OCCUPATIONS AND PROFESSIONS
MENTAL HEALTH PRACTICE
330-A:28 Investigations and Complaints.
I. The board shall investigate possible misconduct by licensees and other matters within the scope of this chapter. Investigations may be conducted formally, after issuance of a board order setting forth the general scope of the investigation, or informally, after a board vote to seek additional information, without such an order. In either case, information gathered subsequent to the initiation of and during such investigations shall be exempt from the public disclosure provisions of RSA 91-A, except to the extent such information may later become the subject of a public disciplinary hearing. The existence of a complaint and status of the investigation, without disclosing the identity of those involved, shall be subject to the disclosure provisions of RSA 91-A. The board may disclose information acquired in an investigation to law enforcement only if it involves suspected criminal activity, to health licensing agencies in this state or any other jurisdiction if the licensee has or is seeking additional licenses, or as required by specific statutory requirements or court orders. A licensee under this chapter shall be promptly informed of the nature and scope of any pending investigation.
I-a. Any board member who has had a personal relationship or has worked in a professional capacity with a complainant or with a licensee against whom a complaint has been filed or whose personal or professional views regarding the licensee or the complainant could prevent the board member from being impartial in considering the complaint shall recuse himself or herself from any investigation or disciplinary action against such licensee. If the chairperson of the board is recused the remaining board members shall elect an acting chairperson from among the board. The chairperson or acting chairperson shall appoint a former board member or a member from the appropriate advisory committee to replace the recused board member during the investigation and proceedings against the licensee. The replacement board member shall be from the same mental health discipline as the recused member.
II. After determining the nature and scope of an investigation or hearing, the board may employ or retain hearing officers, legal counsel, medical advisors, mental health advisors, or investigators through the office of professional licensure and certification to assist with that investigation or hearing. Members of the board are not eligible for retention.
III. The form taken by an investigation is a matter reserved to the discretion of the board. The board may, with just cause, conduct investigations on an ex parte basis only if there is an imminent danger to life or health of a client.
IV. (a) The board or its designee may administer oaths or affirmations, preserve testimony, and issue subpoenas for witnesses and for documents and objects only in a formal investigation or an adjudicatory hearing, except that subpoenas for mental health records as provided in paragraph V may be issued at any time.
(b) The board may serve a subpoena on a licensee by certified mail in accordance with the procedures and fee schedules used in superior court.
(c) Any subpoena related to appearance at a hearing or investigatory proceeding issued by the board shall be annotated "Fees Guaranteed by the New Hampshire Board of Mental Health Practice" in order to be valid.
(d) A minimum of 48 hours' notice shall be given for compliance with a subpoena issued under this chapter.
V. Subject to the limitations of RSA 330-A:32, and this section, the board may, with just cause and at any time, subpoena copies of mental health records from its licensees and from hospitals and other health care providers licensed in this state. Such subpoenas shall be served by certified mail or by personal delivery. A minimum of 15 days' advance notice shall be allowed for complying with a subpoena duces tecum issued under this section. The board shall obtain, handle, archive, and destroy mental health records as follows:
(a) In the event that the client/patient owning the privilege is the person who has made the allegations against the licensee, the board may access the records of such client/patient. The allegation statement form provided by the board and initial follow up correspondence shall clearly indicate that the making of allegations of misconduct by a client/patient who is the owner of the privilege shall override the privacy of that record for the purpose of the board's confidential investigations and proceedings. The client/patient's identity, however, shall not be disclosed to the public in any manner or in any proceeding of the board without his or her consent. In the event that the client/patient named in the complaint is a child, the legitimate assertion of the privilege by one natural or adoptive parent or legal guardian is sufficient for this paragraph to apply. The board may act on that parent or guardian's initiation of complaint regardless of the objection of the other parent or guardian.
(b) In the event that the person who has made the allegations against the licensee is not the owner of the privilege for the records of the client/patient named in the complaint whose treatment is under investigation by the board, the records for an investigation shall be treated as follows:
(1) When the board reviews the initial allegations and upon all further reviews of the case by the board, the identity of the named client/patient shall be redacted from the documents reviewed by the board.
(2) Upon issuance by the board of an order of investigation and prior to the assignment of the case to the investigation team, the name of the client/patient under this subparagraph shall be provided to the immediate investigation team in order to determine the need for recusal of those members before accepting the assignment in a manner as described in subparagraph (g).
(3) The record of a client/patient under this subparagraph that has been specifically named in the complaint may be obtained by the board's investigation team as specified:
(A) The board may order its administrator or investigator to request permission from the client/patient to obtain the record for the investigation, informing the client/patient about the bounds of confidentiality of such records and the nature of the investigation process. If the client/patient grants permission, the board may obtain the copies of the record from the licensee.
(B) If the client/patient denies permission for access to the record, or if the board chooses to omit the request for permission, the procedures of subparagraphs (c)(4), (5), (6), and (8) shall apply to the handling of those records and requests for interviews.
(4) Personally identifiable information pertaining to a client/patient under this subparagraph shall remain known only to the immediate investigation team assigned to the case, which may include an administrative prosecution unit attorney, a professional conduct investigator, the board administrator, and only those additional investigative assistants as the immediate investigation team deems necessary to accomplish the investigation of the case.
(5) All communication beyond the immediate investigation team, with the professional conduct committee, consultants, or the board, pertaining to these clients/patients shall be conducted without the use of personally identifiable information.
(6) At the conclusion of the investigation and prior to review of the report of investigation, the identity of the client/patient under subparagraph (b) shall be disclosed to members of the board to determine the need for recusal of its members as described in subparagraph (g) of this section.
(7) The identity of a client/patient defined in subparagraph (b) shall not be disclosed to the public in any manner or in any proceeding of the board without his or her consent.
(c) Records of client/patients who are not named in the initial allegations shall be treated as follows:
(1) If the investigation team wishes to obtain records of, or contact, clients/patients not named in the original order of investigation, the investigation team shall make its request to the board with reasons for the request, shall specify the scope of cases and types of records requested, and shall state the name of the individual authorized to contact any client/patient.
(2) Upon issuance of an order of investigation by the board pertaining to treatment of patients defined in this subparagraph, the names of the clients/patients that fulfill the criteria of selection may be made available to the immediate investigation team for purposes of determining whether recusal issues pertain to their selection for the investigation as described in subparagraph (g).
(3) If the board orders investigation into client/patient cases who are not named in the original allegations, it shall specify whether these clients/patients may be contacted directly by the investigation team.
(4) For records requested under this subparagraph, a licensee shall be instructed to provide records that are redacted of personally identifiable information as specified in subparagraph (f). Each record shall be marked with an identifying code and the licensee shall provide to the board administrator the contact information for corresponding clients/patients.
(5) The board administrator shall separately store in a secure manner the list of these client/patient codes with corresponding contact information.
(6) In the event the investigation team has just cause to verify its redacted copies against originals of the records of specified cases, it shall request permission of the board giving reason for its request. If the board grants permission, the investigation team may have access to the identified records. Originals of the records may be viewed at a time and location determined by the investigation team. The investigation team may request a copy of the identified original records be sent to the immediate investigation team. The investigation team may then proceed to review the original or copies of the identified records in comparison with the redacted copies to ascertain their completeness and accuracy. Copies and corrections to the redacted records may be made by the investigation team, after which any identified copies in the possession of the investigation team shall be destroyed and original records returned to the licensee.
(7) When permission has been granted by the board pursuant to subparagraph (c)(1) to contact clients/patients pertaining to this subparagraph, access to the contact information is limited to the professional conduct investigators and administrative prosecution unit attorneys assigned to the case, the administrative clerk who manages the confidential files of the case, and any assistants specifically approved by the board for contact.
(8) The member of the immediate investigation team making contact with clients/patients pursuant to subparagraph (c)(1), shall request permission from the clients/patients to conduct an interview and shall include an explanation that they may grant or refuse permission for such interview and that there are no adverse personal consequences of any kind for refusal to grant permission or for withdrawing permission at any time in the process. The investigation team member may inform the clients/patients that refusal to participate may prevent the investigation to proceed or reach a conclusion. The investigation team member shall predicate continuation of the interview on the client/patient's agreement to a confidentiality agreement concerning the licensee and the existence of the investigation.
(9) At the conclusion of the investigation and prior to review of the report of investigation, the identity of the client/patient under this paragraph shall be disclosed to members of the board to determine the need for recusal of its members as described in subparagraph (g).
(10) The identity of each client/patient shall be redacted by the administrator or investigation team from any documents reviewed by the board.
(11) The identity of a client/patient defined in this subparagraph shall not be disclosed to the public in any manner or in any proceeding of the board without his or her consent.
(d) The mental health records obtained through subparagraphs (a), (b), and (c) shall, if archived, be treated as follows:
(1) At or before the conclusion of the licensee investigation case, including all disciplinary action and completion, remediation and sanctions ordered and completed, and completion of all appeals, and appeal periods, the client/patient records shall be reduced to those clients/patients and sections of records that had been included in the prosecution, defense, deliberation, and determination of the case. Client/patient materials not pertinent to the above shall be destroyed;
(2) Materials retained in subparagraph (d)(1) pertaining to clients/patients other than the complainant shall be redacted of all personally identifiable information; and
(3) The identification and contact information collected during the investigation for clients/patients other than the complainant shall be destroyed prior to archiving.
(e) The archived mental health records shall be destroyed according to the attorney general's archive destruction schedule.
(f) For the purposes of this paragraph:
(1) "Record" means health information collected from or about an individual that:
(A) Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and
(B) Relates to the individual, the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual.
(2) "Personally identifiable information" means information which identifies an individual or which a reasonable person would believe can be used to identify an individual, which includes common and uncommon identifiers, including but not limited to name, address, birth date, social security number, court docket number, insurance policy number, and any other identifiers of an individual and of the individual's known relatives, household members, and employers that a reasonable person would believe could identify the individual to whom the record pertains.
(g) In the process of determining recusal, the security of the client/patient's identity shall be preserved, as follows:
(1) Before engaging in any cases as defined in subparagraph (a), board members, investigators, and others as specified in this paragraph with access to case files shall first review the name of the client/patient before proceeding with the case. If a conflict of interest is revealed, that person shall recuse himself or herself from the case.
(2) Before engaging in any cases defined in subparagraph (b), the immediate investigation team members at the onset of investigation, board members at the time of reviewing the findings of the formal investigation, and any others authorized in this paragraph to have access to the case prior to commencing review of such cases shall first determine if there is a need for recusal. The name and town of the client/patient shall be embedded in a list of at least 12 other names and towns prepared by the board administrator. The list shall be reviewed by the team member in the presence of the board administrator. Telephonic review is permitted. The member shall not retain a written record of the list. The member shall indicate which if any names would present reasons for recusal for that member. If the names indicated by the member do not include the client/patient as known to the administrator, then the member shall be permitted to participate in the case.
(3) If a client/patient as defined in subparagraphs (b) or (c) testifies or intends to attend the hearing of the case involving his or her treatment, in which the board may see the client/patient inadvertently or directly, the client/patient's name shall be revealed to the board members so that they may have the opportunity to recuse themselves prior to the proceeding, and the client/patient shall be informed beforehand of such disclosure.
(4) For recusal issues pertaining to clients/patients selected under paragraph (c) of this section, the investigation team shall review the names of the clients/patients who qualify for the scope of investigation as defined in the order by the board, after which team members shall determine if recusal issues occur. The names and towns of the selected clients/patients shall be embedded in a list containing at least 25 percent other names and towns prepared by the board administrator. The list shall be reviewed by the team member in the presence of the board administrator. Telephonic review is permitted. The member shall not retain a written record of the list. Each member shall indicate which if any names would present reasons for recusal for that member. If the names indicated by the member do not include the clients/patients as known to the administrator, then the member shall be permitted to participate in the case. If a case presents a recusal issue, then the investigation team shall either disqualify clients/patients from the list or shall disqualify the team member from handling those cases, as the expeditious handing of the investigation and the interests of justice require.
(5) When board members review the reports of investigations that include case information pertaining to clients/patients as defined in subparagraph (c), they shall review their names prior to reading such reports in the following manner:
(A) If there are 10 or fewer cases with individual clinical information presented, then the methods of testing for recusal shall follow the recusal procedures of subparagraph (g)(2).
(B) When the report includes clinical information pertaining to more than ten cases, then the recusal methods of subparagraph (g)(4) shall apply.
(C) When such clients'/patients' information is presented only in aggregate form, no recusal is required.
(h) Testimony by clients/patients shall be handled with utmost regard for their privacy and protection of their identity from public disclosure.
(1) A client/patient as defined under subparagraphs (b) or (c) shall not be compelled to testify at a board hearing.
(2) If a client/patient as defined in subparagraphs (b) or (c) testifies at a hearing, his or her identity shall be screened from the public view and knowledge, although the respondent and attorneys shall be within the view of the client/patient. The board may view the client/patient. The public's access to the view or information that would identify the client/patient shall be restricted. At the board's discretion, the hearing may be closed to the public for the duration of the client/patient's testimony.
(3) If a client/patient who is party to the complaint requests such privacy safeguards as in subparagraph (h)(2), the accommodations of that subparagraph may likewise be made at the discretion of the board.
(i) Licensees shall comply with board requests for client/patient records and all redaction requirements specified under this section. Failure to comply with lawful requests of the board under this section may subject the licensee to discipline as the board may determine.
VI. All licensees shall have the duty to notify the board of their current business and residence addresses, and shall notify the board of any change to either address within 30 days of the change.
VII. Except for good cause shown, the board shall mail a copy of any allegations of misconduct to any licensee who is the subject of the allegation. Allegations that do not rise to the level of complaint shall not require a response from the licensee. In the case of allegations meeting the level of complaint, licensees shall provide a detailed and good faith written response as directed by the board. The licensee shall provide complete copies of the licensee's office records concerning any client identified in the complaint pursuant to RSA 330-A:28, V. The licensee shall respond to such request within a reasonable time period of not less than 30 days, as the board shall specify in its written request. The detailed complaint and licensee's response shall be exempt from disclosure under RSA 91-A unless the licensee successfully petitions the board to make them available pursuant to RSA 91-A:4.
VIII. Any person may file a written complaint, as described in RSA 330-A:27, I, with the board which charges that a person licensed under this chapter has committed misconduct. The board may dismiss complaints when the undisputed allegations do not warrant disciplinary actions and may settle complaints informally with the consent of the licensee. Some or all of the allegations in a complaint may be consolidated with another complaint or with issues which the board chooses to investigate or hear on its own motion. If an investigation of a complaint results in an offer of settlement by the licensee, the board may settle the allegations against the licensee without the consent of a complainant, provided that the complainant is given an opportunity to comment on the terms of the proposed settlement. Prior to the settlement or other negotiated termination of proceedings, the board shall provide the licensee with a summary of the investigation, which shall include an overview of the evidence, including incriminating and exculpatory elements.
IX. Notwithstanding any other provisions of this chapter, if an allegation of professional misconduct arises in the course of a court-ordered evaluation against a mental health practitioner under this chapter, the board shall not make the determination of a complaint concerning any allegation of professional misconduct, or proceed with the formal investigation of, or prosecution against, the mental health practitioner unless the court has first determined, after a closed hearing conducted on the allegation, that a substantial basis exists to refer the allegation to the board for its consideration. Such closed hearing shall be given priority on the court's calendar and the allegation shall be considered confidential. After any determination has been made, the court shall then order the allegation be placed under seal and remain confidential. If the court fails to make a determination under this paragraph by the time of the final disposition of the case, the board may proceed with a determination on the allegation. Provided, however, that an exception to the court review of the allegation under this paragraph shall exist if:
(a) The board in its preliminary review of the allegation considers that gross misconduct may have occurred or that client/patient safety may be in jeopardy; or
(b) The licensee has affirmatively waived the court's review of the allegation.
X. Except as otherwise provided in this chapter, including RSA 330-A:28, VII, the existence of an allegation of misconduct shall be confidential and shall not be required to be reported by the licensee to any person. Insurance carriers and certifying bodies shall be prohibited from asking about the existence of such allegations and shall not hold the existence of such allegations in this chapter against the licensee in any way including but not limited to denial of any professional privileges, or increased costs, fees, or charges.
Source. 1998, 234:1. 2005, 151:3. 2006, 168:9, 10. 2010, 368:16. 2011, 231:8. 2012, 269:7-10. 2015, 276:84, eff. July 1, 2015.