant any license or certification in South Dakota is appropriate under SDCL chapter 36-4, or whether disciplinary action in South Dakota is appropriate under SDCL chapter 36-4;

(2) If any physician has disciplinary action imposed by another state and that action does not impose any conditions on the physician's license from the state, the documents regarding the out-of-state action may be posted to the board's website in lieu of the board taking formal disciplinary action. This is not a reportable event by the board; and

(3) Any disciplinary action imposed by another state that imposes any conditions upon the physician's license from that state may be considered unprofessional conduct pursuant to SDCL subdivision 36-4-30(24) and subjects the physician to disciplinary action in South Dakota.

Source: 44 SDR 95, effective December 7, 2017.

General Authority: SDCL 36-4-35.

Law Implemented: SDCL 36-4-30(24).

Rule 20:78:04:05 Status of complainant.

20:78:04:05. Status of complainant. The complainant is not a party to any contested case hearing resulting from the executive secretary's investigation of a complaint, although the complainant may be called as a witness in the hearing. The executive secretary shall notify a complainant of any public final agency action taken as a result of a complaint.

Source: 38 SDR 127, effective February 7, 2012; 43 SDR 57, effective October 20, 2016.

General Authority: SDCL 36-4-35, 36-4A-42, 36-4B-35, 36-9B-7, 36-10-36, 36-10B-3, 36-29-17, 36-31-13, 36-36-12.

Rule 20:78:04:06 Effect of failure to renew during investigation.

20:78:04:06. Effect of failure to renew during investigation. The holder of a license, permit, or certificate may choose not to renew the license, permit, or certificate after a complaint investigation has been initiated by the executive secretary. A failure to renew after investigation has been initiated shall be reported as "withdrawn under investigation" in the board's permanent license files and in any national databases to which the board is required to report licensure action.

Source: 38 SDR 127, effective February 7, 2012; 43 SDR 57, effective October 20, 2016.

General Authority: SDCL 36-4-35, 36-4A-42, 36-4B-35, 36-9B-7, 36-10-36, 36-10B-3, 36-29-17, 36-31-13, 36-36-12.

Law Implemented: SDCL 36-4-18, 36-4-20.2, 36-4-20.7, 36-4-20.10, 36-4-27, 36-4-28, 36-4-29, 36-4-30, 36-4-31.6, 36-4-32, 36-4A-8, 36-4A-8.1, 36-4A-37, 36-4A-38, 36-4A-39, 36-4A-40, 36-4B-6, 36-4B-13, 36-4B-28, 36-4B-31, 36-4B-32, 36-4B-33, 36-9B-4, 36-9B-8, 36-10-27, 36-10-28, 36-10-29, 36-10-35.1, 36-10-35.2, 36-10-38, 36-10-39, 36-10-40, 36-10-41, 36-10-44, 36-10-45, 36-10-46, 36-10-49, 36-10B-6, 36-10B-7, 36-10B-10, 36-10B-13, 36-10B-14, 36-29-3, 36-29-3.1, 36-29-7, 36-29-18, 36-29-19, 36-29-20, 36-29-21, 36-29-22, 36-29-25, 36-29-26, 36-29-27, 36-31-5, 36-31-6, 36-31-9, 36-31-10, 36-31-14, 36-31-15, 36-31-16, 36-31-17, 36-31-18, 36-31-21, 36-31-22, 36-36-5, 36-36-6, 36-36-9, 36-36-13.

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