Chapter 170

(Senate Bill 4)

An Act to revise certain provisions regarding the health professionals assistance program.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That § 36-2A-1 be AMENDED.

36-2A-1. Definitions.

Terms used in this chapter mean:

(1) "Board," a licensing board authorized in title 36;

(2) "Health professionals assistance program," or "program," a confidential program designed to monitor and manage the treatment and continuing care of any regulated a health professional who may be unable to practice with reasonable skill and or safety, or whose practice poses a risk to the public, if the professional's mental health issues or substance use related issue or disorder is not appropriately managed;

(2)(3) "Impaired," the inability of a licensee to practice his or her health-related profession with reasonable skill and or safety, or whose practice poses a risk to the public as a result of unmanaged or undermanaged mental health issues or substance use related disorders issue or disorder;

(3) "Participating board," a health-related licensing board listed in Title 36 which agrees with other health-related licensing boards to jointly conduct a health professionals assistance program. The program is available to participating health-related licensing boards in conjunction with, or as an alternative to, other sanctions which a health-related board may impose upon its licensees pursuant to disciplinary actions within its jurisdiction;

(4) "Program personnel," persons or contracted entities employed by, or contracted with, the health professionals assistance program service committee to provide providing services for the or on behalf of a licensing board's health professionals assistance program.

Section 2. That a NEW SECTION be added:

36-2A-1.1. Health professional assistance program--Alternative to discipline.

A board may use the program as an alternative to, or in conjunction with, other sanctions that may be imposed by the board.

Section 3. That § 36-2A-2 be AMENDED.

36-2A-2. Health professional assistance program--Standards.

Health-related licensing boards listed under Title 36 may jointly A board may conduct, or contract for services with an entity to conduct, a health professionals assistance program to protect the public from impaired persons regulated by the boards board. The health professionals assistance program does not affect a board's authority to discipline violators of a board's practice act.

A health professionals assistance program shall include the following standards:

(1) Program personnel qualified to manage mental health and substance use related issues and disorders;

(2) Admission criteria;

(3) Criteria for denial of admission pursuant to § 36-2A-8;

(4) Program participation components;

(5) Termination criteria; and

(6) Successful discharge criteria.

Section 4. That § 36-2A-3 be REPEALED.

36-2A-3. Program service committee--Duties.

Section 5. That § 36-2A-4 be REPEALED.

36-2A-4. Evaluation committees.

Section 6. That § 36-2A-5 be REPEALED.

36-2A-5. Duties of evaluation committee.

Section 7. That § 36-2A-6 be AMENDED.

36-2A-6. Application to program--Admission evaluation.

Any An applicant may that meets admission criteria shall be allowed access to the health professionals assistance program by self-referral, board referral, or referral from another person or agency, such as an employer, coworker, or family member. An evaluation of the admission application shall be conducted by program personnel. The health professionals assistance program. Program personnel shall advise the applicant of the program requirements and the implications of noncompliance and shall secure the cooperation of the applicant with the health professionals assistance program. Any an agreement with the applicant that includes participation components before the applicant enters the program. An applicant who refuses to cooperate with the program admission evaluation shall process may be reported to the applicable participating board or entity.

Section 8. That § 36-2A-7 be AMENDED.

36-2A-7. Eligibility.

Admission to the health professionals assistance program is available to any person who is impaired meets the admission criteria and:

(1) Holds licensure as a health care professional in this state;

(2) Is eligible for and in the process of applying for licensure as a health care professional in this state; or

(3) Is enrolled as a student in a program leading to licensure as a health care professional.

Section 9. That § 36-2A-8 be AMENDED.

36-2A-8. Denial of admission.

The evaluation committee may deny admission Admission to the health professionals assistance program may be denied if the applicant:

(1) Is not eligible for licensure in this state;

(2) Diverted controlled substances for other than personal use;

(3) Creates too great a risk to the public by participating in the health professionals assistance program as determined by the evaluation committee and program personnel; or

(4) Has engaged in sexual misconduct that meets the criteria for denial of admission established by the participating boards; or

(5) Has been terminated from any health professional assistance program.

Section 10. That § 36-2A-9 be AMENDED.

36-2A-9. Participation components.

The health professionals assistance program participation components may include requirements for treatment and continuing care, work-site monitoring, practice restrictions, random drug screening, support group participation, filing of reports, compliance documentation, and other requirements as necessary to manage mental health or substance use related issues or disorders and for successful completion of the health professionals assistance program.

Section 11. That § 36-2A-10 be REPEALED.

36-2A-10. Fees and costs.

Section 12. That § 36-2A-11 be REPEALED.

36-2A-11. Termination of participation--Report to board.

Section 13. That § 36-2A-12 be AMENDED.

36-2A-12. Confidentiality of participants' records.

All records of health professionals assistance program participants are confidential and are not subject to discovery or subpoena. Only authorized program personnel and health professionals assistance evaluation committee members may have access to participant records unless the participant voluntarily provides for written release of the information. A participating board may only have access to records of participants who were referred by the board, who refused to cooperate with the health professionals assistance program, or who have been terminated by the health professionals assistance program in accordance with § 36-2A-11. Records shall be maintained in accordance with § 36-2A-14.

Section 14. That § 36-2A-13 be AMENDED.

36-2A-13. Immunity for reports and actions related to duties.

Any person, agency, institution, facility, or organization making reports to the participating board or health professionals assistance program regarding an individual suspected of practicing while impaired or reports of a participant's progress or lack of progress in the health professionals assistance program is immune from civil liability for submitting a report in good faith to the health professionals assistance program. Members, agents, and staff of the participating boards, health professionals assistance program evaluation committees, and health professionals assistance board and program personnel acting in good faith are immune from civil liability for any actions related to their duties under this chapter.

Section 15. That § 36-2A-14 be AMENDED.

36-2A-14. Promulgation of rules.

The Board of Nursing and the Board of Medical and Osteopathic Examiners, with the approval of the other participating boards, may jointly promulgate rules pursuant to chapter 1-26 for implementation of the Each board conducting a health professionals assistance program, including may promulgate rules, pursuant to chapter 1-26, pertaining to:

(1) Committee structure and program personnelProgram structure;

(2) Admission criteria;

(3) Criteria for denial of admission;

(4) Required participation components;

(5) Termination of participation and discharge criteria;

(6) Confidentiality and retention of program records;

(7) Annual Program evaluation of effectiveness of the program criteria; and

(8) Participation fees; and

(9) Procedures for establishing the annual budget and prorating program expenses.

Section 16. That § 36-2A-15 be REPEALED.

36-2A-15. Determination of expenses to be borne by participating boards.

Signed March 8, 2021