Section 34-24-360

Restrictions, etc., on license; grounds.

The Medical Licensure Commission shall have the power and duty to suspend, revoke, or restrict any license to practice medicine or osteopathy in the State of Alabama or place on probation or fine any licensee whenever the licensee shall be found guilty on the basis of substantial evidence of any of the following acts or offenses:

(1) Fraud in applying for or procuring a certificate of qualification to practice medicine or osteopathy or a license to practice medicine or osteopathy in the State of Alabama.

(2) Unprofessional conduct as defined herein or in the rules and regulations promulgated by the commission.

(3) Practicing medicine or osteopathy in such a manner as to endanger the health of the patients of the practitioner.

(4) Conviction of a felony; a copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence.

(5) Conviction of any crime or offense which reflects the inability of the practitioner to practice medicine or osteopathy with due regard for the health or safety of his or her patients; a copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence.

(6) Conviction for any violation of a federal or state law relating to controlled substances; a copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence.

(7) Use of any untruthful or deceptive or improbable statements concerning the licensee's qualifications or the effects or results of his or her proposed treatment.

(8) Distribution by prescribing, dispensing, furnishing, or supplying of controlled substances to any person or patient for any reason other than a legitimate medical purpose.

(9) Gross malpractice or repeated malpractice or gross negligence in the practice of medicine or osteopathy.

(10) Division of fees or agreement to split or divide the fees received for professional services with any person for bringing or referring a patient.

(11) Performance of unnecessary diagnostic tests or medical or surgical services.

(12) Charging fees determined by the commission to be grossly excessive or intentionally filing or causing to be filed false or fraudulent claims, as defined by the commission, for medical or surgical services to any private or government third party payor having a legal or contractual obligation to pay such claims on behalf of a patient.

(13) Aiding or abetting the practice of medicine by any person not licensed by the commission.

(14) Conviction of fraud in filing Medicare or Medicaid claims or conviction of fraud in filing claims to any third party payor; a copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence.

(15) Any disciplinary action taken by another state against a licensee to practice medicine or osteopathy, based upon acts by the licensee similar to acts described in this section; a certified copy of the record of the disciplinary action of the state making such an action is conclusive evidence thereof.

(16) Refusal to appear before the State Board of Medical Examiners after having been formally requested to do so in writing by the executive director of the board.

(17) Making any fraudulent or untrue statement to the commission or to the State Board of Medical Examiners.

(18) The termination, revocation, probation, restriction, denial, failure to renew, suspension, reduction, or resignation of staff privileges of a licensee by a hospital in this or any other state when such action is related to negligence or incompetence in the practice of medicine, moral turpitude, sexual misconduct, abusive or disruptive behavior, or drug or alcohol abuse.

(19)a. Being unable to practice medicine or osteopathy with reasonable skill and safety to patients by reason of illness, inebriation, excessive use of drugs, narcotics, alcohol, chemicals, or any other substance, or as a result of any mental or physical condition.

b. When the issue is whether or not a doctor is physically or mentally capable of practicing medicine or osteopathy with reasonable skill and safety to patients, then, upon a showing of probable cause to the board or commission that the doctor is not capable of practicing medicine or osteopathy with reasonable skill and safety to patients, the board or commission may order and direct the doctor in question to submit to either a physical, mental, or laboratory examination or any combination of such examinations to be performed by a physician or osteopath designated by the board. The expense of such examination shall be borne by the physician or osteopath who is so examined.

c. Every physician licensed to practice medicine or osteopathy in the State of Alabama who accepts the privilege of practicing medicine or osteopathy in the State of Alabama by actually practicing or by the making and filing of an annual registration to practice medicine shall be deemed to have given his or her consent to submit to a mental, physical, or laboratory examination or to any combination of such examinations and to waive all objections to the admissibility of the examining physician's testimony or examination reports on the ground that they constitute privileged doctor-patient communications.

d. Upon receipt of credible information that a physician or osteopath in this state has been evaluated or has received inpatient or outpatient treatment for any physical, psychiatric, or psychological illness or for chemical dependency, drug addiction, or alcohol abuse the board may order that the physician execute and deliver to the board an authorization and release form directed to each and every facility or treatment provider authorizing and directing the release to the board of any reports of evaluation, mental or physical, or examination, including psychiatric, psychological, and neuropsychiatric examinations, hospital and treatment provider medical records, reports of laboratory tests for the presence of alcohol or drugs, rehabilitation records or mental competency evaluations. Any and all expenses incurred in the furnishing of the reports, records, or documents which are the subject of an order issued by the board shall be borne by the physician or osteopath who is the subject of the order.

e. Failure or refusal by the physician or osteopath to comply with an order of the board directing the execution and delivery to the board of an authorization and release form as provided in paragraph d. above shall constitute grounds for the summary suspension of the physician's or osteopath's license to practice medicine by the Medical Licensure Commission, which suspension shall continue in effect until such time as the physician or osteopath complies with the order of the board or the order is withdrawn by the board or the order is terminated by the Medical Licensure Commission after a hearing. The provisions of this subsection supersede any provisions of subsection (d) of Section 41-22-19 of the Alabama Administrative Procedure Act that are in conflict.

f. All reports, records, and documents released to the board under the provisions of paragraph d. above are hereby declared to be privileged and confidential and shall not be public records nor available for court subpoena or for discovery proceedings but may be used by the board in the course of its investigations and may be introduced as evidence in administrative hearings conducted by the board or by the Medical Licensure Commission.

Nothing contained herein shall apply to records made in the regular course of business of an individual; documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil proceedings merely because they were presented or considered during the proceedings of the State Board of Medical Examiners or the Medical Licensure Commission.

g. A physician or osteopath whose license to practice medicine has been suspended by the Medical Licensure Commission under the authority of paragraph e. above may obtain judicial review in accordance with Sections 41-22-20 and 34-24-367.

(20)a. Being unable to practice medicine or osteopathy with reasonable skill and safety to patients by reason of a demonstrated lack of basic medical knowledge or clinical competency.

b. When the issue is whether or not a physician or osteopath has demonstrated a lack of basic medical knowledge or clinical competency then, upon a showing of probable cause to the board that the physician or osteopath is not presently capable of practicing medicine or osteopathy with reasonable skill and safety to patients, the board may order and direct that the physician or osteopath in question submit to a test of medical knowledge as designated by the board or to an evaluation of clinical competency by such means as directed by the board or to any combination of such examinations or evaluations, to be performed by or under the direction of a testing, evaluation, or examination facility or provider approved by the board. The expense of such examinations and evaluations shall be borne by the physician or osteopath who is examined or evaluated.

c. Failure or refusal by a physician or osteopath to comply with an order of the board issued pursuant to paragraph b. above shall constitute grounds for the summary suspension of the physician's or osteopath's license to practice medicine by the Medical Licensure Commission, which suspension shall continue in effect until such time as the physician or osteopath complies with the order of the board or the order is withdrawn by the board or the order is terminated by the Medical Licensure Commission after a hearing. The provisions of this subsection supersede any provisions of subsection (d) of Section 41-22-19 of the Alabama Administrative Procedure Act that are in conflict.

d. A physician or osteopath whose license to practice medicine has been summarily suspended by the Medical Licensure Commission under the authority of paragraph c. above may obtain judicial review in accordance with Sections 41-22-20 and 34-24-367.

e. In the event that an examination or evaluation ordered by the board under the authority of paragraph b. above demonstrates that the physician or osteopath lacks basic medical knowledge or clinical training sufficient to engage in the practice of medicine with reasonable skill and safety to patients, then the board may order that a restriction be placed upon the certificate of qualification and license to practice medicine of the physician or osteopath which restriction may require:

1. The medical practice of the physician or osteopath in question be limited or restricted in a manner consistent with the findings of the examination or evaluation.

2. That the physician or osteopath successfully complete a course or courses of remedial education or clinical training as directed by the board.

3. That the physician or osteopath successfully pass or complete an examination of basic medical knowledge or clinical competency as designated by the board.

4. Any combination of the foregoing.

The expense of any of the examinations, evaluations, and educational or training courses which are the subject of a restriction imposed by the board on the certificate of qualification and license to practice medicine shall be borne by the physician or osteopath in question. A physician or osteopath whose certificate of qualification and license to practice medicine has been restricted by the board under the authority of this section may request a hearing before the Medical Licensure Commission of Alabama. At such hearing it shall be the burden of the board to demonstrate to the reasonable satisfaction of the commission that the restriction or restrictions are consistent with the findings of the examination or evaluation ordered by the board. All hearings before the Medical Licensure Commission shall be conducted on an expedited basis and any restricting or restrictions shall not be stayed by the commission during the pendency of the hearing. The Medical Licensure Commission may consider, in any hearing resulting from a decision of the board to impose a restriction or restrictions on the certificate of qualification and license to practice medicine of the physician or osteopath in question, the results of all examinations or evaluations of basic medical knowledge or clinical competency upon which the board relied and such other evidence as the commission deems relevant to the issues presented. In rendering a decision, the Medical Licensure Commission is authorized to affirm the restriction or restrictions, modify the restriction or restrictions, or order the removal of the restriction or restrictions imposed by the board.

f. A physician or osteopath adversely affected by a decision of the Medical Licensure Commission resulting from a hearing under the preceding paragraph e. may obtain judicial review in accordance with Sections 41-22-20 and 34-24-367.

g. The Medical Licensure Commission may, within its discretion, revoke or suspend the license to practice medicine of a physician or osteopath who fails to abide by or violates a restriction imposed by the board on the certificate of qualification and license to practice medicine of the physician or osteopath in question, or may impose administrative fines or other penalties as authorized by Section 34-24-361 and Section 34-24-381.

(21) Excessive prescribing, dispensing, furnishing, or supplying of a Schedule II controlled substance. A physician or osteopath violates this subdivision if he or she prescribes, orders, dispenses, administers, supplies, or otherwise distributes any Schedule II amphetamine or Schedule II amphetamine like anorectic drug or Schedule II sympathomimetic amine drug or compound thereof, or any salt, compound, isomer, derivative, or preparation of the foregoing which are chemically equivalent thereto, or other nonnarcotic Schedule II stimulant drug, which drugs or compounds are classified under Schedule II of the Alabama Uniform Controlled Substances Act, Section 20-2-24, to any person except for the therapeutic treatment of:

a. Narcolepsy.

b. Hyperkinesis.

c. Brain dysfunction of sufficiently specific diagnosis, or etiology which clearly indicates the need for these substances in treatment or control.

d. Epilepsy.

e. Differential psychiatric evaluation of clinically significant depression; provided however, that such treatment shall not extend beyond a period of 30 days unless the patient is referred to a licensed practitioner specializing in the treatment of depression.

f.1. Clinically significant depression shown to be refractory to other therapeutic modalities; provided however, that such treatment shall not extend beyond a period of 30 days unless the patient is referred to a licensed practitioner specializing in the treatment of depression; or for the clinical investigation of the effects of such drugs or compounds in which case an investigative protocol must be submitted to and reviewed and approved by the State Board of Medical Examiners before the investigation has begun.

2. A physician prescribing, ordering, or otherwise distributing the controlled substances listed above in the manner permitted by this subdivision shall maintain a complete record which must include documentation of the diagnosis and reason for prescribing, the name, dose, strength, and quantity of the drug, and the date prescribed or distributed. The records required under this subparagraph shall be made available for inspection by the certifying board or its authorized representative upon request. Those Schedule II stimulant drugs enumerated above shall not be dispensed or prescribed for the treatment or control of exogenous obesity.

(22) Failure to maintain for a patient a medical record which meets the minimum standards stated in the rules and regulations promulgated by the commission.

(23) Failure to comply with any rule of the Board of Medical Examiners or Medical Licensure Commission.

(Acts 1981, No. 81-218, p. 273, §19; Acts 1983, 4th Ex. Sess., No. 83-890, p. 121, §3; Acts 1987, No. 87-389, p. 555, §1; Act 2002-140, p. 359, §3; Act 2007-402, p. 807, §1.)