ARSD Article 20:78 — BOARD OF MEDICAL AND OSTEOPATHIC EXAMINERS

HEALTH HEALTH

Chapter 20:78:01 Operation of board

ARSD 20:78:01:01 Election of officers

The board shall elect officers at the May or June meeting.

History

• Source: SL 1975, ch 16, § 1; repealed, 12 SDR 151, 12 SDR 155, effective July 1, 1986; readopted, 13 SDR 9, effective August 4, 1986; transferred from § 20:47:02:02, 38 SDR 127, effective February 7, 2012.
• General Authority: SDCL 36-4-35.
• Law Implemented: SDCL 36-4-3.

ARSD 20:78:01:02 President

The president is the principal executive officer of the board and, subject to the control of the board, shall supervise the business of the board. The president shall preside at board meetings. The president may sign, with the secretary or another officer authorized by the board, any instruments which the board has authorized to be executed. The president shall perform all duties incident to the office of president and any other duties assigned by the board. The president may appoint an executive secretary subject to confirmation by the board.

History

• Source: SL 1975, ch 16, § 1; repealed, 12 SDR 151, 12 SDR 155, effective July 1, 1986; readopted, 13 SDR 9, effective August 4, 1986; transferred from § 20:47:02:03, 38 SDR 127, effective February 7, 2012.
• General Authority: SDCL 36-4-35.
• Law Implemented: SDCL 36-4-3.

ARSD 20:78:01:03 Vice president

The vice president shall perform the duties of the president when the president is absent, is unable to act, or refuses to act. The vice president shall perform any other duties assigned by the president or by the board.

History

• Source: SL 1975, ch 16, § 1; repealed, 12 SDR 151, 12 SDR 155, effective July 1, 1986; readopted, 13 SDR 9, effective August 4, 1986; transferred from § 20:47:02:04, 38 SDR 127, effective February 7, 2012.
• General Authority: SDCL 36-4-35.
• Law Implemented: SDCL 36-4-3.

ARSD 20:78:01:04 Secretary

The duties of the secretary are as follows:

(1) Keep the minutes of the board meetings in a book provided for that purpose;

(2) Give all notices as required by law;

(3) Be custodian of the board records and of the seal of the board and see that the seal of the board is affixed to documents as authorized by the board;

(4) Keep a register of the post office address of each licensee which is provided to the board by each licensee;

(5) Be responsible for all funds and securities of the board, receive and give receipts for money paid to the board, and deposit all such moneys in the name of the board in the depositories selected by the board;

(6) Sign, with the president or another officer authorized by the board, any instruments which the board has authorized to be executed;

(7) Perform all duties incident to the office of secretary and any other duties assigned by the president or by the board.

The board may require its executive secretary to perform any of the duties of the secretary.

History

• Source: SL 1975, ch 16, § 1; repealed, 12 SDR 151, 12 SDR 155, effective July 1, 1986; readopted, 13 SDR 9, effective August 4, 1986; transferred from § 20:47:02:05, 38 SDR 127, effective February 7, 2012.
• General Authority: SDCL 36-4-35.
• Law Implemented: SDCL 36-4-3, 36-4-5.

ARSD 20:78:01:05 Quorum for conduct of business

A majority of the board constitutes a quorum for the transaction of all business at any regular or special meeting.

History

• Source: SL 1975, ch 16, § 1; repealed, 12 SDR 151, 12 SDR 155, effective July 1, 1986; readopted, 13 SDR 9, effective August 4, 1986; transferred from § 20:47:02:06, 38 SDR 127, effective February 7, 2012.
• General Authority: SDCL 36-4-35.
• Law Implemented: SDCL 36-4-1.

ARSD 20:78:01:06 Special meetings

Special meetings of the board may be called by the president or any three members of the board. Special meetings may also be set by action of the board at any regular or special meeting of the board. The notice of the meeting or action of the board shall establish the time and place for the meeting.

History

• Source: SL 1975, ch 16, § 1; repealed, 12 SDR 151, 12 SDR 155, effective July 1, 1986; readopted, 13 SDR 9, effective August 4, 1986; transferred from § 20:47:02:08, 38 SDR 127, effective February 7, 2012.
• General Authority: SDCL 36-4-35.
• Law Implemented: SDCL 36-4-4.

ARSD 20:78:01:07 Notice of special meetings

At least 10 days notice of a special meeting shall be given to any member of the board not calling the meeting or not in attendance at the meeting at which a special meeting was called. The notice shall state the time and place for the special meeting and whether the meeting is called for the consideration of one or more specific issues or for consideration of all matters that come before the board.

History

• Source: SL 1975, ch 16, § 1; repealed, 12 SDR 151, 12 SDR 155, effective July 1, 1986; readopted, 13 SDR 9, effective August 4, 1986; transferred from § 20:47:02:09, 38 SDR 127, effective February 7, 2012.
• General Authority: SDCL 36-4-35.
• Law Implemented: SDCL 36-4-4.

ARSD 20:78:01:08 Requests for board information

Requests for board information shall be sent in writing to the executive secretary at the office of the board.

History

• Source: SL 1975, ch 16, § 1; repealed, 12 SDR 151, 12 SDR 155, effective July 1, 1986; readopted, 13 SDR 9, effective August 4, 1986; transferred from § 20:47:02:12, 38 SDR 127, effective February 7, 2012.
• General Authority: SDCL 36-4-35.
• Law Implemented: SDCL 1-26-2, 1-26-6.

Chapter 20:78:02 Declaratory rulings

ARSD 20:78:02:01 Petition for declaratory ruling

Any person may file with the board a petition for a declaratory ruling as to the applicability of a statutory provision or a rule or order of the agency. The form is available from the board.

History

• Source: 10 SDR 43, effective November 8, 1983; 12 SDR 151, 12 SDR 155, effective July 1, 1986; transferred from § 20:47:05:01, 38 SDR 127, effective February 7, 2012.
• General Authority: SDCL 36-4-35.
• Law Implemented: SDCL 1-26-15.

ARSD 20:78:02:02 Action by board on petition for declaratory ruling

Upon receipt of a petition for a declaratory ruling, the board may request from the petitioner any additional information it requires for the issuance of a ruling.

The board at its discretion may hold a hearing on the petition for declaratory ruling.

History

• Source: 10 SDR 43, effective November 8, 1983; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 13 SDR 9, effective August 4, 1986; transferred from § 20:47:05:02, 38 SDR 127, effective February 7, 2012.
• General Authority: SDCL 36-4-35.
• Law Implemented: SDCL 1-26-15.

ARSD 20:78:02:03 Disposition of petition

Disposition of the petition for declaratory ruling shall be completed within 90 days after receipt of the petition, within 90 days following receipt of information requested, or within 45 days following a hearing held on the petition.

The board shall mail a copy of the declaratory ruling to the petitioner's last known mailing address within 20 days after making the ruling.

History

• Source: 10 SDR 43, effective November 8, 1983; 12 SDR 151, 12 SDR 155, effective July 1, 1986; transferred from § 20:47:05:03, 38 SDR 127, effective February 7, 2012.
• General Authority: SDCL 36-4-35.
• Law Implemented: SDCL 1-26-15.

Chapter 20:78:03 Application procedures

ARSD 20:78:03:02 Initial review

The executive secretary shall review all license, permit, and certificate applications subject to this chapter to determine if the applicant has submitted all required documents, information, fees, and other materials. The executive secretary shall notify the applicant of any materials missing from the application. The applicant has 120 days to provide the information intended to complete the application.

History

• 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-7, 36-29-17, 36-31-13, 36-36-12.
• Law Implemented: SDCL 36-4-11, 36-4-17, 36-4-20.2, 36-4-20.7, 36-4-20.10 36-4A-8, 36-4A-8.1, 36-4B-6, 36-4B-13, 36-9B-4, 36-10-27, 36-10-28, 36-10-35.1, 36-10B-6, 36-10B-7, 36-10B-10, 36-29-3, 36-29-3.1, 36-31-5, 36-31-6, 36-31-9, 36-36-5, 36-36-9.

ARSD 20:78:03:03 Incomplete application

If an applicant fails to submit required materials within 120 days of notice that materials are missing from the application, the executive secretary shall designate the application as withdrawn, or, upon receiving a written request showing good cause, may allow an applicant additional time to complete the application. The executive secretary shall notify the applicant if an application is designated as withdrawn.

The executive secretary's designation of an application as withdrawn may be appealed to the board by written notice filed with the executive secretary within ten days after notice of withdrawal by the executive secretary. If no timely appeal to the board is filed, the executive secretary's designation of an application as withdrawn remains.

History

• 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-7, 36-29-17, 36-31-13, 36-36-12.
• Law Implemented: SDCL 36-4-11, 36-4-17, 36-4-20.2, 36-4-20.7, 36-4-20.10, 36-4A-8, 36-4A-8.1, 36-4B-6, 36-4B-13, 36-9B-4, 36-10-27, 36-10-28, 36-10-35.1, 36-10B-6, 36-10B-7, 36-10B-10, 36-29-3, 36-29-3.1, 36-31-5, 36-31-6, 36-31-9, 36-36-5, 36-36-9.

ARSD 20:78:03:05 Summary action on application

The executive secretary may summarily deny an application based upon primary source documentation that demonstrates that the applicant has not met the education, examination, training, or certification requirements of applicable statutes and regulations. The executive secretary shall notify the applicant in writing of any summary action taken by the executive secretary. The executive secretary's summary action may be appealed to the board by written notice filed with the executive secretary within ten days after notice of the action taken by the executive secretary. If no timely appeal is filed, the executive secretary's action shall be deemed final board action.

History

• 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-7, 36-29-17, 36-31-13, 36-36-12.
• Law Implemented: SDCL 36-4-11, 36-4-17, 36-4-20.2, 36-4-20.7, 36-4-20.10, 36-4A-8, 36-4A-8.1, 36-4B-6, 36-4B-13, 36-9B-4, 36-10-27, 36-10-28, 36-10-35.1, 36-10B-6, 36-10B-7, 36-10B-10, 36-29-3, 36-29-3.1, 36-31-5, 36-31-6, 36-31-9, 36-36-5, 36-36-9.

ARSD 20:78:03:06 Investigation of application

The executive secretary may determine that the information disclosed in an application or primary source documentation requires investigation to determine whether the applicant meets the qualifications or standards for issuance of a license. The executive secretary shall conduct that investigation, and may appoint a board member to assist in the investigation. The executive secretary shall notify the applicant of any issues requiring investigation. An applicant may meet with the executive secretary and appointed board member to discuss the issues under investigation.

History

• 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-7, 36-29-17, 36-31-13, 36-36-12.
• Law Implemented: SDCL 36-4-11, 36-4-17, 36-4-20.2, 36-4-20.7, 36-4-20.10, 36-4A-8, 36-4A-8.1, 36-4B-6, 36-4B-13, 36-9B-4, 36-10-27, 36-10-28, 36-10-35.1, 36-10-49, 36-10B-6, 36-10B-7, 36-10B-10, 36-29-3, 36-29-3.1, 36-29-26, 36-31-5, 36-31-6, 36-31-9, 36-31-22, 36-36-5, 36-36-9.

ARSD 20:78:03:07 Application withdrawn during investigation

An applicant may withdraw an application after an investigation has been initiated by the executive secretary. An application withdrawn 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.

History

• 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-7, 36-29-17, 36-31-13, 36-36-12.
• Law Implemented: SDCL 36-4-11, 36-4-17, 36-4-20.2, 36-4-20.7, 36-4-20.10, 36-4A-8, 36-4A-8.1, 36-4B-6, 36-4B-13, 36-9B-4, 36-10-27, 36-10-28, 36-10-35.1, 36-10-49, 36-10B-6, 36-10B-7, 36-10B-10, 36-29-3, 36-29-3.1, 36-29-26, 36-31-5, 36-31-6, 36-31-9, 36-31-22, 36-36-5, 36-36-9.

ARSD 20:78:03:08 Executive secretary determinations

Upon completion of the review of an application and any associated investigation, the executive secretary may:

(1) Summarily issue a license, permit, or certificate if the applicant meets the standards and requirements for licensure established by the applicable statutes or regulations;

(2) Recommend the board issue the license, permit, or certificate upon specified terms and conditions; or

(3) Recommend the board deny the license, permit, or certification application.

If the executive secretary recommends issuance of a license, permit, or certificate under specified terms and conditions, or recommends denial of a license, permit, or certificate, the executive secretary shall notify the applicant of the right to contest the executive secretary's recommendation. If contested by the applicant, 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 applicant along with a statement that the applicant 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 and applicant may enter into a settlement agreement concerning the recommendation to be made to the board on the application.

History

• 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-7, 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, 36-4-28, 36-4-30, 36-4-31.6, 36-4A-8, 36-4A-8.1, 36-4A-38, 36-4A-39, 36-4B-6, 36-4B-13, 36-4B-31, 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, 36-10-40, 36-10-41, 36-10B-3, 36-10B-6, 36-10B-7, 36-10B-10, 36-29-3, 36-29-3.1, 36-29-7, 36-29-22, 36-31-5, 36-31-6, 36-31-9, 36-31-10, 36-31-18, 36-36-5, 36-36-6, 36-36-9, 36-36-13.

ARSD 20:78:03:09 Provisional licenses, permits, or certificates issued pursuant to settlement agreement

The executive secretary may enter into a settlement agreement with an applicant that provides for the issuance of a provisional license, permit, or certificate by the executive secretary. A provisional license, permit, or certificate issued by the executive secretary is valid only until the board takes final agency action on the settlement agreement and notice is provided to the applicant. Board approval of the settlement agreement ratifies the action of the executive secretary and the license, permit, or certificate is valid for its term under any specified terms and conditions. Board disapproval of a settlement agreement voids the provisional license, permit, or certificate upon notice to the applicant. If the board disapproves a settlement agreement, the board shall schedule a contested case hearing for final agency action on the application and require the executive secretary to file a petition for hearing.

History

• 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-7, 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, 36-4-28, 36-4-30, 36-4-31.6, 36-4A-8, 36-4A-8.1, 36-4A-38, 36-4A-39, 36-4B-6, 36-4B-13, 36-4B-31, 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, 36-10-40, 36-10-41, 36-10B-3, 36-10B-6, 36-10B-7, 36-10B-10, 36-29-3, 36-29-3.1, 36-29-7, 36-29-22, 36-31-5, 36-31-6, 36-31-9, 36-31-10, 36-31-18, 36-36-5, 36-36-9, 36-36-13.

ARSD 20:78:03:10 Renewals and reinstatement

Renewal and reinstatement applications are subject to the same process as original licenses.

History

• 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-7, 36-29-17, 36-31-13, 36-36-12.
• Law Implemented: SDCL 36-4-11, 36-4-17, 36-4-20.2, 36-4-20.7, 36-4-20.10, 36-4-20.12, 36-4-24.1, 36-4-24.2, 36-4A-8, 36-4A-8.1, 36-4A-31, 36-4A-32, 36-4A-33, 36-4B-6, 36-4B-13, 36-4B-27, 36-4B-28, 36-9B-4, 36-10-27, 36-10-28, 36-10-33, 36-10-35.1, 36-10B-3, 36-10B-6, 36-10B-7, 36-10B-9, 36-10B-10, 36-29-3, 36-29-3.1, 36-29-11, 36-29-15, 36-31-5, 36-31-6, 36-31-9, 36-31-11, 36-31-19, 36-36-5, 36-36-9, 36-36-11, 36-36-14.

ARSD 20:78:03:11 Staff approval of petition for examination waiver

An applicant who has not passed all parts or steps of the examination required by SDCL chapter 36-4 within the time and manner allowed by SDCL 36-4-17 and 36-4-17.1, but is board-certified by a board of the American Board of Medical Specialties, may submit a petition for waiver of the time and manner requirements of SDCL 36-4-17 and 36-4-17.1, as applicable. The executive secretary may approve the petition and issue a provisional license, which license shall be presented to the Board for approval in the next quarterly report.

History

• Source: 40 SDR 129, effective January 20, 2014.
• General Authority: SDCL 36-4-35.
• Law Implemented: SDCL 36-4-11, 36-4-11.1, 36-4-17, 36-4-17.1.

ARSD 20:78:03:12 Reciprocity

An applicant who holds a valid medical license issued by another state may be licensed by reciprocity in South Dakota under the provisions of SDCL 36-4-19 only if the applicant has completed a residency program in the United States or Canada; has passed one of the following licensure examinations within the time and manner required by SDCL 36-4-17 and 36-4-17.1, as applicable: examination administered by any state medical licensing board, the Federal Licensure Examination, National Board of Medical Examiners Endorsement of Certification, Osteopathic Medical Licensing Examination - USA, Licentiate of the Medical Council of Canada, or the United States Medical Licensing Examination; has not had any allegations of misconduct or proceedings instituted for the cancellation, conditioning, suspension or revocation of the applicant's license in any state; and completion of a state and federal criminal background investigation.

History

• Source: 40 SDR 129, effective January 20, 2014.
• General Authority: SDCL 36-4-11, 36-4-35.
• Law Implemented: SDCL 36-4-11, 36-4-11.1, 36-4-12.2, 36-4-17, 36-4-19, 36-4-19.1.

Chapter 20:78:04 Complaint procedures

ARSD 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.

History

• 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.

ARSD 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.

History

• 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.

ARSD 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.

History

• 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.

ARSD 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.

History

• 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.

ARSD 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.

History

• Source: 44 SDR 95, effective December 7, 2017.
• General Authority: SDCL 36-4-35.
• Law Implemented: SDCL 36-4-30(24).

ARSD 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.

History

• 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.

ARSD 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.

History

• 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.

Chapter 20:78:05 Contested case hearing procedures

ARSD 20:78:05:01 Applicability

The following procedure applies to contested case proceedings for license, permit, or certificate applications and to disciplinary proceedings before the Board of Medical and Osteopathic Examiners.

History

• 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.

ARSD 20:78:05:02 Petitions for hearing

An applicant for a license, permit, or certificate issued by the board may file a petition for hearing at any time during the processing of an application. The executive secretary may file a petition for hearing to initiate a disciplinary proceeding against a licensee. A petition for hearing shall be signed by the petitioner and contain the following information: the name and address of the applicant or licensee, the basis for the request for hearing, recitation of the applicable statutes or regulations under which the petitioner is requesting board action, and the relief requested by the petitioner.

History

• 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 36-4-31.6, 36-4A-39, 36-4B-32, 36-9B-8, 36-10-43, 36-10-45, 36-10-46, 36-29-19, 36-29-20, 36-29-21, 36-29-22, 36-31-15, 36-31-16, 36-36-13.

ARSD 20:78:05:03 Filing of petitions for hearing

All petitions for hearing shall be filed with the executive secretary, who shall maintain the record of contested case proceedings held before the board.

History

• 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 36-4-31.6, 36-4A-39, 36-4B-32, 36-9B-8, 36-10-43, 36-10-45, 36-10-46, 36-29-19, 36-29-20, 36-29-21, 36-29-22, 36-31-15, 36-31-16, 36-36-13.

ARSD 20:78:05:04 Scheduling of hearing

Upon receipt of a petition for hearing, the board president may appoint an examiner to conduct the contested case hearing, or may schedule the contested case hearing before the board, as authorized by applicable statutes.

History

• 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 36-4-31.6, 36-4A-39, 36-4B-32, 36-9B-8, 36-10-43, 36-10-45, 36-10-46, 36-29-19, 36-29-20, 36-29-21, 36-29-22, 36-31-15, 36-31-16, 36-36-13.

ARSD 20:78:05:05 Hearing procedure

Contested case hearings shall be conducted in accordance with SDCL 1-26. The parties to a hearing are the executive secretary and the applicant or licensee. A board member who has participated in any investigation of the matter before the board shall disqualify himself from all deliberations and decisions.

History

• 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 36-4-31.6, 36-4A-39, 36-4B-32, 36-9B-8, 36-10-43, 36-10-45, 36-10-46, 36-29-19, 36-29-20, 36-29-21, 36-29-22, 36-31-15, 36-31-16, 36-36-13.

ARSD 20:78:05:06 Final board decision

If the board hears the proceeding itself, it shall issue a final decision and require the parties to submit proposed findings of fact and conclusions of law for consideration at the board's next meeting. If a hearing examiner hears the proceeding, the examiner shall issue a proposed decision including findings of fact and conclusions of law. The examiner shall serve the proposed decision upon the board and the parties. The board may request that the parties appear before it to present oral argument and objections to the examiner's proposed decision. The board shall issue a final decision and accept, reject, or modify the findings, conclusions, and decisions of the examiner.

History

• 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 36-4-31.6, 36-4A-39, 36-4B-32, 36-9B-8, 36-10-43, 36-10-45, 36-10-46, 36-29-19, 36-29-20, 36-29-21, 36-29-22, 36-31-15, 36-31-16, 36-36-13.

ARSD 20:78:05:07 Notice of decision

The board shall issue a notice of decision, accompanied by the final board decision and findings of fact and conclusions of law, to the applicant or licensee and executive secretary.

History

• 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 36-4-31.6, 36-4A-39, 36-4B-32, 36-9B-8, 36-10-43, 36-10-45, 36-10-46, 36-29-19, 36-29-20, 36-29-21, 36-29-22, 36-31-15, 36-31-16, 36-36-13.

ARSD 20:78:05:08 Assessment of costs of disciplinary hearings

The board may assess its costs associated with a contested case proceeding resulting in disciplinary action, against a licensee upon motion by the executive secretary. If requesting the assessment of costs, the executive secretary shall present a statement of costs to the board or hearing examiner at the time it submits proposed findings of fact and conclusions of law.

History

• 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 1-26-29.1.

ARSD 20:78:05:09 Board member conflict of interest

A board member who:

(1) Is personally related to a party involved in a contested case proceeding or disciplinary action by two degrees of consanguinity;

(2) Has a direct financial interest in a party involved in a contested case proceeding or disciplinary action through employment or by contract;

(3) Directly supervises and is responsible for peer review of a party involved in a contested case proceeding or disciplinary action;

(4) Or has a spouse employed by or directly contracts with a party involved in a contested case proceeding or disciplinary action; may not participate in the proceeding or action concerning that party. The member shall make an oral statement of recusal on the record at the initiation of the hearing. A recused member may not participate in board discussions or decision-making regarding that contested case proceeding or disciplinary action.

History

• Source: 41 SDR 180, effective May 21, 2015.
• General Authority: SDCL 36-4-35, 36-4A-42, 36-4B-35, 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, 36-10-38, 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.

ARSD 20:78:05:10 Board member potential conflict of interest

A potential conflict of interest is an indirect financial interest, or a personal relationship or another interest in a party involved in a contested case proceeding or disciplinary action that is different from that of the general public, that a reasonable person would believe might result in bias or prejudgment. A board member shall disclose any potential conflict of interest in a contested case proceeding or disciplinary action on the record at the initiation of the hearing, or during the hearing if the board member becomes aware of the existence of a potential conflict of interest at that time. Upon the board's own motion or the motion of a party, and considering the rule of necessity should maintenance of a quorum be an issue, the board may recuse a member with a potential conflict of interest if it determines that the potential conflict of interest raises an unacceptable risk of bias or prejudgment in the contested case proceeding or disciplinary action.

History

• Source: 41 SDR 180, effective May 21, 2015.
• General Authority: SDCL 36-4-35, 36-4A-42, 36-4B-35, 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, 36-10-38, 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.

Chapter 20:78:06 Opioid overdose prevention

ARSD 20:78:06:01 Definitions

Terms used in this chapter mean:

(1) "Board," the South Dakota Board of Medical and Osteopathic Examiners;

(2) "First responder training," a training program that meets the criteria established by the board in § 20:78:06:02;

(3) "Protocols," a standardized plan for medical procedures or administration of nasal or auto-injector medications;

(4) "Opioid overdose," a medical condition that causes depressed consciousness and mental functioning, decreased movement, depressed respiratory function, and the impairment of vital functions as a result of ingesting opioids in any amount larger than can be physically tolerated;

(5) "Standing order," an ongoing authorization for a first responder to obtain, possess, and administer opioid antagonists.

History

• Source: 42 SDR 98, effective January 7, 2016.
• General Authority: SDCL 34-20A-102
• Law Implemented: SDCL 34-20A-100

ARSD 20:78:06:02 Criteria for training a first responder

Training programs shall meet the following criteria:

Each first responder training program shall include:

(1) The signs and symptoms of an opioid overdose;

(2) The protocols and procedures for administration of an opioid antagonist;

(3) The signs and symptoms of an adverse reaction to an opioid antagonist;

(4) The protocols and procedures to stabilize the patient if an adverse response occurs;

(5) Opioid antagonist duration;

(6) The protocols and procedures for monitoring the suspected opioid overdose victim and re-administration of opioid antagonist if necessary for the safety and security of the suspected overdose victim;

(7) The procedures for storage, transport, and security of the opioid antagonist; and

(8) The method of opioid antagonist administration being taught.

Each first responder training program shall be overseen by a physician licensed pursuant to SDCL chapter 36-4. The employer of a first responder may provide the training for a first responder if the training meets each requirement listed in this section.

A first responder trained to possess and administer opioid antagonists must complete a first responder training program at least every three years.

History

• Source: 42 SDR 98, effective January 7, 2016.
• General Authority: SDCL 34-20A-102
• Law Implemented: SDCL 34-20A-101

ARSD 20:78:06:03 Standing order

A physician licensed under SDCL chapter 36-4 may issue a standing order to a first responder authorizing a prescription for the possession of an opioid antagonist. The standing order:

(l) Authorizes a first responder who has completed a first responder training program to possess and administer opioid antagonists;

(2) Shall specify the method of opioid antagonist administration that is compatible with the education and training of the person administering the antagonist; and

(3) Shall be kept on file by the first responder, the issuing physician, and the first responder's employer.

The standing order expires three years after the date it is issued.

History

• Source: 42 SDR 98, effective January 7, 2016.
• General Authority: SDCL 34-20A-102
• Law Implemented: SDCL 34-20A-98

ARSD 20:78:06:04 Protocols

The issuing physician and the first responder shall each maintain one copy of the issuing physicians' written protocol.

History

• Source: 42 SDR 98, effective January 7, 2016.
• General Authority: SDCL 34-20A-102
• Law Implemented: SDCL 34-20A-101